Eighth Amendment Issues


The 8th Amendment contains three specific provisions that protect constitutional rights:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

We summarize these three rights as being individual described in the three clauses of the 8th Amendment:

  • The Excessive Bail Clause
  • The Excessive Fines Clause
  • The Cruel and Unusual Punishments Clause

All of the provisions require interpretation.  What is “excessive bail”?  What is an “excessive fine”?  What punishments are “cruel and unusual”?

The U.S. Supreme Court has not given much attention to the Excessive Bail Clause.  Indeed, it is one of the few rights in the Bill of Rights that has not yet been incorporated and therefore does not apply to bail amounts and conditions imposed in state court proceedings.   

Bear in mind that the Excessive Bail Clause does not guarantee that bail will be set in order for an arrested defendant to gain release pending trial.  It should be understood as saying, “IF bail is set for a defendant in federal court, the amount and conditions of bail cannot be ‘excessive.’”  Under federal law (Bail Reform Act of 1984), if a U.S. magistrate judge or district judge finds that there is no amount of bail and no conditions of release that would prevent the defendant from fleeing or endangering the community, then the defendant can be ordered held in jail without bail until there is a plea agreement or trial to conclude the criminal case (United States v. Salerno and Cafaro, 1987).

The Excessive Fines Clause is the provision of the Bill of Rights most recently incorporated and applied in state court proceedings.  The Supreme Court’s decision in Timbs v. Indiana (2019) [below] incorporated this clause of the 8th Amendment and provided guidance on the definition of an “excessive fine.”

The Cruel and Unusual Punishments Clause was incorporated and applied to the states in 1962 (Robinson v. California).  As illustrated in cases that will follow, this clause has been interpreted by the Supreme Court to affect policies and practices concerning capital punishment, the length of prison sentences, conditions of confinement in prisons, and other aspects of sentencing and punishment. 


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Criminal Procedure: Undergraduate Edition Copyright © 2022 by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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