Bill of Rights – Eighth Amendment – Excessive Bail and Cruel and Unusual Punishment

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

The Eighth Amendment, or Amendment VIII of the United States Constitution is the section of the Bill of Rights that states that that punishments must be fair, cannot be cruel, and that fines that are extraordinarily large cannot be set. The Eighth Amendment was introduced as a part of the Bill of Rights into the U.S. Constitution on September 5, 1789 and was voted for by 9 out of 12 states on December 15, 1791.

Most often mentioned in the context of the death penalty, the Eighth Amendment prohibits cruel and unusual punishments, but also mentions “excessive fines” and bail.  The “excessive fines” clause surfaces (among other places) in cases of civil and criminal forfeiture, for example when property is seized during a drug raid.

The following might make the Eighth Amendment easier to understand:

  • “Excessive bail shall not be required, nor excessive fines imposed”: – The courts are not allowed to assign an accused person a large and excessive amount of money for bail. This is because if they could, a judge would have the chance to judge someone early on and set a bail amount based on that. Bail is the property or money given to a court as a promise that the accused person will return for his trial. If the accused person does not show up, he or she will lose their bail money or property. The amount of bail assigned depends on the type of crime committed and the chance that the accused person will return for his trial. If the crime is very serious, the bail will be higher
  • “Nor cruel and unusual punishments inflicted” – According to the Eighth Amendment, punishments cannot be cruel or unusual. However, it is not exactly clear what cruel and unusual really means. When the Eighth Amendment was written, the Framers were considering situations where severe punishments would be used, such as being strangled, branded, or burned, or being locked in stocks. The Eighth Amendment works to prevent these types of punishments. 

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