Ch13

THE 8TH AMENDMENT: BAIL, FINES AND PUNISHMENT

Chapter 13

Introduction

The 8th Amendment protects three rights: That excessive bail shall not be required That excessive fines shall not be imposed That cruel and unusual punishment shall not

be inflicted

This Amendment has a lot of controversy because of interpretations about whether the death penalty is cruel and unusual

A Brief History of Punishment Massachusetts Body of Liberties (1641)

enacted a right to bail and prohibited cruel and unusual inhumane punishment

Massachusetts Bay Colony sought to eliminate English punishments as cutting off hands and burning at the stake

A Brief History of Punishment The Body of Liberties allowed the death

penalty for religious offenses such as blasphemy but not for burglary and robbery

Society itself determined and continues to decide what is reasonable and unreasonable punishment

Our criminal justice system is responsive, not reactive, to social changes

Bail

Money or property pledged by a defendant for pretrial release from custody that would be forfeited should the defendant fail to appear at subsequent court proceedings

Bail serves two purposes:1. Helps to assure the appearance of the

accused at court proceedings

2. It maintains the presumption of innocence by allowing individuals not yet convicted of a crime to avoid continued incarceration

Bail

Also allows individuals to: Prepare a defense To continue earning income if employed

Bail itself is not guaranteed Only excessive bail is prohibited which is

not clearly defined Bail may be denied in capital cases and

when the accused has threatened possible trial witnesses

The Evolution of Legislation and Case Law on Bail The Bail Reform Act of 1966

Helped indigent defendants who were unable to post bail

Ensured that poor defendants would not remain in jail only because they could not afford bail

Required judges to consider other ways for defendants to guarantee their return to trial

The primary bail condition was release on recognizance The court trusts them to appear in court when

required


Granted judicial authority to include specific conditions of release for the community's safety

Allows judges to consider the potential criminal conduct of those accused of serious offenses and deny bail on those grounds Preventive Detention


Jackson v. Indiana (1972) Government may detain dangerous defendants

who may be incompetent to stand trial

Addington v. Texas (1979) Government may detain mentally unstable

individuals who present a public danger

United States v. Salerno (1987) Pretrial detention under this act did not violate

the 8th Amendment


Stack v. Boyle (1951) Bail set at a figure higher than an amount

reasonably calculated to fulfill its purpose is excessive under the 8th Amendment

The excessive bail prohibition has never been formally incorporated to apply to the states under the 14th Amendment, allowing states to deal with it through their constitutions, legislation and case law

Fines

The prohibition against excessive fines has not been incorporated, so it does not apply to the states

Excessive fine prohibition does not apply in the civil area Because civil cases are between private

parties and the Constitution regulates the government

Fines

In civil lawsuits, the plaintiff seeks monetary damages from the defendant to right an alleged wrong Compensatory damages- reimbursement

to the plaintiff for actual harm done medical expenses or lost business

Punitive damages- fines above and beyond actual economic loss to punish the defendant in a civil trial Additional payments to the wrongdoer and a

warning to others not to engage in similar conduct

Asset Forfeiture and the Prohibition against Excessive Fines Asset Forfeiture

The seizure by the government, without compensation, of money and property connected with illegal activity

Property connected with illegal activity may be forfeited when used as a conveyance to transport illicit drugs

Real estate used in association with a crime and money or other negotiable instruments obtained through criminal activity also can be seized and is considered a civil sanction by the government

Asset Forfeiture and the Prohibition against Excessive Fines

Austin v. United States (1993) The Supreme Court ruled that the 8th

Amendment prohibition against excessive fines applies to civil forfeiture proceedings against property connected to drug trafficking

The amount seized must bear some relation to the value of the illegal enterprise under the 8th Amendment

This is the first decision on the limitation of the government’s power to seize property connected with illegal activity

Asset Forfeiture and the Prohibition against Excessive Fines United States v. Ursery (1996)

Forfeiture is not double jeopardy because it is considered a civil sanction rather than an additional criminal action

Civil Asset Forfeiture Reform Act (2000) Key changes:

1. Burden of proof is “preponderance of the evidence”

2. Statute of Limitations is five years3. Destruction of property to prevent seizure

Cruel and Unusual Punishment

The final clause of the 8th Amendment

What is “cruel and unusual?” Depends on what society believes it to be

Coker v. Georgia (1977) Punishment is excessive and unconstitutional

if it:1. Makes no measureable contribution to

acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering

2. Is grossly out of proportion to the severity of the crime

Cruel and Unusual Punishment The courts have used three inquiries in

assessing constitutionality of cruel and unusual punishment:1. Whether the punishment shocks the

general conscience of a civilized society2. Whether the punishment is unnecessarily

cruel3. Whether the punishment goes beyond

legitimate penal aims

Cruel and Unusual Punishment The Supreme Court has established

three criteria for proportionality analysis (making the punishment fit the crime):1. The gravity of the offense and the

harshness of the penalty2. The sentences imposed on other

criminals in the same jurisdiction3. The sentences imposed for the

commission of the same crime in other jurisdictions.

Cruel and Unusual Punishment Ewing v. California (2003)

The court considered whether a sentence of 25 years to life imprisonment for felony theft under “three strikes” sentencing was cruel and unusual

5 to 4 vote held that California’s three strikes law did not violate the 8th Amendment

Cruel and Unusual Punishment The Supreme Court tackled the issue of

corporal punishment Causing bodily harm through physical force

(i.e. – whipping, flogging, or beating)

Ingraham v. Wright (1977) The state may impose such corporal

punishment as is necessary for the proper education of the child for the maintenance of group discipline

This ruling is controversial

Punishment Options

The American criminal justice systems continues to works with different ways to meet the goals of punishment Prison, parole, probation, intermediate

sentencing, fines, restitution, capital punishment

Not all of these options meet the expectations of the public or the politicians

The real challenge is to inquire whether existing means work and, when they do not, what might?

Physical Forms of Punishment Modern technology presents several

possible treatments for criminals: Antabuse & Depo-Provera

Other forms of physical bodily punishment for criminal have disappeared The death penalty remains in use and is

controversial

Capital Punishment

The death penalty dates back centuries Society has always struggled with balancing

societal needs with socially acceptable means of punishment

History records many methods of execution: Buried alive, thrown to wild animals, drawn and

quartered, boiled in oil, burned, stoned, drowned, impaled, crucified, pressed to death, smothered, stretched on a rack, disemboweled, beheaded, hanged or shot

Capital Punishment

In Biblical times Stoned to death or crucified

Greeks Poison from hemlock

Romans Beheading, clubbing, strangling, drawing and quartering or

feeding to lions Dark Ages

Submerged in water or boiled in oil, crushed by huge boulder or forced to do battle with skilled swordsman It was presumed that the innocent would survive and the guilt

would be killed

France Guillotine

Capital Punishment

Until the middle of the 19th century, the death penalty was the automatic sentence for a convicted murderer

20th century: Jurors were given more discretion in

sentencing Given no guidance by state law in choosing

between life and death sentences Jurors had total discretion in this decision,

which could not be reviewed on appeal

Means of Execution

The five means of execution currently used in the United States Hanging Firing squad Electric chair Gas chamber Lethal injection

Lethal injection is considered by some to be the only politically correct method

Is Capital Punishment Cruel and Unusual? Furman v. Georgia (1972)

Landmark case in which Supreme Court called for a ban on the death penalty in Georgia

Ruled its law as it stood was capricious and hence, cruel and unusual punishment

The Court ruled that the states had to give judges and juries more guidance in capital sentencing to prevent discretionary use of the death penalty

It held that Georgia’s death penalty was invalid

Is Capital Punishment Cruel and Unusual? Due to the Furman case, executions

were suspended across the country The federal government passed a new

death penalty law instituting a new two-step process (bifurcated trial):1. Determine innocence or guilt 2. Determine whether to seek the death

penalty

Is Capital Punishment Cruel and Unusual? Gregg v. Georgia (1976)

The Supreme Court reinstated the Georgia death penalty by sustaining its revised death penalty law

The death penalty itself is not cruel and unusual punishment

A capital case now requires a bifurcated trial

Lengthy Delays in Execution as Cruel and Unusual Do long delays in carrying out

executions constitute cruel and unusual punishment?

Thompson v. McNeil (2009) The Supreme Court rejected an appeal that

claimed a 32 year imprisonment caused by his appeals constituted cruel and unusual punishment

Who Can Be Executed?

As a general rule the Supreme Court has upheld the death penalty for murder but not other crimes

The punishment must be related to the crime

It only makes sense that the death penalty is only applied to a case where a life has been taken

The death penalty should only be applied in the most heinous crimes


Age Roper v. Simmons (2005)

The 8th and 14th Amendments will not permit executing anyone under 18 years of age for committing a crime

Race McClesky v. Kemp (1987)

Defendant presented a study contending that capital punishment in Georgia was filled with racial discrimination

Court rule that his study was valid, however, he had not proved the sentence was the result of racial discrimination


Mental Retardation Atkins v. Virginia (2002)

The Supreme Court has prohibited executing the mentally retarded

The Mentally Ill The Supreme Court banned execution of

the insane Ford v. Wainwright (1986)

An inmate that becomes mentally ill while in prison can not be executed

Appeals

All but one state that has the death penalty require automatic appellate review of death sentences

Because capital punishment is the ultimate sanction a government can inflict, appeals are certain and lengthy

Costs of the Death Penalty

Death penalty cases are very expensive One report showed California spending

$138 million per year on the death penalty The annual costs of incarcerating death

row inmates is significantly higher than those spent to incarcerate a prisoner serving a life sentence

States are debating the cost effectiveness of maintaining the death penalty

Juries and Capital Punishment Courts are continued to hear matters

pertaining to the death penalty and specifically how potential jurors object or favor the death penalty

Simmons v. South Carolina Court held that if the prosecution contends a

defendant should be put to death because he is too dangerous to ever return to society, without informing the jury of the option of a sentence of life without parole, this action could be considered a denial of due process

Juries and Capital Punishment Ring v. Arizona (2002)

Court ruled that capital punishment can be imposed only by a jury or a judge following a jury’s recommendation

Continuing Controversy

The death penalty will be an issue for years to come

With strong advocates and opponents, the core of the issue will be the question of values

The Gallup Poll results indicate that the public still supports the death penalty

Many researchers reject the notion that the death penalty acts as a deterrent to murder

8th Amendment and Corrections Due process and equal protection issues

are significant concerns in corrections because violations of these rights are unconstitutional

8th Amendment rights are divides into two categories:1. Actions against individual prisoners2. Institutional conditions

8th Amendment and Corrections Cases based on the 8th Amendment for

prisoners include: Overcrowding Solitary confinement Corporal punishment Physical abuse Use of force Treatment and rehabilitation, the right not to be

treated Death penalty

Prisoner Treatment and the 8th Amendment The Supreme Court has been called on to

determine whether conditions and actions within correctional institutions constitute cruel and unusual punishment

Rhodes v. Chapman (1981) Double-celling and crowding do not necessarily

constitute cruel and unusual punishment

Wilson v. Seiter (1991) Prisoners must prove prison conditions are

objectively cruel and unusual and show they exist because of officials’ deliberate indifference

Prisoner Treatment and the 8th Amendment Hope v. Pelzer (2002)

The conditions must be shown to involve wanton and unnecessary infliction of pain and to be grossly disproportionate to the severity of the crime warranting imprisonment

Handcuffing an inmate to a post as punishment for bad behavior was found to be cruel and unusual punishment

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