The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.
The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment. In some ways, the Clause is shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?
We do know some things about the history of the phrase “cruel and unusual punishments.” In 1689 – a full century before the ratification of the United States Constitution – England adopted a Bill of Rights that prohibited “cruell and unusuall punishments.” In 1776, George Mason included a prohibition of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, this same prohibition became the central component of the Eighth Amendment to the United States Constitution.
When the United States Constitution was first ratified by the states, it did not contain a Bill of Rights, and it did not prohibit cruel and unusual punishments. These protections were not added until after the Constitution was ratified. The debates that occurred while the states were deciding whether to ratify the Constitution shed some light on the meaning of the Cruel and Unusual Punishments Clause, because they show why many people thought this Clause was needed.
The proposed Constitution made the federal government much more powerful than it had been under the Articles of Confederation. One of the most significant of these new powers was the power to create federal crimes and to punish those who committed them. Opponents of the Constitution feared that this new power would allow Congress to use cruel punishments as a tool for oppressing the people. For example, Abraham Holmes argued that Congress might repeat the abuses of “that diabolical institution, the Inquisition,” and start imposing torture on those convicted of federal crimes: “They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.” Patrick Henry asserted, even more pointedly than Holmes, that the lack of a prohibition of cruel and unusual punishments meant that Congress could use punishment as a tool of oppression: “Congress . . . . may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime. They . . . will tell you that there is such a necessity of strengthening the arm of government, that they must . . . extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.” Largely as a result of these objections, the Constitution was amended to prohibit cruel and unusual punishments.
As these debates demonstrate, the Cruel and Unusual Punishments Clause clearly prohibits “barbaric” methods of punishment. If the federal government tried to bring back the rack, or thumbscrews, or gibbets as instruments of punishment, such efforts would pretty clearly violate the Eighth Amendment. Most people also agree that the Cruel and Unusual Punishments Clause now limits state power as well as federal power, because the Fourteenth Amendment prohibits states from abridging “the privileges or immunities of citizens of the United States” and from depriving “any person of life, liberty, or property, without due process of law.”
But once we get beyond these areas of agreement, there are many areas of passionate disagreement concerning the meaning and application of the Cruel and Unusual Punishments Clause:
First and foremost, what standard should the Court use in deciding whether a punishment is unconstitutionally cruel? Should it look to the standards of 1791, when the Eighth Amendment was adopted? Should it look to contemporary public opinion? Should it exercise its own moral judgment, irrespective of whether it is supported by societal consensus? Should it look to some other standard?
Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation?
Third, does the Cruel and Unusual Punishments Clause prohibit the death penalty? Many argue that capital punishment fails to advance any public good, that it is of a past era, and it should be eliminated. Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, and that the death penalty may deter others from committing atrocious crimes. They also point out that the punishment is authorized in a majority of states, and public opinion polls continue to show broad support for it.
Finally, are some modern methods of punishment – such as the extended use of solitary confinement, or the use of a three-drug “cocktail” to execute offenders – sufficiently “barbaric” to violate the Eighth Amendment?
There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them.
Jodee R. Rankin is a 2019 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. Yet while these constitutional limits on governmental powers have protected individuals, the protection of corporations from excessive fines has remained a long-standing question. But, last month, the Colorado Supreme Court, in Colorado Department of Labor and Employment, Division of Workers’ Compensation v. Dami Hospitality, WL 2332246 (Colo. June 3, 2019), concluded that the protections of the Excessive Fines Clause are not so limited—corporations are clearly covered by the text and the purpose of the Eighth Amendment.
The Colorado case involved the owner-operator of a Denver motel, employing four to ten employees at a given time. As an employer, Dami was required to maintain workers’ compensation insurance. When the Division of Workers’ Compensation discovered that Dami’s insurance had lapsed for nearly four years, the Division calculated Dami’s fine under the applicable statutory and regulatory framework. The resulting fine amounted to $841,200.00—an amount that exceeded the motel’s annual income.
Dami, through its registered agent, explained its failure to maintain insurance, informed the Division that it was unable to pay the fine, and requested a penalty more reasonable to the size of the business. The Division responded with a settlement offer of $425,000.00, the minimum per-diem fine allowed by the statute. Dami refused the offer and instead sought review. Despite Dami’s efforts, the Division upheld the fines. Next, Dami appealed to the Industrial Claims Appeals Office (“ICAO”).
The ICAO upheld the Division’s order, but this time Dami’s efforts were not entirely rejected—Dami’s excessive fines argument survived and the matter was remanded back to the Division for review under a standard borrowed from Fourteenth Amendment jurisprudence. Again, the Division upheld the order, so Dami appealed to the court of appeals. The court of appeals assumed that the Excessive Fines Clause applied to corporations but did not decide so. Finding that the Division incorrectly applied the Associated Business Product factors (the borrowed Fourteenth Amendment standard), the court of appeals remanded the order to the Division to recalculate. The Division petitioned for certiorari.
Applicability of the clause
The Colorado Supreme Court examined both the purpose of the clause as well as the appropriateness of applying it to corporations. It found that the clause doesn’t suggest that its protections are limited to natural persons—it’s simply a directive on the government not to impose excessive fines. Arguing that the other clauses of the amendment provide textual clues to the limits of protection afforded by the excessive fines clause, the Division urged that the maxim noscitur a sociis should apply (meaning that the phrase should be informed by its neighboring words). Because the Supreme Court had already rejected that interpretation in Austin v. United States, 509 U.S. 602 (1993), the court instead focused on the purpose of the clause—the prevention of government overreach and abuse of power. The question boiled down to whether the purpose of the clause supported its application to corporations, which turned out to be a straightforward analysis covered succinctly in the court’s opinion.
Contrasting those guarantees that are purely personal and limited to the protection of individuals—such as the privilege against self-incrimination and the right to privacy—with the payment of penalties, the court reasoned that the latter is something a corporation can do and is therefore protected from excessive fines under the clause. The court relied on Hale v. Henkel, 201 U.S. 43 (1906), and reasoned that when a guarantee protects government overreach, constitutional limitations on government power can apply to protect a corporation just as it protects a natural person. Analyzing the text and purpose of the clause closely, the court came to the clear conclusion that corporations are protected by the Excessive Fines Clause.
At the same time Dami was being decided, specifically after oral argument, the U.S. Supreme Court held in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the Excessive Fines Clause is an incorporated protection applicable to the states. Therefore, Colorado’s Division of Workers’ Compensation became subject to its limits.
The gross disproportionality standard
After the court determined that the clause did apply, it considered the appropriate standard. The U.S. Supreme Court, in United States v. Bajakajian, 524 U.S. 321 (1998), described the touchstone of the constitutional inquiry under the Excessive Fines Clause as “the principle of proportionality.” The Colorado Supreme Court followed suit and reasoned that the Bajakajian Court had developed an applicable standard. The Bajakajian gross-proportionality standard involves consideration of the amount of the fine in proportion to the gravity of the offense and includes an evaluation of the essence of the crime/offense, whether the defendant fits into the class of persons at which the statute was directed, and the nature of the harm caused. And although the Supreme Court hasn’t addressed whether the defendant’s ability to pay the fine should be taken into consideration, the Dami court went beyond Bajakajian as it believed the defendant’s ability to pay to be “persuasive evidence” of a fine’s excessiveness.
Despite the long-standing question and lack of doctrinal clarity surrounding whether corporations are protected from excessive fines, the Colorado Supreme Court took a logical and well-reasoned approach that considered the clause’s text and its purpose; an approach that other courts should follow. No loophole in the Eighth Amendment’s text exempts business enterprises from the Excessive Fines Clause’s protection. That constitutional provision provides an explicit limit to the reach and power of the government to penalize, a limit that extends to all who are subjected to its reach.
The Eighth Amendment provides three essential protections for those accused of a crime, on top of those found in the Fifth and Sixth Amendments: It prohibits excessive bail and fines, as well as cruel and unusual punishments.
We can trace protection against cruel and unusual punishments much further back than the Eighth Amendment or even the United States Constitution. In 1689, the British government adopted a Bill of Rights that included such protection. In 1776, Charles Mason included it in the Declaration of Rights created for the Commonwealth of Virginia.
And in 1791, it was added to the United States Constitution. Supporters of the Eighth Amendment feared that without it, the federal government would abuse its power to create federal crimes and punishments.
What the Eighth Amendment Says
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Frequently Asked Questions
What is the most important part of the Eighth Amendment?
The most important and arguably the most controversial portion of the Eighth Amendment is the protection against cruel and unusual punishment. But it can also be the most confusing. What do we mean by “cruel?” What makes a punishment “unusual?” Answering these questions has been the job of the Supreme Court.
Can you sue for cruel and unusual punishment?
Yes. Someone whose Eighth Amendment or other civil rights have been violated can sue the government to have their conviction overturned or seek other damages. It’s important to speak to an attorney in these situations to better understand your options.