“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
This amendment actually gives people a lot of fits. Mostly because the terms ‘excessive’ and ‘cruel’ and ‘unusual’ are such relative terms. I am pretty sure that the founders understood this because they knew times would change and that what would be tolerated in one society would be declared unusual by another.
However, one thing though we can go on is a previous amendment (number five) makes this statement that a person cannot be – “deprived of life, liberty, or property, without due process of law;” The implication is that if there is due process of law those things can be deprived or taken from a person.
I doubt the founders would have wanted something that contradicted itself when they wrote the Bill of rights. They would not have considered what they wrote in the fifth amendment to contradict this one. If life. liberty and removal of property could be removed due to due process of the law they would not have considered the removal of these things to be cruel, unusual or excessive. The issue here is degree or perhaps simply making sure justice is served.
The issue of capital punishment comes up often and for me it is an all or nothing proposition. Either do it for everyone who kills a fellow citizen or don’t do it at all. States where they only offer up the death penalty for police officer deaths or children are basically saying by implication that those murders are more important than others. If life is life, then the penalty for taking any life should be the same.
While capital punishment seems to get the lions share of attention, however, it is interesting that the issue of excessive fines or bails never gets addressed. For me what makes this excessive is not the degree, it is the lack of uniformity. one guy get convicted of a crime and he gets 20 years, but the next guy gets only 15 for the exact same crime. To me at that point then the first guys sentence then becomes excessive. Bail gets even worse, one guy does a crime and he gets his bail set at 10,000 dollars and the next for the same crime gets 20,000. It is the lack of some common standard that bothers me the most. At least with the Bible you get the same punishment and process for the same crime.
Mostly things that ended right away with this amendment was putting people in the stocks and torture of various kinds. But also they were tired of doing something minor and getting a huge fine for it. For me, this has come out in the “I threw a piece of paper on the ground and got five years” or “violated a don’t walk your dog here and got a 1000 dollar fine” kind of stuff. These kind of laws drive me nuts and I suspect they did the founding fathers as well, so they put this amendment in to stop it. Unfortunately, most of these laws go forward since there is little concern for being constitutional. Once again, the error in judgment goes in favor of the citizen and the notion of innocent until proven guilty.
If there is an amendment that creates a mess more than any other it is this one. It is the relative words and the words that lead to interpretation that are both its strength and greatest weakness.