Chapter 13

The 8th Amendment protects three rights:That excessive bail shall not be requiredThat excessive fines shall not be imposedThat 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

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

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 Things change…

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 proceedings2. It maintains the presumption of innocence

by allowing individuals not yet convicted of a crime to avoid continued incarceration

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

Bail itself is not guaranteed in the Constitution 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 8th Amendment not incorporated under the

14th Amendment to apply to the states But, most state Constitutions have similar

provision

The Bail Reform Act of 1966Helped indigent defendants who were unable

to post bailEnsured 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 (ROR/RPR) The court trusts them to appear in court

when required (Looks at background, community ties, record, employment, etc.)

The Bail Reform Act of 1984Granted 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 groundsPreventive Detention

Eliminates presumption in favor of pretrial release if prosecution can prove above…

The Bail Reform Act of 1984 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)

Racketeering/conspiracy case where pretrial detention under this act did not violate the 8th Amendment Protect community!!

Is this FAIR? People deemed “public dangers” awaiting trial in prison

The Bail Reform Act of 1984Stack v. Boyle (1951)

Bail set at a figure higher than an amount reasonably calculated to fulfill its purpose is excessive under the 8th Amendment

Again, 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

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 No government action…Because civil cases are between private

parties and the Constitution regulates the government

In civil lawsuits, the plaintiff seeks monetary damages from the defendant to right an alleged wrongCompensatory 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 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

Forfeited assets must be used to further a department’s crime-fighting mission

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 In this case, $200 drug charge – seizure of $32,000

This is the first decision on the limitation of the government’s power to seize property connected with illegal activity Another example: US v. Bajakajian (1998): $357,144 forfeiture

is grossly disproportionate to a Customs offense “worth” $10,000

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 on government that property is subject to forfeiture is “preponderance of the evidence”

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

The final clause of the 8th Amendment What is “cruel and unusual?”

Depends on what society believes it to be!!! Consider different societies/cultures

Trop v. Dulles (1958): Clause must draw its meaning from “evolving standards of decency that mark the progress of a maturing society”

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

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

The Supreme Court established three criteria for proportionality analysis in Solem v. Helm (1983) (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.

GENERAL RULE UNDER 8TH AMENDMENT – PUNISHMENTS MUST BE PROPORTIONAL OR DIRECTLY RELATED TO THE CRIME COMMITTED 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

Graham v. FL (2910) – Life sentence without possibility of parole for juvenile convicted of a non-homicide offense violates the 8th Am. (Need opportunity of possible release!)

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)

Ingrahan, a junior high student, was hit more than 20 times with a paddle for disobeying a teacher

SUPREME COURT held that 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

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?

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

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

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

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

sentencingGiven little 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

The five means of execution currently used in the United States (See chart page 410 – though realize some of this info has changed!)Hanging Firing squad Electric chair Gas chamber Lethal injection

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

Furman v. Georgia (1972)Landmark case in which Supreme Court called for

a ban on the death penalty in GeorgiaRuled 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; Basically told the legislature to create better death penalty laws NOTE: All 9 Justices wrote separate opinions trying to

define “cruel and unusual punishment”

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

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, but capital cases now require bifurcated trials!

Since ¾ of the states re-enacted death penalty statutes, the “unusual” punishment was harder for Court to grasp

Base v. Rees (2008)Argued lethal injection was cruel and

unusual punishment (Pain during process/botching)

7-2 decision – Court held that the three-drug protocol did not violate the 8th Amendment Method must present a substantial or objectively

intolerable risk of serious harm

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

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

AgeRoper v. Simmons (2005)

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

RaceMcClesky 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 RetardationAtkins v. Virginia (2002)

The Supreme Court has prohibited executing the mentally retarded

The Mentally IllThe Supreme Court banned execution of the

insaneFord v. Wainwright (1986)

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

All but one state that has the death penalty require automatic appellate review of death sentencesSouth Carolina allows a defendant to waiver

automatic review However, there is no automatic

Supreme Court review Because capital punishment is the

ultimate sanction a government can inflict, appeals are certain and lengthy

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

Courts are continued to hear matters pertaining to the death penalty and specifically how potential jurors object or favor the death penalty Can remove jurors on both sides with strong

beliefs 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

Jones v. US (1999)Supreme Court said juries don’t need to be

told the consequences of a deadlock Ring v. Arizona (2002)

Court ruled that capital punishment can be imposed only by a jury or a judge following a jury’s recommendation Not retroactive

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

DNA and “Innocence” projects impact opinion

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

Cases based on the 8th Amendment for prisoners include: Overcrowding Solitary confinement Corporal punishment Physical abuse Use of force Food – NUTRALOAF! Second-hand smoke Treatment and rehabilitation, the right not to be treated Death penalty

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

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