The Eighth Amendment prohibits certain types of punishment: excessive bail, excessive fines, and cruel and unusual punishments.1 As discussed in more detail in the following essays, these prohibitions were intended to protect persons convicted of crimes from government abuses of power.2 Viewed broadly, the Eighth Amendment responded to these historically grounded concerns about disproportionate or cruel punishments by attempting to ensure that punishment is “proportioned to both the offender and the offense.” 3 What is excessive is also determined by reference to modern standards; the Supreme Court has suggested proportionality may evolve over time.4 Out of the Eighth Amendment’s three clauses, the bar on cruel and unusual punishment has been most frequently interpreted by the Supreme Court, likely in part due to inherent ambiguities in determining what qualifies as cruel or unusual.5

The Eighth Amendment generally applies in criminal proceedings, as the most common locus of government punishment, but the Supreme Court has held the Eighth Amendment’s prohibition on excessive fines can apply in civil forfeiture proceedings, noting that the text of the amendment is not limited to “criminal” cases.6 Instead, the Court said the relevant constitutional test is whether the government is imposing “punishment,” focusing on the purpose of a sanction.7 In addition, although the Eighth Amendment (like the rest of the Bill of Rights) was understood originally to apply only to the federal government, the Supreme Court has held its prohibitions were incorporated in the Fourteenth Amendment’s Due Process Clause, making them applicable to states.8

Footnotes

1

Austin v. United States, 509 U.S. 602, 609 (1993) ( “The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government’s power to punish.” ); Timbs v. Indiana, No. 17-1091, slip op. at 2 (U.S. Feb. 20, 2019) ( “Like the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’ and '[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority.” ).

2

See, e.g., Ingraham v. Wright, 430 U.S. 651, 666 (1977); Weems v. United States, 217 U.S. 349, 372–73 (1910).

3

Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)) (internal quotation marks omitted). See also, e.g., Atkins v. Virginia, 536 U.S. 304, 311 (2002) ( “The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” ).

4

Atkins, 536 U.S. at 311–12.

5

For example, one defender of the Constitution, responding to the claim that the initial document should have included a prohibition on cruel and unusual punishments, argued that the term “'cruel and unusual’ surely would have been too vague to have been of any consequence, since [it] admit[s] of no clear and precise signification.” James Iredell, Marcus, Answers to Mr. Mason’s Objections to the New Constitution (1788), reprinted in 5 The Founders’ Constitution 376 (Philip B. Kurland & Ralph Lerner eds., 1987).

6

Austin v. United States, 509 U.S. 602, 607–08 (1993).

7

Id. at 610.

8

Timbs v. Indiana, No. 17-1091, slip op. at 2–3 (U.S. Feb. 20, 2019) (noting this history and holding the prohibition against excessive fines incorporated); Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (recognizing assumed incorporation of prohibition against excessive bail); Robinson v. California, 370 U.S. 660, 667 (1962) (recognizing application of prohibition on cruel and unusual punishment to states).