Eighth Amendment to the United States

Constitution
From Wikipedia, the free encyclopedia
The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of
the United States Bill of Rights (ratifed December 15, 1791[1]) prohibiting the federal
government from imposing excessive bail, excessive fnes or cruel and unusual punishments,
including torture.
The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost
identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as
their ancestors in like cases have usually done...that excessive bail ought not to be required,
nor excessive fnes imposed, nor cruel and unusual punishments inficted."[3]
The provision was largely inspired by the case in England of Titus Oates who, after the
ascension of King James II in 1685, was tried for multiple acts of perjury which had caused
many executions of people whom Oates had wrongly accused. Oates was sentenced to
imprisonment including an annual ordeal of being taken out for two days pillory plus one day
of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S.
Supreme Courts Eighth Amendment jurisprudence.[4] The punishment of Oates involved
ordinary penalties collectively imposed in an excessive and unprecedented manner.[5] The
reason Oates did not receive the death penalty (unlike those whom he had falsely accused)
may be because such a punishment would have deterred even honest witnesses from
testifying in later cases.[6]
Englands declaration against "cruel and unusual punishments" was approved by Parliament
in February 1689, and was read to King William III and his wife Queen Mary II on the following
day.[7] Members of Parliament then explained in August 1689 that the Commons had a
particular regardwhen that Declaration was frst made to punishments like the one that had
been inficted by the King's Bench against Titus Oates.[7] Parliament then enacted the English
Bill of Rights into law in December 1689.[7]
In England, the "cruel and unusual punishments" clause was a limitation on the discretion of
judges, and required judges to adhere to precedent. According to the great treatise of the
1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but
its discretion is regulated by law. For the bill of rights has particularly declared, that excessive
fnes ought not to be imposed, nor cruel and unusual punishments inficted: (which had a
retrospect to some unprecedented proceedings in the court of king's bench, in the reign of
king James the second)....[8]
Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights
of 1776, and the Virginia convention that ratifed the U.S. Constitution recommended in 1788
that this language also be included in the Constitution.[9]
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction
would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress
may infict unusual and severe punishments.[10] Henry emphasized that Congress could
otherwise depart from precedent: "What has distinguished our ancestors?--That they would
not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the
practice of the civil law, in preference to that of the common law. They may introduce the
practice of France, Spain, and Germany...."[11] Ultimately, Henry and Mason prevailed, and
the Eighth Amendment was adopted. James Madison changed "ought" to "shall", when he
proposed the amendment to Congress in 1789.[9]