Introduction

Eighth Amendment Limits on Punishment

Introduction

The Eighth Amendment, ratified in 1791 as part of the Bill of Rights, is a single sentence of sixteen words.¹ It provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."² Each of its three clauses regulates a different governmental act. The first limits the price of release before trial, the second limits monetary penalties, and the third, the subject of this reading, limits the punishments the government may inflict. Because that third clause addresses the sanction itself, it asks about what the government may inflict after conviction, and it takes the finding of guilt as given. The procedures that produce that finding, such as the jury, counsel, and confrontation guarantees of the Sixth Amendment, answer a different question, whether the conviction was reached fairly.³ A trial can satisfy every one of those guarantees and still end in a sentence the Clause forbids, so the two inquiries never substitute for each other.

The Clause restrains state governments as well as Congress, because the Fourteenth Amendment carries it to the States. In Roper v. Simmons the Court confirmed that the provision applies to the States through the Fourteenth Amendment and applied it to a Missouri death sentence.⁴ Robinson v. California applied the Clause to a state law when it held that a California statute making the status of narcotic addiction a crime, even for a person who had never used or possessed narcotics in the state, inflicted cruel and unusual punishment in violation of the Fourteenth Amendment.⁵ Jones v. Mississippi later repeated that the Fourteenth Amendment incorporates the Clause against the States.⁶ Incorporation brings the federal body of interpretation along with it, so a decision about the Clause in a federal case and one in a state case speak to the same standard.⁷ A neighboring decision should not be confused with this one: Timbs v. Indiana incorporated the separate Excessive Fines Clause, so it supplies no authority for applying the ban on cruel and unusual punishments to the States.⁸

The words of the Clause do not say what makes a punishment cruel, or who decides. Roper v. Simmons states the two ideas on which the answer rests. The Clause guarantees each person freedom from excessive sanctions, a right that flows from the precept of justice that punishment for crime should be graduated and proportioned to the offense.⁹ That guarantee reaches even those convicted of heinous crimes, because it reaffirms the government's duty to respect the dignity of all persons.¹⁰ Robinson shows why the inquiry must be tied to a particular sanction and a particular wrong: ninety days in jail is not cruel or unusual in the abstract, but the question "cannot be considered in the abstract," since even one day in prison would be cruel and unusual punishment for the crime of having a common cold.¹¹ The question to carry through this reading is therefore whether the punishment is one the Clause forbids, either because it is barbaric or because it is excessive in relation to the offense and the offender. The reading takes that question in order: the principle that proportionality is measured by evolving standards of decency, the two tests for excessiveness, the method the Court uses to create categorical bars, the decisions applying that method to death sentences and to juvenile life without parole, and finally the federal rules for the hearing at which a lawful sentence is imposed.¹² The first step is to see why a clause written in 1791 is read by the standards of today.