eighth amendment: bail, fines, and punishment
TRANSCRIPT
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