Parker – Eighth Amendment

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The Eighth Amendment of the United States Constitution is interesting and especially difficult to grapple with because of the lack of clarity in the writing of it. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Prior to the Revolutionary War, the Americans had been under British rule and had witnessed different forms of harsh punishments. They also wanted to protect individual liberties as much as possible and by preventing “Excessive bail,” they took some power away from the government because ultimately, the colonists were still afraid of giving too much power to the government. Although confusing, there are only so many possible interpretations of such simple writing. A common one is that bail should not be priced at a very high amount and that there would be a prohibition of inhumane and barbaric punishments and consequences.

The problem with the phrasing of the Eighth Amendment is the phrasing is overly simple to the point where it is nearly impossible to know how the author of this section intended for it to be interpreted. For example, Some people think that a “Cruel” punishment is going to jail in the first place and others think that the death penalty falls under “Cruel” punishments. A common claim made by legal scholars is that the treatment of the Eighth Amendment should evolve over time as society changes. Obviously the definition of “Cruel and unusual” will change and has changed over time. When the constitution was being written, people were still getting branded and hanged in public. Those forms of punishment haven’t been used in the states in an extremely long time. 

A famous court case that involves the Eighth Amendment is Atkins vs. Virginia. The case dealt with the question: is it cruel or unusual punishment to sentence people with intellectual disabilities to the death penalty? Ultimately, it was deemed cruel and or unusual because it was decided that people with intellectual disabilities lacked understanding of what the causes of their actions were and that they did not understand the consequences of them. A major factor in the decision of this case was in fact, the eighth amendment because ultimately, putting mentally challenged people to the death penalty was deemed “Cruel and unusual.”  

This year, we have learned about many forms of harsh and brutal punishments, so this was especially interesting to see that a country tried to mitigate them. It’s also fascinating to see how hard the authors tried to move away from British themes and practices; such as “Cruel and unusual” punishments. Out of all the arguments surrounding the Eighth Amendment, I find that the perception of it should and will continue to change over time. In my opinion, it is completely irrational to treat the Eighth Amendment like it was treated back in the eighteenth century because we’re not living in the eighteenth century. Dealing with issues from an eighteenth century perspective today, in the twenty-first century, is almost laughable if you think about how much has changed in the last 250 years. If I could, I would keep this clause in the constitution, but I would make sure to change the language to something more specific and have it reflect the current time period. It would also make sense to add something like, “The eighth amendment will be amended every 50 years” or something of that nature. Overall, I do think that the Eighth Amendment is important to the constitution, but with some changes, it could be much more valuable and applicable to solving different cases.

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Tags: amendment, bail, bill-of-rights, constitution, cruel-and-unusual, eighth, eighth-amendment, excessive-bail, goldin, parker, parker-eighth-amendment, parker-goldin, punishment