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When the Constitution was ratified, it gave the federal government significantly more power than the Articles of Confederation had had. One of these powers was to decide what constituted a federal crime, and what the subsequent punishment would be. There were worries that the government would create and use torture to oppress citizens. For this reason, the Eighth Amendment was added. In its most basic form, the amendment stops the federal government from doing anything too harsh or barbarous; examples pointed out by debaters at that time include the Spanish Inquisition. Torture as a means of punishment was deemed unconstitutional, as was torture as a means to gain information or a confession. Additionally, the amendment prohibits the federal government from making bail money too expensive and from fining citizens excessively.
Despite the previous two points, the majority of debates surrounding the Eighth Amendment focus on the point surrounding punishment. When discussing this amendment, scholars argue if courts should judge punishments by the 1791 standards that were present during the amendment’s creation, or by modern standards. One scholar, John F. Stinneford, makes a case that the Eighth Amendment should be viewed through 1791 standards. He says that a more modern interpretation would allow the Supreme Court to use the vague interpretation to accomplish their own partisan goals, pointing to Judges Scalia and Thomas’s severely narrow definition of the Eighth Amendment to prove his point. On the contrary side of the argument, Bryan A. Stevenson argues that the Eighth Amendment should be updated in the minds of the court, in order to preserve equality and adjust to the standards of decency in America as they evolve over time. Stevenson uses concrete examples to point out that these notions have changed over time in the past, pointing out how, for example, whipping is now considered unconscionable.
In this fashion, the court needs to prohibit modern punishments that did not exist in 1791. He points out the practice of extended solitary confinement as an example of a punishment that had not been implemented in 1791, but he thinks would be considered cruel. He says that the Amendment serves the country well, but that it must be extended to more than just its historical context. Ultimately, Stevenson’s argument is more convincing, utilizing extremely relevant and specific examples of how the Eighth Amendment’s vagueness has been detrimental. Stinneford makes an interesting point on potential abuse in the Supreme Court, but we have some major disagreements – the main one being that he is worried about the abolition of the death penalty, which he argues is a justifiable punishment. Fundamentally, I disagree with that conclusion, as does Stevenson. Additionally, Stinneford argues that the Eighth Amendment has protected Americans from the federal government, but I’d argue that it has not actually stopped cruel and unusual punishments from occurring: one only needs to look at the government practicing solitary confinement, drug cocktails, the electric chair, or waterboarding. I certainly find these punishments cruel and unusual, and I can find no constitutional or moral justification for any of them, no matter the context surrounding the Eighth Amendment. Either the federal government admits that it does not follow this amendment, or the meaning of “cruel and unusual” is expanded and these practices are stopped.