In Defense of Freedom, Part VIII

I’ll be skipping over Amendment VII because it needs little interpretation, and 7A case law is sparse. Basically, 7A ensures similar rights to a trial by jury in civil proceedings as 6A does for criminal cases; so we will move on to the much more interesting Amendment VIII – sixteen words that mean a great deal.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

These words bear a not-so-coincidental likeness to a provision in the English Bill of Rights, and we have a British fellow by the name of Titus Oates to thank for this enumerated right. Mr. Oates, along with another fellow by the name of Tonge, fabricated the Popish Plot, which stirred up a bunch of anti-Catholic hysteria and resulted in the death or imprisonment of several people. Oates, a Baptist, alleged a Catholic plot to overthrow the British Crown and assassinate King Charles II. Charles reacted swiftly and sternly, and eventually 15 men were executed due to the effects of Oates’ concocted plot.

The truth eventually came out and Oates was arrested, tried and convicted of perjury. He was tossed out of Whitehall and given a heavy fine. It might have ended there except that Oates couldn’t keep his mouth shut. He denounced just about everyone, including the King’s brother, the Duke of York, who a few years later acceded to the throne as King James II. James had Oates arrested again, tried for sedition, and sentenced to life in prison and annual pillory.

Although the British commons recognized the damage he had caused, Oates was widely regarded as somewhere between a buffoon and simple trouble maker, and the punishment he received was viewed as excessive. Thus a few years later Parliament introduced and passed into law the English Bill of Rights containing provisions prohibiting Excessive Bail, Excessive Fines, and Cruel and Unusual Punishment. Oates was eventually released, and we can thank him for the fact that our eighth amendment contains the same provisions as the English Bill of Rights.

In regard to the Excessive Fines clause, SCOTUS gives lower courts wide latitude. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the Supremes feel there was abuse of discretion in assessing them. In Water-Pierce Oil Co. v. Texas (1909), we see that SCOTUS was loath to overturn the lower court decision, which was challenged under the discretionary standard, but in United States v. Hyppolite (1995), the court applied the standard by ruling that appellate courts can overturn a fine that is “arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law".

Trial court judges have less latitude under the Excessive Bail clause. The purpose of bail is to ensure the defendant will return for trial, and lower courts are required to consider several factors when setting bail;

1. seriousness of the offense;
2. weight of evidence (provability of the case);
3. ability of the accused to pay the bail;
4. defendant’s ties to the community in which the case will be prosecuted; and
5. liklihood the defendant will "jump bail," or flee from prosecution.

Lower courts are required to set bail at a reasonable amount because an unreasonable amount would be onerous, and the defendant is presumed innocent until proven otherwise. However, the courts understand that they are obligated to protect society from potential harm inflicted by dangerous defendants. SCOTUS has permitted lower courts to deny bail for defendants who could potentially create dangerous circumstances if released.

The Cruel and Unusual provision of 8A has provided more case law than the first two provisions, especially due to the more modern interpretation of the Due Process and Equal Protection clauses of the Fourteenth amendment currently in vogue with the courts.

8A requires that any punishment imposed by the government be commensurate with the offense committed by the defendant. A sentence that is disproportionately harsh will be overturned on appeal. Some examples of what SCOTUS considers disproportionate can be found in a pair of 1977 findings of the Burger court, Coker v. Georgia and Eberheart v. Georgia, in which the court held that the death penalty is disproportionate punishment for the crime of kidnapping and rape when the victim was not killed. Both cases were decided using Furman v. Georgia, a similar case from five years previous, as precedent. The rulings gutted the Georgia law.

SCOTUS has also ruled that sentences which are “inhuman, outrageous, or shocking to the social conscience” are considered to be cruel and unusual, and grounds for reversal. The Court has never really provided any meaningful definitions of those characteristics, but some cases speak for themselves. The Georgia Supreme Court, in Whitten v. Georgia (1872), offered that the intention of 8A was to prohibit such punishments as castration, quartering or burning at the stake. In a later case (re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]), the court wrote that the Cruel and Unusual clause prohibits “crucifixion, breaking on the wheel, disemboweling, [and] hanging in chains” because they “involve torture and lingering death." Electrocution as a means of execution was specifically allowed in Kemmler because, the court said, it did not seem to involve "more than the mere extinguishment of life."

It seems that Kemmler is brought up in many decisions involving death penalty cases, and case law is abundant, bit since I’m already over 900 words I’ll discuss that topic in Part IX.

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