The 8th Amendment to the Constitution protects criminal defendants from what actions the government can take before and after trial.

To understand the motivation of James Madison and the other Framers, it is important that we look to English laws and precedents. The amendment itself reads:

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

In 1689, Parliament enacted its own Bill of Rights to prevent judges from arbitrarily inflicting unjust or cruel punishments. The antecedents of this were the Titus Oates case of 1685 in which Oates fabricated what became known as the “Popish Plot.” George Mason incorporated a bill of rights into the Virginia Constitution of 1776.

Determining what constitutes cruel and unusual punishment has been the subject of considerable discussion. Those discussions would differ depending on the century. English law demanded that someone who committed high treason be “drawn, hanged, and quartered.” That law was finally repealed in 1870 (though by then the punishment had not been used for 50 years).

In 1878, the Supreme Court ruled that being drawn and quartered was cruel and unusual punishment, along with dissection and disembowelment, in Wilkerson v. Utah. The Court has ruled several times that the death penalty for certain defendants, such as those younger than age 18 when the crime was committed, would be cruel and unusual.

The Court also weighed in on the proportionality of the sentence with a series of cases beginning in 1910 with Weems v. U.S. which banned hard labor and perpetual shackling. In Trop v. Dulles in 1958, the Court ruled that citizenship could not be taken away from a national born citizen because it would be cruel and unusual.

Through various decisions, the Court has ruled that the 8th Amendment applies to the states under the 14th Amendment’s due process clause.

The Supreme Court has had to decide whether the death penalty is cruel & unusual. It has ultimately taken the position that the death penalty is not cruel and unusual for murder, but for other crimes, such as rape, it is.

Most notably in Furman v. Georgia in 1972, the Supreme Court ruled that the way the penalty was applied was unconstitutional. After Georgia rewrote its death penalty statute, the Court determined that it did comply with the Amendment in Greg v. Georgia.

The prohibition on excessive fines and bail goes back to medieval England. Beginning in 1275, Parliament passed a statute outlining what was and was not a bailable offense. Though abuses continued, the English Bill of Rights put an end to the practice. In Stack v. Boyle in 1951, our Court declared that bail should be set based on the amount necessary to ensure the accused would appear at his trial.

In 1909 in Waters-Pierce Oil Co. v. Texas, the Court ruled that excessive fines are defined as prohibiting the government from levying fines “so grossly excessive as to amount to a deprivation of property without due process of law” through its police powers. In 1993 in Austin v. U.S., the Court ruled that civil forfeiture does not fall under the 8th Amendment.

Madison and the rest of the Framers were especially concerned with the unchecked power of the government. As we have seen under the first 8 amendments, the federal government, and later the states, were prevented from having unfettered power against individuals.