The Eighth Amendment, enacted in 1791 as part of the Bill of Rights, provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S. Const., Amend. VIII). The three tenets of the Eighth Amendment aim to protect the property and liberty rights of those accused of crimes under the “presumption of innocence” principle, coupled with the notion that consequences imposed on conviction should bear some relationship to the gravity of the offense and neither be uncivilized nor imposed arbitrarily. This entry briefly reviews the general contours of the Eighth Amendment as well as the principles and parameters that regulate government actions in these regards. While the Eighth Amendment is an important source of constitutional principles with respect to criminal suspects and those convicted of a crime, it has limited, if any, potential applicability in the traditional public school context.
The Excessive Bail Clause of the Eighth Amendment can be traced to the traditional English law principle prohibiting the incarceration of an accused party prior to the establishment of guilt. Much debate has ensued in America regarding the interpretation of the precise meaning of “excessive bail” and whether it guaranteed all criminals the opportunity for bail or simply limited the amount of bail for individuals whose release before trial did not contravene some important governmental interest. The governmental interest that must be satisfied, at least historically, has been to ensure that a defendant appears for trial. If the amount of bail exceeds what is necessary to ensure that end, it could be deemed excessive.
In more recent times, Congress enacted the Bail Reform Act (1984), which denies bail altogether for those accused of certain serious federal crimes if a court concludes that the accused is a flight risk or a threat to the safety of others. In United States v. Salerno (1988), such “preventative detention” of a defendant awaiting trial was found to be constitutional. Reflecting the continuing historic tension regarding the meaning of the “excessive bail” provision, the Bail Reform Act, which introduced preventive detention, also sought to ensure that bail amounts would be proportional to the offense committed by the defendant.
The second clause of the Eighth Amendment has been interpreted to bar “excessive fines” that are imposed by and payable to the government. This clause went largely undefined until relatively recently, when the Supreme Court decided Austin v. United States (1993). While the provision was initially associated with fines in criminal proceedings, the Court declared in Austin that the bar against excessive fines also applies in civil actions brought by the government seeking forfeiture of property, since the forfeiture constitutes a form of punishment. In Austin and a subsequent case, United States v. Bajakajian (1998), the Court also imposed a proportionality principle, requiring a measured relationship between the punitive forfeiture and the gravity of the offense, including its harmful effects, to ensure that the punishment is not excessive.
Cruel and Unusual Punishment
The Cruel and Unusual Punishment Clause is the most dynamic and debated tenet of the Eighth Amendment. At the center of the Court’s interpretation of this standard is the fact that overlying moral views of the country are constantly changing. This presents a significant problem when attempting to define what constitutes “cruel” or “unusual” punishment, since according to the Court’s language in Trop v. Dulles (1958), “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (p. 101).
This has been most problematic in relation to capital punishment. In 1972, the Court in Furman v. Georgia found that the death penalty was not unconstitutional per se, although in that and a series of subsequent cases, the Court has found constitutional defects in how the decision to put someone to death is prescribed in state statutes. As Justice Douglas noted in his concurring opinion in Furman,
The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. (p. 526)
In scrutinizing the work of legislatures after Furman, the Supreme Court ruled unconstitutional those state capital punishment statutes that fail to (a) narrowly define the offenses for which the death penalty may be invoked; (b) identify expressly aggravating circumstances that the jury may consider in imposing the death penalty; or (c) permit individual defendants to determine and present evidence as to what they believe constitutes mitigating circumstances, as well as ones that fail to exempt the mentally retarded or juveniles for crimes committed before the age of 18.
Lesser forms of punishment have, of course, also been argued to be cruel and unusual. One case of particular interest to those in the field of education is the administration of corporal punishment in public elementary and secondary schools. In Ingraham v. Wright (1977), two junior high students challenged their receipt of some 20 swats with a wooden paddle. The Supreme Court, citing the historical purpose of the Eighth Amendment, concluded that it was intended to protect prisoners from physical abuse, not school children from corporal punishment. In finding the Eighth Amendment inapplicable, the Court reasoned that schools, unlike prisons, are open institutions and subject to greater public scrutiny and that children, unlike prisoners, are free to return home every evening, thereby further reducing the possibility that children will be exposed to arbitrary or abusive punishment at the hands of state officials without outside intervention. Further, in Ingraham, the Court observed that corporal punishment was both authorized and limited by state law, affording a remedy if it was administered in an excessive manner or with unreasonable force.
However, even though the Eighth Amendment is not applicable to the schools and consequently does not bar the use of corporal punishment by school officials, the principle of proportionality, discussed in conjunction with the Eighth Amendment, may be enforced in school settings via the substantive “due process” provision of the Fourteenth Amendment, at least where the school punishment is so grossly excessive as to be “shocking to the community’s conscience.”
Based on prior Supreme Court interpretations, then, it appears that the Eighth Amendment protections are intended for those who have been accused of criminal activity or convicted and incarcerated. Its applicability to traditional public schools and public school students, in their capacity as public school students, therefore appears to be exceedingly limited, at least in any direct sense.
Charles B. Vergon and David Mullane
- U.S. Senate. (2002). Analysis and interpretation of the Constitution. Annotations of cases decided by the Supreme Court of the United States (Senate Document No. 108–17, 2002). Retrieved March 30, 2007, from http://www.gpoaccess.gov/constitution/browse2002.html
- Atkins v. Virginia, 536 U.S. 304 (2002).
- Austin v. United States, 509 U.S. 602 (1993).
- Bail Reform Act of 1984, 18 U.S.C. §§ 3142 et seq.
- Furman v. Georgia, 408 U.S. 238 (1972).
- Ingraham v. Wright, 430 U.S. 651 (1977).
- Roper v. Simmons, 543 U.S. 551 (2005).
- Trop v. Dulles, 356 U.S. 86 (1958).
- United States v. Bajakajian, 524 U.S. 321 (1998).
- United States v. Salerno, 481 U.S. 739 (1988).