United States Constitution

Thus, according the 8th Amendment, bail may not be overly excessive. For example, in Stack v. Boyle (1951), a number of individuals were arrested, accused of being Communist collaborators. The court set bail for each defendant at $50,000, and the defendants petitioned the court to reduce the bail – producing evidence that they could not afford such a large sum. Eventually, the case went before the Supreme Court, which held that – considering the alleged crime and the defendants’ resources – the bail was unconstitutionally excessive.

Still, bail does not have to be offered in every single instance. For example, in United States v. Salerno (1987), the Supreme Court agreed that if a defendant could be shown to be dangerous to the community at large, he did not have to be offered the opportunity to be released from jail before a trial.

As a footnote, it is also worth mentioning that, like most of the amendments in the Bill of Rights, the 8th Amendment does apply to the states (both the cruel and unusual punishment clause as well as the excessive bail clause), even though these amendments were originally only constraints against the federal government. Today, these amendments have been incorporated into the 14th Amendment, which does apply to the states. The 8th Amendment, too, applies to the states through the 14th.

Within a few years, however, states did make changes. The death penalty again wound its way back to the Supreme Court in Gregg v. Georgia (1976)/ In Gregg, the state of Georgia had changed its death penalty statute from requiring that the jury decide guilt and innocence at the same time as the sentence to requiring a so-called bifurcated trial. In the first stage, a jury decides whether or not the defendant is guilty. In the second stage, the jury decides the sentence. The Court found this measure sufficient to remedy the 8th Amendment concerns. The death penalty could be constitutional if practiced correctly and not arbitrarily. This case served to lift what had become, essentially, a moratorium on the death penalty throughout the country.

Still, the scope of the death penalty has continued to contract. As is explained below, it is no longer permitted for defendants under the age of 18. In Atkins v. Virginia (2002), the Court held that it is also not permitted for defendants with mental disabilities. In Coker v. Georgia (1977), the Court held that the death penalty could not be given for the rape of a woman. In Kennedy v. Louisiana (2008), the Court went a step further and decided that it could not even be given for the rape of a child. Instead, today, the death penalty is only allowed in cases where either the crime resulted in the death of a victim, or the crime is “against the state” (treason and espionage, for example).

However, this standard has not held up. Recently, the Court again addressed the death penalty for juveniles in Roper v. Simmons (2005). There, the Court rejected its earlier decisions in Thompson and Stanford, and held that the 8th Amendment prohibited all death penalties for under the 18 of 18.

Moreover, the Court went a step further in Graham v. Florida (2010), when it held that even the punishment of life without parole for those under 18 constituted cruel and unusual punishment as well.

For example, in the early case of Weems v. United States (1910), a man was sentenced to 15 years in prison in the Philippines. At the time, the Philippines was an American colony, having been won by the United States in the Spanish-American War of the late 19th century. This prisoner was sentenced as a result of his fraudulently falsifying documents, obviously a crime. The Court, however, held the sentence to be cruel and unusual. Not only was 15 years in prison considered excessive for the crime in question, but the sentence came with an added ‘hard labor’ requirement. On balance, then, this sentence was held to be wildly disproportionate, and thus unconstitutional.