The Ester Republic
the national rag of the independent people's republic of ester

civil rights & history, volume 9 number 5, May 2007

Hannah Hill

Bail, Fines, and Punishment: Just Enough, But Not Too Much

And he that smiteth any man mortally shall surely be put to death…And if a man maim his neighbor; as he hath done, so shall it be upon him: breach for breach, eye for eye, tooth for tooth; as he hath maimed a man, so shall it be rendered unto him.
—Leviticus, 24; 17-20

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

The Eighth Amendment was modeled very closely after the 10th Article in the 1689 English Bill of Rights. The three conditions within our amendment defend the general public before and after democratic trial: the Excessive Bail Clause prevents arbitrary or personal judgments in bail setting for accused persons’ release before trial; the Excessive Fine Clause regulates monetary restitution for any given crime; and the Cruel and Unusual Punishments Clause protects criminals from brutal or disproportionately severe sentencing after conviction.

As with the other nine Amendments in the American Bill of Rights, the vagaries of the Eighth Amendment have long divided the adjudicative scale. Those in favor of the innocent-until-proven-guilty philosophy hold that personal freedom before trial allows for a better legal defense in the court and that there lays the freedom and very point behind the Democratic legal system. Those arguing the counterpoint believe that since the clause was drafted from the English Bill of Rights Act (which, although adopted in 1689, drew heavily from the 1275 Statute of Westminster which inventoried all bailable crimes and allowed only for protection from excessive bail in the cases in which bail was granted), and because the Eighth Amendment does not implicitly say that it meant differently, that we should not allow for bail to fall “below the level of pious admonition” (Justice Black, 1952).

In America, the framework for the fixed system bail rests on five concerns: the indicted person’s financial ability to post bail; the community ties, such as family or position, the indicted person has; the “flight risk” or probability the indicted person will run; the gravity of the accused crime; and the amount of evidence presented in the odds of guilt. Because of our American right to life, liberty, and the pursuit of happiness (until proven guilty), bail is set high enough to ensure the defendant’s return for trial but within reasonable limits to allow for life to go on until that point. However, lower courts have been granted the privilege to deny bail to defendants they deem to be in danger, a danger to the community, or an extreme flight risk.

When the Eighth Amendment was adopted, the appellate court used the word ‘fine’ in the definition used then, of “the payment to a sovereign as punishment for some offence,” and was meant only to limit the compulsory fines by and payable to the government. The clause does not apply when a civil jury awards reprisal restitution between private parties, such as in the civil cases during the late 1990s in which the cigarette giants were fined hundreds of millions in compensation to (ex) smokers and their families. What is excessive in one case is a drop in the bucket in another. The courts have also ruled that a convicted person unable to pay the prescribed compensation to should serve jail time. This negates the need to further define “excessive fines” from person to person, as it falls within the parameters of the equal protection clause.

The most well-known clause in the Eight Amendment is the Cruel and Unusual Punishments Clause. In 1972 Justice Thurgood Marshall in Furman vs. Georgia said, “Whether the English Bill of Rights’ prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or both, there is no doubt whatever that in borrowing the language and including it in the Eight Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments.”

What are times long past for us were still fresh in the minds of our founding fathers, and they drafted this amendment for personal protection from tyrannical or sadistic government punishments. At the time, the concept of proportional punishment was a radical one. Through the history of execution and torture we have seen the death-for-all-crime Draconian Code of 621 BC to 1531 when in the Middle Ages the Crown legalized death by boiling. When North America was first colonized, there were so few able-bodied people that the death sentence was used less and less infrequently. In some Puritan communities, capital punishment was banned entirely. Even so, during the American Revolution death by hanging was routinely used for those convicted of the crimes of murder, theft, sodomy, piracy, slave rebellion, treason, or arson.

Today, the most debate on this clause springs from the argument that the death penalty is in violation of the Eighth Amendment. As torture has never been part of government-sanctioned punishment (for Americans charged and held in the United States) there is very little case litigation on that front. There is, however, an enormous push to end the death penalty in America on the grounds that all life is sacred, that execution of innocent people is inexcusable, and that it only serves as revenge and not punishment.

The Eighth Amendment is a powerful protective tool for the American people. Through its generosity we retain our hands after petty theft, no longer are strapped into public “shaming posts” for minor infractions, and we have the right to hope for potential rehabilitation for convicted criminals. We are granted the knowledge that there is a (supposedly and hopefully solid) system behind the Court’s sentencing, and the continued evolution of American thought is allowed for in our ideas of appropriate judgments.

“The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it is necessary… No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent of the Legislature to adopt it; but until we have some security that this will be done, we ought not be restrained from making necessary laws by any declaration of this kind.”
—Samuel Livermore, New Hampshire Representative
to the First Congress under the US Constitution, 1789


Republic welcome
Kate Billington
Hannah Hill