"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."
Excessive Bail Clause
Bail is an amount of money that must be given to a court by a person accused of a crime
in order for them to be able to leave the jail before the trial. If the person doesn't show up
for his trial, then he forfeits the money he gave as bail. If the person shows up on their
trial date, the bail money is returned to them. Sometimes the bail required by a court can
be very high and the accused person may not have enough to pay it. In this case, a bail
bondsman can loan the money to the accused person for a fee. If the person doesn't
show up for the trial, the bondsman loses his money as well, so it is in the bondsman's
interest that the accused show up for trial. When people do not show up for trial,
bondsmen often employ bounty hunters to find the person and return them to the jail so
they can get their money back. There are several popular television shows such as "Dog,
the Bounty Hunter," that show how bounty hunters do their work.
The Excessive Bail Clause of the 8th Amendment prohibits courts from requiring
unreasonably large amounts for bail. If the amounts are too large and people cannot pay
them, they would have to stay in jail until their trial date. This would prevent an accused
person from preparing their defense adequately, since it would be hard to prepare a
defense from jail. In addition, allowing an accused person out on bail allows them to
continue working to provide for their family and do other normal activities and also
reduces expenses for the local jail since they will not have to house and feed the
It is also not fair to leave a person in jail for a long period of time who has merely been
accused of a crime because, in the American legal system, people are presumed to be
innocent until they are proven guilty. At this stage, they have merely been accused of
wrong doing and nothing has yet been proven.
At the same time, courts must set the bail to a sufficiently high amount so that the
accused person will have an incentive to show up for their trial because if they do not
show up, they will lose their money. If the bail is too small, the person may flee or just not
Courts must also protect the community. So in some cases, they will not allow someone to
pay bail and get out of jail. This happens if the alleged crime is particularly heinous or if
releasing the person would cause some unusually dangerous threat to the community.
Excessive Fines Clause
The Excessive Fines Clause prevents judges from levying excessive fines, but what
amount is excessive? In actuality, fines are rarely overturned by higher courts unless the
judge abused his discretion when imposing the fine. Using this standard, a higher court
may reverse a lower court's arbitrary, exorbitant fines if they are "so grossly excessive as
to amount to a deprivation of property without due process of law," Water-Pierce Oil Co. v.
Texas . Fines are rarely reversed due to any of these 8th Amendment conditions.
Cruel and Unusual Punishments Clause Appeals courts usually defer to the lower courts
in cases regarding challenges based on violations of the Excessive Bail Clause or
Excessive Fines Clause. Courts give much more scrutiny, however, to cases alleging
violations of the Cruel and Unusual Punishments Clause.
The 8th Amendment requires that punishments for crimes be in proportion to the crime
committed. Punishments that are far greater than the crime should demand can be
overturned by a higher court. For example, the courts have ruled that the death penalty
is out of proportion to any other crime than one where a murder is committed, except for
crimes against the government such as treason and spying.
The courts have also ruled that if a sentence is inhuman, outrageous, or shocking to the
social conscience, it is a cruel and unusual punishment under the 8th Amendment. Such
things as burning at the stake, castration, crucifixion, breaking on the wheel, cutting off
body parts and so on, fall into this category. In particular, cases involving the death
penalty have received a lot of scrutiny in regards to the 8th Amendment. There are some
people who believe all death penalties constitute a cruel and unusual punishment.
Others disagree, believing that death is an appropriate punishment in some cases.
The courts have generally decided that death is an appropriate punishment for murder,
but not for other crimes. Even so, the death penalty is "cruel and unusual" if there are
mitigating factors that would prohibit death as a punishment, such as if the convicted
person was mentally incompetent at the time the crime was committed.