The Eighth Amendment

The Text

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

What It Says

Bail cannot be set so high that it functions as detention. Fines cannot be disproportionate to the offense. Punishment cannot be cruel and unusual.

What It Protects Against

Punishment used as a tool rather than a penalty. Excessive bail jails a person who has not been convicted. Excessive fines turn the justice system into a revenue operation. The cruelty clause targets torture and mutilation as instruments of state power.

Sourced to a ratification-era document. See Contemporaneous Defense below.

Problem Addressed

English practice before the 1689 Bill of Rights included setting bail beyond reach to hold the unconvicted, and punishments such as mutilation and the pillory that the founders regarded as barbarous.

Contemporaneous Defense

The wording is taken almost verbatim from the English Bill of Rights of 1689. At the Virginia Ratifying Convention in June 1788, Patrick Henry warned that without such a prohibition Congress might introduce torture to extract confessions, and argued the clause was necessary rather than ornamental.