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sentially the rest of the present Eighth Amendment, was included within the Virginia Declaration of Rights, 12 was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state ratifying convention, 13 and was introduced verbatim by Madison in the House of Representatives. 14 Thus, in England the right to bail generally was conferred by the basic 1275 statute, as supplemented, the procedure for assuring access to the right was conferred by the Habeas Corpus Act of 1679, and protection against abridgement through the fixing of an excessive bail was conferred by the Bill of Rights of 1689. In the United States, the Constitution protected habeas corpus in Article 1, § 9, but did not confer a right to bail. The question is, therefore, whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1567 15 ‘‘No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, If he can put in sufficient securtie, bayle, or mainprise, for his appearance, and good behavior in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.’’ Reprinted in I DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 79, 82 (Z. Chafee ed., 1951). 16 ‘‘That all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.’’ 5 F. Thorpe, The Federal and State Constitutions, H. DOC. NO. 357, 59TH Congress, 2d Sess. 3061 (1909) (Pennsylvania, 1682). The 1776 Pennsylvania constitution contained the same clause in section 28, and in section 29 was a clause guaranteeing against excessive bail. Id. at 3089. 17 ‘‘All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted.’’ Art. II, 32 JOURNALS OF THE CONTINENTAL CONGRESS 334 (1787), reprinted in 1 Stat. 50 n. 18 ‘‘And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion herein....’’ 1 Stat. 91 § 33 (1789). 19 Congress first provided for pretrial detention without bail of certain persons and certain classes of persons in the District of Columbia. D.C. Code, §§ 23–1321 et seq., held constitutional in United States v. Edwards, 430 A.2d 1321 (D.C. App. 1981), cert. denied, 455 U.S. 1022 (1982). The law applies only to persons charged with violating statutes applicable exclusively in the District of Columbia, United States v. Thompson, 452 F.2d 1333 (D.C. Cir. 1971), cert. denied, 405 U.S. 998 (1978), while in other federal courts, the Bail Reform Act of 1966, as amended, applies. 80 Stat. 214, 18 U.S.C. §§ 3141–56. Amendments contained in the Bail Reform Act of 1984 added general preventive detention authority. See 18 U.S.C. § 3142(d) and (e). Those amendments authorized pretrial detention for persons charged with to bail, or whether the phrase ‘‘excessive bail’’ was meant to be a shorthand expression of both rights. Compounding the ambiguity is a distinctive trend in the United States which had its origin in a provision of the Massachusetts Body of Liberties of 1641, 15 guaranteeing bail to every accused person except those charged with a capital crime or contempt in open court. Copied in several state constitutions, 16 this guarantee was contained in the Northwest Ordinance in 1787, 17 along with a guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789, 18 enacted contemporaneously with the passage through Congress of the Bill of Rights. It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing right to bail could be abridged. Long unresolved was the issue of whether ‘‘preventive detention’’— the denial of bail to an accused, unconvicted defendant because it is feared or it is found probable that if released he will be a danger to the community—is constitutionally permissible. Not until 1984 did Congress authorize preventive detention in federal criminal proceedings. 19 VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1568 AMENDMENT 8—PUNISHMENT FOR CRIME certain serious crimes (e.g., crimes of violence, capital crimes, and crimes punishable by 10 or more years’ imprisonment) if the court or magistrate finds that no conditions will reasonably assure both the appearance of the person and the safety of others. Detention can also be ordered in other cases where there is a serious risk that the person will flee or that the person will attempt to obstruct justice. Preventive detention laws have also been adopted in some States. Parker v. Roth, 202 Neb. 850, 278 N.W. 2d 106, cert. denied, 444 U.S. 920 (1979). 20 Schall v. Martin, 467 U.S. 253 (1984). 21 481 U.S. 739 (1988). 22 481 U.S. at 753. 23 481 U.S. at 754. 24 481 U.S. at 755. The Court also ruled that there was no violation of due process, the governmental objective being legitimate and there being a number of procedural safeguards (detention applies only to serious crimes, the arrestee is entitled to a prompt hearing, the length of detention is limited, and detainees must be housed apart from criminals). 25 Stack v. Boyle, 342 U.S. 1, 4–6 (1951). 26 United States v. Salerno, 481 U.S. at 754. 27 Stack v. Boyle, 342 U.S. at 6-7. The Court first tested and upheld under the Due Process Clause of the Fourteenth Amendment a state statute providing for preventive detention of juveniles. 20 Then, in United States v. Salerno, 21 the Court upheld application of preventive detention provisions of the Bail Reform Act of 1984 against facial challenge under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court’s role in adjudicating guilt or innocence. ‘‘[W]e reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.’’ 22 Instead, ‘‘the only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.’’ 23 Detention pending trial of ‘‘arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel’’ satisfies this requirement. 24 Bail is ‘‘excessive’’ in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest. 25 If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then ‘‘bail must be set by a court at a sum designed to ensure that goal, and no more.’’ 26 To challenge bail as excessive, one must move for a reduction, and if that motion is denied appeal to the Court of Appeals, and if unsuccessful then to the Supreme Court Justice sitting for that circuit. 27 The Amendment is apparently inapplicable to postconviction release VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1569 28 Hudson v. Parker, 156 U.S. 277 (1895). 29 Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833). 30 Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921). 31 Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). 32 Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989). 33 492 U.S. at 265. 34 492 U.S. at 266. 35 492 U.S. at 268. 36 In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be pending appeal, but the practice has apparently been to grant such releases. 28 EXCESSIVE FINES For years the Supreme Court had little to say about excessive fines. In an early case, it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record. 29 Justice Brandeis once contended in dissent that the denial of secondclass mailing privileges to a newspaper on the basis of its past conduct, because it imposed additional mailing costs which grew day by day, amounted to an unlimited fine that was an ‘‘unusual’’ and ‘‘unprecedented’’ punishment proscribed by the Eighth Amendment. 30 The Court has elected to deal with the issue of fines levied upon indigents, resulting in imprisonment upon inability to pay, in terms of the equal protection clause, 31 thus obviating any necessity to develop the meaning of ‘‘excessive fines’’ in relation to ability to pay. The Court has held the Clause inapplicable to civil jury awards of punitive damages in cases between private parties, ‘‘when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.’’ 32 The Court based this conclusion on a review of the history and purposes of the Excessive Fines Clause. At the time the Eighth Amendment was adopted, the Court noted, ‘‘the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.’’ 33 The Eighth Amendment itself, as were antecedents of the Clause in the Virginia Declaration of Rights and in the English Bill of Rights of 1689, ‘‘clearly was adopted with the particular intent of placing limits on the powers of the new government.’’ 34 Therefore, while leaving open the issues of whether the Clause has any applicability to civil penalties or to qui tam actions, the Court determined that ‘‘the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.’’ 35 The Court has held, however, that the excessive fines clause can be applied in civil forfeiture cases. 36 VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1570 AMENDMENT 8—PUNISHMENT FOR CRIME seen as punishment. The Court was apparently willing to consider any number of factors in making this evaluation; civil forfeiture was found to be at least partially intended as punishment, and thus limited by the clause, based on its common law roots, its focus on culpability, and various indications in the legislative histories of its more recent incarnations. 37 United States v. Bajakajian, 524 U.S. 321, 334 (1998). 38 524 U.S. 321 (1998). 39 The Court held that a criminal forfeiture, which is imposed at the time of sentencing, should be considered a fine, because it serves as a punishment for the underlying crime. 524 U.S. at 328. The Court distinguished this from civil forfeiture, which, as an in rem proceeding against property, would generally not function as a punishment of the criminal defendant. 524 U.S. at 330-32. 40 524 U.S. at 334. 41 In Bajakajian, the lower court found that the currency in question was not derived from illegal activities, and that the defendant, who had grown up a member of the Armenian minority in Syria, had failed to report the currency out of distrust of the government. 524 U.S. at 325-26. The Court found it relevant that the defendant did not appear to be among the class of persons for whom the statute was designed, i.e. a money launderer or tax evader, and that the harm to the government from the defendant’s failure to report the currency was minimal. 524 U.S. at 338. In 1998, however, the Court injected vitality into the strictures of the clause. ‘‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.’’ 37 In United States v. Bajakajian, 38 the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of the country forfeit the currency involved, which totaled $357,144. The Court held that the forfeiture 39 in this particular case violated the Excessive Fines Cause because the amount forfeited was ‘‘grossly disproportionate to the gravity of defendant’s offense.’’ 40 In determining proportionality, the Court did not limit itself to a comparison of the fine amount to the proven offense, but it also considered the particular facts of the case, the character of the defendant, and the harm caused by the offense. 41 CRUEL AND UNUSUAL PUNISHMENTS During congressional consideration of this provision one Member objected to ‘‘the import of [the words] being too indefinite’’ and another Member said: ‘‘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 would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00006 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1571 42 1 ANNALS OF CONGRESS 754 (1789). 43 E.g., 2 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 111 (2d ed. 1836); 3 id. at 447–52. 44 See Granucci, ‘Nor Cruel and Unusual Punishments Inflicted’ : The Original Meaning, 57 CALIF. L. REV. 839 (1969). Disproportionality, in any event, was utilized by the Court in Weems v. United States, 217 U.S. 349 (1910). It is not clear what, if anything, the word ‘‘unusual’’ adds to the concept of ‘‘cruelty’’ (but see Furman v. Georgia, 408 U.S. 238, 276 n.20 (1972) (Justice Brennan concurring)), although it may have figured in Weems, 217 U.S. at 377, and in Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958) (plurality opinion), and it did figure in Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991) (‘‘severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history’’). 45 Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368–72 (1910). On the present Court, Chief Justice Rehnquist subscribes to this view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966–90 (1991) (Justice Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Justice Thomas dissenting) (objecting to Court’s extension of the Amendment ‘‘beyond all bounds of history and precedent’’ in holding that ‘‘significant injury’’ need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment). 46 217 U.S. 349 (1910). 47 217 U.S. at 376–77. kind.’’ 42 It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants, 43 but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments. 44 Though few in number, the decisions of the Supreme Court interpreting this guarantee have applied it in both senses. Style of Interpretation At first, the Court was inclined to an historical style of interpretation, determining whether or not a punishment was ‘‘cruel and unusual’’ by looking to see if it or a sufficiently similar variant was considered ‘‘cruel and unusual’’ in 1789. 45 But in Weems v. United States 46 it was concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of ‘‘a coercive cruelty being exercised through other forms of punishment.’’ The Amendment therefore was of an ‘‘expansive and vital character’’ 47 and, in the words of a later Court, ‘‘must draw its meaning from the evolving standards of decency that mark the VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1572 AMENDMENT 8—PUNISHMENT FOR CRIME 48 Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion). This oft-quoted passage was recently repeated, the Court adding that cruel and unusual punishment ‘‘is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted, but rather by those that currently prevail.’’ Atkins v. Virginia, 122 S. Ct. 2242, 2247 (2002). 49 See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978). 50 Wilkerson v. Utah, 99 U.S. 130, 135 (1878). 51 Hanging was the other method of execution commonly used at the time, and implicitly approved by the Court. 52 In re Kemmler, 136 U.S. 436 (1890). 53 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Justice Frankfurter tested the issue by due process standards. Id. at 470 (concurring). Years earlier the Court, although recognizing that the Eight Amendment was then inapplicable to the states, opined in dictum that a fine and brief imprisonment for illegal sale of alcohol was not cruel and unusual punishment. Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 479–80 (1867). 54 356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124–27. progress of a maturing society.’’ 48 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases. 49 Application and Scope ‘‘Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.’’ 50 In upholding capital punishment inflicted by a firing squad, the Court not only looked to traditional practices but examined the history of executions in the territory concerned, the military practice, and current writings on the death penalty. 51 Relying on the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment, the Court next approved electrocution as a permissible method of administering punishment. 52 Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States, held that a second electrocution following a mechanical failure at the first which injured but did not kill the condemned man did not violate the proscription. 53 Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles. 54 The Court viewed divestiture as a penalty more cruel and ‘‘more primitive VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 AMENDMENT 8—PUNISHMENT FOR CRIME 1573 55 356 U.S. at 99–100. The action of prison guards in handcuffing a prisoner to a hitching post for long periods of time violated basic human dignity and constituted ‘‘gratuitous infliction of ‘wanton and unnecessary pain’’’ prohibited by the Clause. Hope v. Pelzer, 122 S. Ct. 2508, 2515 (2002). 56 408 U.S. 238 (1972). 57 See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355 (1995). than torture,’’ inasmuch as it entailed statelessness or ‘‘the total destruction of the individual’s status in organized society.’’ ‘‘The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.’’ A punishment must be examined ‘‘in light of the basic prohibition against inhuman treatment,’’ and the Amendment was intended to preserve the ‘‘basic concept . . . [of] the dignity of man’’ by assuring that the power to impose punishment is ‘‘exercised within the limits of civilized standards.’’ 55 Capital Punishment The Court’s 1972 decision in Furman v. Georgia, 56 finding constitutional deficiencies in the manner in which the death penalty was arrived at but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run the ruling may have had only minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in extensive review of capital sentences. 57 Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 followup cases that reviewed state laws revised in light of Furman reaffirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review. Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class. While the Court continues to tinker with application of these principles, it also has taken steps to attempt to reduce the many procedural and substantive opportunities for delay and defeat of VerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1574 AMENDMENT 8—PUNISHMENT FOR CRIME 58 See, e.g., Gardner v. Florida, 430 U.S. 349, 357–58 (1977): ‘‘From the point of view of the defendant, [death] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance . . . that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’’ 59 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983): ‘‘unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding. Accordingly, federal courts must isolate the exceptional cases where constitutional error requires retrial or resentencing as certainly and swiftly as orderly procedures will permit.’’ See also Gomez v. United States District Court, 503 U.S. 653 (1992) (vacating orders staying an execution, and refusing to consider, because of ‘‘abusive delay,’’ a claim that ‘‘could have been brought more than a decade ago’’—that California’s method of execution (cyanide gas) constitutes cruel and unusual punishment). 60 In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position that ‘‘the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus,’’ and also declared that, because of ‘‘the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, . . . the threshold showing for such an assumed right would necessarily be extraordinarily high.’’ Id. at 417. 61 See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. 62 Gone too is Justice Blackmun, whose early support for capital punishment gave way near the end of his career to a belief that the Court’s effort to reconcile the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed, and that the death penalty ‘‘as currently administered, is unconstitutional.’’ Callins v. Collins, 510 U.S. 1141, 1159 (1994) (dissenting from denial of cert.) the

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