"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Excessive bail...well, that is all determined by the judge. It's usually based on the crime that the defendant is accused of, the defendant's personal financial means, and of course probably the most potent, the arguments presented by the prosecuting attorney and the defense attorney. It's an accepted fact that public defense attorneys aren't worth the money that the defendant pays for them. So what seems like a very simple process is never a simple process. If you've watched any crime television show, well, then you're probably already aware it could even come down to the disposition of the judge. It's all really the judge's call. Will they get second guessed during an appeal? Maybe. Maybe not. The most recent case to be accepted by the Supreme Court was in 1986 by a member of a drug cartel who's attorneys argued that denying bail was "excessive". The Supreme Court said denying bail was not excessive in light of public interest. Since then, unless someone just committed some petty crime and bail is set in the 5 or 6 figure range, I'd say the possibility of an appeal resulting in lowered bail is slim to none. In light of the Patriot Act, where bail doesn't even have to be offered, well, forget it. I think this clause is never going to get into the realm of debatable...unless the Patriot Act courts have to start treating their defendants like the regular courts system. Of course, this isn't about the Patriot Act, so moving on.
What are fines? Well, they can be levied for criminal acts and civil acts. What are excessive fines? Well, first fines can be forfeiture of goods, belongings, cash, bank accounts, basically anything of value. There can be fines levied for criminal acts. Any property obtained through a criminal enterprise or with proceeds from a criminal act can be seized under this amendment. Pretty much any criminally acquired stuff can be taken from you. It's right along the lines of crime doesn't pay--well, isn't supposed to anyway.Seems like common sense but it seems a lot inequitable where some criminals with better lawyers and book cooking might be able to hold onto a lot more than some street thug. If you wonder why criminal lawyers make so much money, well, that's probably a chunk of it. There can also be forfeiture of goods, money, etc. for civil cases. Civil cases are determined based on what the civil case is. An interesting conundrum I heard once was about alimony being an excessive fine. It sounded kind of ridiculous since most alimony ordered now has a time limit, usually around 3 years. But, it apparently was an interesting argument when alimony was a life sentence. Of course, we don't usually think of divorce as something we are getting "fined" for. Most civil cases we are familiar with are the ones where a company owes someone money for exposing them to something that would adversely affect their health or where someone who committed a crime is sued by the victim or victim's family--that whole OJ Simpson case in example.
So there's not a lot of controversy in the first half of the sentence. There's a bunch though for that last tidbit. "nor cruel and unusual punishments inflicted."
There is so much debate about what is or isn't cruel or unusual it's almost a blog on its own. There's the death penalty, multiple life sentences, concurrent versus consecutive sentences, chain gangs, location and facilities of imprisonment, solitary confinement, and even assigned roommates.
Death Penalty. Is it cruel or unusual? The Supreme Court has consistently said it's not. So it is unlikely it's going away any time soon. At one point a Supreme Court Justice concluded that using the death penalty on a poor uneducated defendant without proper representation versus an affluent, educated defendant with an ability to afford an excellent defense would be considered cruel and unusual punishment. Of course, as we all know, an educated affluent defendant can afford a dream team of lawyers to get them off. The death penalty has to be one of the most debated issues of our time. We used to string people up from a tree without an iota of due process. The issue is so debatable that there are several non-profit organizations on both side of the fence. For people who have lost their loved ones to a heinous crime that is eligible for the death penalty, it might give the closure that might not be afforded any other way. On the other hand, there have been instances where innocent death row inmates were put to death before it could be proven they were innocent. How do we compensate for the sanctioned death of an innocent man? Our courts system was founded on the concept innocent until proven guilty, but almost all of us know that the media dictates information to us and tries to determine for us what to think a good portion of the time. It is completely possible that if someone had power of local media that they could get away with murder just by edging the public opinion in the wrong direction. Of course, that is only another example of a guilty party getting off scott free. Innocent and proven guilty, how do we view that? The Founding Fathers were actually kind of clear on this. Many of them quoted William Blackstone who said, "It is better that ten guilty go free than one innocent suffer."
The debate has grown into ways that the Founding Fathers could not have conceived of. In a very controversial Supreme decision, Louisiana lost its argument that a pedophile who raped a child under the age of 12 could be sentenced to death. In the 2008 decision, the Supreme Court held that "the death penalty should not be expanded to instances where the victim’s life was not taken." Louisiana argued that the rape exceeded the "evolving standards of decency". While sometimes the emotional arguments do sway the Justices, generally speaking, emotional arguments are the least successful. One of the counter-arguments made was that enforcing the death penalty in such cases would deter future reporting of sexual abuse. Another was there would potentially be an increase in sexual assaulted minors being murdered since the punishment would be the same and the chances of being caught then would be reduced. This seems preposterous to me since forensic science would be able to determine that the minor had been sexually assaulted, except that proof of who the perpetrator is might be difficult to prove or ascertain. It is difficult for the average human being to conceive of the raping of a child, so there was no way for anyone to foresee such a debate ever rising to the Supreme Court.
Life Sentences. Life sentences are typically handed out for severe crimes. However, life sentences have been handed out for criminal enterprises, under three strike laws, and even in serial type crimes. It has been argued that life sentences for juvenile offenders are excessive and therefore cruel and unusual. The Supreme Court has said that if a juvenile offender is given a life sentence they must be given the possibility of parole. In 2003, California's "Three Strikes Law" was given the thumbs up from the Supreme Court. Of course, only in the effect that it is 25 years to life. Most think of the "Three Strikes Laws" as life sentences. They are not. They are generally a stipulated minimum amount of years that take the majority of someone's life from them. Twenty five years certainly fits that bill for most perpetrators.
Multiple Life Sentences. Seriously. It's not because it's been determined that a convicted felon can actually only serve a single life sentence unless we prove reincarnation is real or we somehow find a way to keep someone alive for 200 years. Not likely any time soon, so serving multiple life sentences is basically one life sentence. It just makes the victims or their families have some amount of faith that the crime will be punished even if a previous crime is vacated.
Chain Gangs. For those of us that work, chain gangs seem fair. The convicted should have to pay society back and this is certainly one way of them doing so. However, we're all familiar with stories and books depicting chain gangs of the past as brutal and sometimes deadly. It's probably hard for us to picture anything so heinous now. After all we are in the new millennium, right? Yet, in 2002, the Supreme Court ruled that leaving a man shackled to a hitching post for 7 hours in the hot sun without a shirt and without being allowed to go to the bathroom was cruel and unusual punishment. There are limits to how someone can be treated.
Cruel and Unusual, in general...Well, this is amazing how many arguments get made about "cruel and unusual" and we're only going to touch the tip of the iceberg because it is so extensive. The courts have consistently held that there are no first time offender limits. A life sentence for a first time offense is not "cruel and unusual" even if a defense attorney can whip out a million examples of lesser sentences for the same crime. Should make most think twice about committing any crime. Felons, people already convicted of crimes previously, are not allowed to own firearms or possess any type of ammunition. A fifteen year sentence that was dished out to a convicted felon for having ammunition was contested since no weapon was located. The courts upheld the sentence. Trying a minor, ie. 17 and convicting them as an adult has been upheld multiple times. In a recent case moving through the appeals process since 2012, a 17 year old girl charged with the murder of her mother was sentenced to life without parole (remember the Supreme Court held that life without parole was cruel and unusual for a minor). So far the courts have upheld that this 17 year old was tried as an adult and can be sentenced as an adult. I suspect the case may make its way all the way to the Supreme Court. The only way the average American will hear about it is if the court says that this 17 year old (now like 20) could not have been tried as an adult. I'm guessing that's not going to happen. The Supreme Court has refused to hear similar cases unless this team of lawyers has something unique to this case.
Anyway, when we talk about the stuff we associate with the Amendments, it's obvious that sometimes it's not always stuff that we would picture that falls under each of these Amendments. Cruel and unusual? This can run a gambit of things and as time passes and we change, because society is ever in motion and changing, what we deem appropriate today might not be so appropriate tomorrow. Only 100 years ago, we placed men into small dark holes with no light sometimes for months at a time, never taking them out and the only light they saw was when a guard opened a small gap to slide a plate of food in. Eventually this was considered "cruel and unusual" and was deemed against the Constitution.
The one main take away with this series of blogs: One simple sentence can be interpreted in many different ways by whomever has been reading it.
