The Eighth Amendment

| August 14, 2019

8th amendment

Veritas Omnia Vincit is off vacationing somewhere wet, but he was kind enough to pen his opinions on the Eighth Amendment to the Constitution. He’s planning for the Ninth and Tenth soon, and then he’ll get to the one we’ve all been waiting for.

Veritas Omnia Vincit

The Eighth Amendment,
or Is This Really Excessive, Cruel and Unusual?

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

A single sentence with a couple of commas, but there is a lot going on here with respect to this amendment and it’s history and current application to the law. Historically speaking the phrase “cruel and unusual” appears in an English Bill of Rights that prohibits “Cruell and Unusuall” punishments and George Mason in 1776 included that same phrase in the Declaration of Rights he drafted for the Commonwealth of Virginia. Clearly this concept was well known to the Colonists prior to the 1791 Constitutional process.

The provision against cruel and unusual was an important part of the Colonial debate, Patrick Henry even asserted that Congress would be able to use punishment as a tool of oppression against the people of the nation. He stated that “Congress might, like the terrible monarchies of France, Spain and Germany introduce torturing to extort a confession of a crime.” He added that “those in Congress will tell you that there is such a necessity of strengthening the arm of government that they must extort a confession by torture in order to punish with still more relentless severity. At which time we will be lost and undone as a nation.” Abraham Holmes feared that Congress could repeat the abuses of the Inquisition and impose torture for Federal crimes. Once again James Madison to the rescue with the eighth amendment and its re-use of the phrase cruel and unusual. With the Incorporation Clause SCOTUS has seen fit to limit state power in this area as well.

Interestingly enough the debates around this today center on concepts such as what measure of “cruel and unusual” should we utilize in determining when that line is crossed? The standards of 1791? Or a more modern outlook linked to our current sensibilities? The founders were clearly appalled by the state application of torture methods as a means to get people to talk or confess to any crimes. As with all things for me regarding the Constitution I would always lean towards whatever restricts the government more, even if that means some shitbags skate by without confessing and are subsequently released. It’s far too easy for government to justify torture once it starts down that path. We’ve already seen numerous calls by Congress that in order to keep us safe they’d like to restrict your rights in some fashion or another even for those of us who have never committed any crimes in order to “protect” us. It’s interesting how that “protection” always seem to involve more government interference in your daily lives and never seems to involve limiting the power of the government.

There are a couple of interesting cases around the Cruel and Unusual provision that might give you some idea of what the government to include SCOTUS finds acceptable. Andrade v Lockyer and Whitley v Albers, in the first case Andrade a petty thief in California was convicted of two small petty thieveries. The sum total of less than $150 was involved but these felony petty thefts. Under the California three strike rule this opened up Andrade to two separate third strikes as two previous felony convictions were already on his record. He was sentenced to two consecutive 25-to-life terms in state penitentiary in California. SCOTUS found nothing wrong with him serving out his days in prison for stealing what amounts to a weeks worth of groceries for a couple today. SCOTUS used previous case law to determine that Mr. Andrade serving the rest of his life behind bars for being a terminal shitbag was not in fact cruel and unusual even if the small amounts of the third and fourth felonies were less than the lunch bill for the nine members of the court. I’m not suggesting Mr. Andrade was a choir boy, I use this case to point out that the government and it’s enforcement arms in the forms of the courts and legislatures can set a low bar for life in prison that will meet the SCOTUS test. A lesson we should all learn and remember. The latter case of Whitley v Albers is an easier case to understand. It involves a prison riot where a guard was held hostage. A plan to free the guard was developed that involved an unarmed prison supervisor racing up some stairs to free the guard while other guards armed with shotguns were to keep those stairs clear of inmate. The guards were told to keep all shotgun fire low to avoid lethal force where possible. Mr. Albers was shot in the knee when trying to climb the stairs. A warning shot had been fired first before Mr. Albers was shot in the knee/leg by the guards in support. SCOTUS ruled that this was a reasonable use of force and that it was not cruel and unusual as it was a component of trying to restore order and to save the life of a guard that the other guards believed to be in real physical danger, regardless of whether or not that guard was actually in danger. These two cases make a good read and offer some perspective as other cases are mentioned for reference by SCOTUS as well.

The excessive bail component of this amendment is widely debated across the nation to this day and to be honest I find it fascinating that our right to a speedy trial isn’t being suppressed by a prosecutor taking years to actually bring us to court all the while someone is held with bail beyond their reach for small crimes. While some law and order statists don’t mind that we keep petty criminals locked up for months for a crime that either carries no jail time or less than 30 days it’s an expensive method for the taxpayers and a waste of resources. California recently removed cash bail as a component of pre-trial release. It will be most interesting to see if this becomes a cost savings measure and is an effective option, or if they have a huge spike in no shows. The data they collect could help other state entities determine the effectiveness of similar programs in their areas.

The excessive fines clause is once again proof of the founders commitment to protecting your property from government over reach. They had seen the result of English law that allowed someone to lose everything for a minor offense or worse a civil offense. They believed that the pursuit of happiness was only possible through the ability to acquire property, I know for myself the pursuit of some worldly property has made my life infinitely more enjoyable than it might otherwise be if the government were allowed unlimited interference. Asset forfeiture was something the founders believed should not ever take place without due process and even then should never be excessive to the crime’s relative punishment. Our modern, over reaching state governments have been incorporated to this clause through the fourteenth amendment and the state of Indiana recently discovered the SCOTUS’s displeasure with the states violation of this clause. Typically local municipalities have explored civil asset forfeiture as yet another revenue stream for their police departments and their local government budgets. In some instances these forfeitures have taken place prior to any convictions and prior to any opportunity for the individual to defend themselves from charges being filed.

In the Timbs v Indiana case the SCOTUS justices ruled rather definitively on this subject. For those unfamiliar with this particular case here are some highlights. Tyson Timbs at one time was a drug addict with a recurring addiction problem. His father died in 2012 and left him enough money to buy a Land Rover, and the balance of the money after that purchase was sadly used to once again support Mr. Timbs addiction issues. Timbs then stupidly decided to sell some of those drugs worth about $225 to state undercover officers. He plead guilty and was sentenced to five years probation and ordered to pay a fine of $1200 which he paid. The state then decided to step in and use their civil asset forfeiture laws and confiscated the Land Rover, a vehicle that both the state and Mr. Timbs agree is worth at least four times the maximum penalty that Timbs could have faced had he been ordered by the judge to pay the maximum fine. We already know that Timbs was not ordered to pay the maximum and he paid the amount required in the finding against him. Timbs filed suit and the Indiana Court of Appeals agreed with Mr. Timbs, however the Supreme Court of Indiana said that SCOTUS had not made it clear whether or not incorporation applied to the eighth amendment at the state level. Consequently the Indiana Supreme Court reversed the Court of Appeals decision and allowed the state of Indiana to keep the Land Rover even though it was clear the state was not offering Mr. Timbs compensation beyond the maximum allowable fine. They were just keeping the vehicle and offering zero back to Mr. Timbs.

SCOTUS obliged the state of Indiana and offered a 9-0 decision reversing the Indiana Supreme Court. A unanimous decision between liberals and conservatives usually means that the Court has decided to clearly specify that particular case as a precedent and to remove any confusion as to the nature of Court’s feelings.

Here’s hoping that every jurisdiction that was using civil asset forfeiture to pad their budgets now gets the message and stops this onerous process post haste. For me civil asset forfeiture was just another of many examples of how government will utilize its power to enrich its own coffers without regard for the protections afforded us in our Bill of Rights.

Liberty requires eternal vigilance against foreign enemies, as well as vigilance against our own government. A government that no longer fears its own people or feels its answerable to those people is no longer a government of we the people and instead becomes something more sinister even if the intent was to never be sinister. Well meaning over reach, is still over reach. That’s true whether we are discussing health care, firearms, or civil asset forfeiture.

Here’s my standard disclaimer, all of this is just the opinion of one increasingly cranky old curmudgeon. That opinion is nothing more than opinion of a layperson. That said the greatest thing about the United States of America is even a curmudgeon like me is allowed to express that opinion as often and as loudly as I care to do so in whatever forum is afforded me. And I love this country for that one simple reality.

Thanks for reading, let me know your thoughts on these most interesting and topical of amendments.

Thanks, V. Lots to ponder here.

Category: Crime, Death penalty, Guest Post, Legal, The Constitution

Comments (4)

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  1. Mason says:

    “He’s planning for the Ninth and Tenth soon, and then he’ll get to the one we’ve all been waiting for.”

    The Eleventh Amendment?

    I smart cause me went to public skool.

  2. Fyrfighter says:

    VoV, (or anyone else), I may be wrong, but wasn’t the “cruel and unusual” argument used against Sheriff Joe in AZ, regarding tent cities, no internet, and bologna sammichs? What’s your take on those interpretations? Somehow I’m thinking the Founding Fathers would disagree with that..

    • Veritas Omnia Vincit says:

      That was one of the allegations against the facility. The more accurate one had to do with the cost of the facility. According to Arpaio’s successor closing the facility saved the taxpayers 4.5 million dollars…

      I’m okay with punishment that fits the crime. The tax payers should bear the burden of the cost of incarceration. For profit prison should be illegal because it creates confinement of humans as a profit center which does very little to incentivize the government to reduce the number of laws and decrease the size of government.

  3. 5th/77th FA says:

    Summer school been rough boys. ‘Least VoV’s lessons haven’t been the b busters of math and science like Hondo’s.

    I am a firm believer in the whole fair trial by jury of your peers. I am also a VERY firm believer in swift, sure, and the punishment fit the crime. Lawers (different from Counselors/Attorneys) have bent the court system to favor the criminal with money/power and the common person can be run roughshod over as you pointed out. Criminals have taken over the prisons, the courts, and the Congress. Bring back real punishment and show it on the evening news.