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8th Amendment to the U.S. Constitution – Bail & Punishment

James Madison is credited as being “the Father of the Bill of Rights.” The Bill of Rights is the first 10 amendments of the U.S. Constitution. Madison authored the Bill of Rights, and in 1791 it was ratified by the states. These amendments were specifically intended to expand the Constitution's protection of individual liberties.

Today’s blog regards the Eighth Amendment. The Eighth Amendment generally applies to criminal bail and punishment and does not typically apply in most civil procedures.


The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Notice the Eighth Amendment protects not only the amount of punishment one can receive after being found guilty but also the amount of bail that can be ordered prior to a person’s criminal trial or guilty plea.

Since its ratification in 1791, many have disagreed regarding what the Eighth Amendment requires.

In 1951[1], a defendant’s bail was set at an amount “higher than usual.” The prosecutor had argued that of the four times their office filed charges of this nature against defendants (but not this defendant), all four times those defendants failed to appear for proceedings, making a higher bail justifiable here. Stated differently, the prosecutor had essentially argued that the seriousness of the charge alone justified setting a higher bail.

The Supreme Court found such logic unconstitutional under the Eighth Amendment and commanded this court, and future courts, to ONLY consider evidence which specifically relates to a Defendant’s actual risk of failing to appear for court in making such determinations. They commented, “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”

In other words, no matter how heinous a crime was, a Defendant is still presumed innocent of it, and entitled to bail consistent with that presumption – based on his actual likelihood of appearing for court proceedings, and not based merely on the seriousness, or other nature, of the allegations which the Defendant denies.

The California Constitution provides: “Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. A person may be released on his or her own recognizance at the court’s discretion.”

It’s easy to see, the California Constitution tells courts to do exactly what the U.S. Supreme Court prohibited them from doing 70 years ago, which was: to disregard the presumption of innocence, and set different bails on identical defendants, who are charged with un-identical crimes, merely because of the seriousness, or other nature, of the charge or charges which said Defendant denies.

Numerous courts have published opinions over the years denouncing California’s bail laws as unconstitutional and limiting their effect.[2]

Nevertheless, if one observes any arraignment calendar in California, they would often see judges setting “higher bails” based on; “the seriousness of the offense,” “the nature of the charges,” “public safety,” and other impermissible factors unrelated to the Defendant’s likelihood of appearing in court for future required proceedings.

For these reasons and others, it is important to have a lawyer representing you at Arraignment or a Bail Hearing.


The Eighth Amendment also protects against “cruel and unusual punishment.”

In 2002[3], a man serving a sentence in an Alabama prison was handcuffed to a hitching post for 7 hours; made to remove his shirt and “remained shirtless all day while the sun burned his skin”; given very little water; taunted about his thirst by guards; and denied all bathroom breaks. The Supreme Court, acting 7 years later, deemed such treatment to violate the Eighth Amendment.

Put another way, if we didn't have the Eighth Amendment, people would be killed and tortured unfairly in relation to crimes they had committed.

The Death Penalty

One question that has divided the nation for years is whether or not the Death Penalty should be allowed. Statistics regarding American attitudes about such things have led to somewhat contradictory and confusing results.

In 2019, the Gallup Poll concluded: 56% of Americans “favored” the death penalty, while 42% “opposed” it, and 2% had “no opinion”. However, in the same year, the same poll also concluded when the question was altered to “which is the better penalty for murder”: 60% of Americans said “life imprisonment” was better, while 36% thought “the death penalty” was better, and 4% had “no opinion.”[4]

The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty, and how it must be carried out.[5]

For instance, courts may not impose the death penalty in child-rape and other cases in which “the victim is not killed” [6]; cases involving “mentally retarded” defendants [7]; or cases of crimes committed by juveniles.[8]


“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment is very important for a democratic form of government.

It entitles you to be treated as innocent at your criminal arraignment and prohibits courts from denying, or even increasing, your bail on the basis of “serious charges,” “public safety,” or anything else which doesn’t relate to your likelihood of appearing for court as required.

It also protects against the inhuman treatment of prisoners and entitles them to such food, water, bathroom breaks, and other human rights as all human beings deserve.

Winston S. Churchill once said, “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time…”

For more information about your constitutional rights, contact the Law Office of Ivan O.B. Morse today at (888) 865-0741. Our law firm serves the residents of Dublin and nearby communities such as Castro Valley, Livermore, San Ramon, Pleasanton, and Tracy, CA.


[1] Stack v. Boyle (1951) 342 U.S. 1.

[2] See In re Underwood (1973) 9 Cal.3d 345; Van Etta v. Scott (1980) 27 Cal.3d 424; People v. Barrow (1991) 233 Cal.App.3d 721; People v. Cortez (1992) 6 Cal.App.4th 1202; In re York (1995) 9 Cal.4th 1133; People v. Standish (2006) 38 Cal.4th 858; In re Samano (1995) 31 Cal.App.4th 984.

[3] Hope v. Pelzer (2002) 536 U.S. 730.

[4] https://deathpenaltyinfo.org/facts-and-research/public-opinion-polls/national-polls-and-studies

[5] Gregg v. Georgia (1976) 428 U.S. 153.

[6] Kennedy v. Louisiana (2008) 554 U.S. 407.

[7] Atkins v. Virginia (2002) 536 U.S. 304.

[8] Roper v. Simmons (2005) 543 U.S. 551.