Crossville Chronicle, Crossville, TN

August 28, 2013

Scout Report: On crime and punishment

By Clinton Gill
Glade Sun editor

CROSSVILLE — The Eighth Amendment of the U.S. Constitution contains three clauses and is the shortest of the amendments in the Bill of Rights. It reads as follows:

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

The Eighth Amendment was based off of the 1689 English Bill of Rights. In fact, it was taken almost verbatim, with one distinct change: “That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The distinction lies in one operative word: “ought not be required” versus “shall not be required.” This change reflects James Madison’s insistence that the amendments be legally enforceable, not mere hortatory statements. It’s the difference between telling your child they “ought” to clean their room versus mandating that they do so …  as in “ye shall clean thine room or I shall smite thee” (rules  carry more authority in the archaic tense).

The English Bill of Rights was enacted in response to the infamously tyrannical Star Chamber. The Star Chamber originally served as a king’s council to supervise lords under Henry VII. Inevitably it grew into an oppressive tool of the crown used to destroy political opposition, generate revenue for the treasury through extraordinary fines and confiscation, and to punish disobedience to its illegal proclamations.

Punishments and fines were arbitrary, and often outside the scope of the law. Often these judgments were extremely harsh and not part of any written law; they essentially made up the rules as they went along. The results were punishments issued for cruelty and vindication rather than for the sake of justice. The English Bill of Rights made it illegal for courts to impose any punishment or fine that was unknown to the common law.

Moreover, it established an essential pillar of justice – bail. Bail is money or property paid by a defendant in a criminal case that is to be forfeited if they do not return for their trial; basically, it’s just an insurance policy. Without a bail system, courts would have no assurance that those facing charges wouldn’t just skip out at the first chance. As such, courts would have no recourse but to keep them locked up until trial, causing an undue burden. Remember, our system of justice is hinged on the premise that everyone is innocent until proven guilty. It takes time to build a case, for both the prosecution and defense teams. Often, several weeks or months, and sometimes even years pass after an initial arrest is made for the trial to conclude. During this time, the defendant would not be able to work, which would create a hardship on top of the financial burden associated with navigating the legal system. They would also miss out on important parts of their lives, such as holidays and family time. The intent of the amendment is both to enforce the presumption of innocence until guilt has been proven, as well as to permit those accused the freedom to prepare an adequate defense.

The provisions of the Eighth Amendment also demand that punishments must be fair and proportional to the crime. The “cruel and unusual punishment” clause draws the most contention. “Cruel” and “unusual” seem like such subjective terms – what one may consider such, another may not. Indeed, punishments that may have been considered commonplace 200 years ago would probably be considered barbaric by today’s society. 

On the floor of the first Congress that proposed the Eighth Amendment, Representative Livermore complained about the vagueness of the amendment’s language: “It is sometimes necessary to hang a man, villains often deserve a whipping, and perhaps having their ears cut off, but are we in the future to be prevented from inflicting those punishments because they are ‘cruel’?”

The Supreme Court has wavered on definitions over the years, often misinterpreting the original intent. In the 1958 case of Trop v Dulles, for instance, it ruled that “cruel and unusual punishment” included revoking citizenship, which it considered to be “the total destruction of the individual’s status in organized society.” The case further established that the definitions of “cruel” and “unusual” should change over time, being those punishments which offend society’s “evolving sense of decency.”

Taken in the historical context of the language, however, it is much less convoluted. As noted, the amendment was taken almost verbatim from the English Bill of Rights, which tells us these practices were prohibited because such punishments were “utterly and directly contrary to the known laws and statutes and freedom of this realm.”

The English Bill of Rights was a response to the Star Chamber, which, as discussed earlier, would make up the rules as it went along. James Madison understood “unusual” to mean outside the normal scope of the written law. The Eighth Amendment was written as a protection against the Judicial Branch more so than the Legislative Branch. On the matter of “cruelty,” again this was a check on judges. Back then, legislators had to live under the same rules that they wrote (unlike our modern “representatives”), ensuring that the proscribed punishments would not be overly harsh.

The Constitution was not written for a perfect people; if there were such a thing, laws would not be necessary. The point of the Eighth Amendment is that punishments should not be arbitrary or whimsical. It does not, in any way, preclude the death penalty. It simply means that punishments should be thoughtful, methodical and apply to everyone equally.

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” James Madison

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Clinton Gill is editor of the Glade Sun. His column is published weekly. He may be reached at