Eighth Amendment to the United States Constitution
The Eighth Amendment (Amendment VIII) of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. The phrases in this amendment originated in the English Bill of Rights of 1689.
The prohibition against cruel and unusual punishments has led courts to hold that the Constitution totally prohibits certain kinds of punishment, such as drawing and quartering. Under the Cruel and Unusual Punishment Clause, the Supreme Court has struck down the application of capital punishment in some instances, but capital punishment is still permitted in some cases where the defendant is convicted of murder.
The Supreme Court has held that the Excessive Fines Clause prohibits fines that are "so grossly excessive as to amount to a deprivation of property without due process of law." The Court struck down a fine as excessive for the first time in United States v. Bajakajian (1998). Under the Excessive Bail Clause, the Supreme Court has held that the federal government cannot set bail at "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.
The Supreme Court has ruled that the Cruel and Unusual Punishment Clause applies to the states as well as to the federal government, but the Excessive Bail Clause has not been applied to the states. On February 20, 2019, the Supreme Court ruled unanimously in Timbs v. Indiana that the Excessive Fines Clause also applies to the states.
- 1 Text
- 2 Background
- 3 Excessive bail
- 4 Excessive fines
- 5 Cruel and unusual punishments
- 6 See also
- 7 References
- 8 External links
The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury that had led to executions of many people Oates had wrongly accused. Oates was sentenced to imprisonment, including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court's Eighth Amendment jurisprudence. The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner. The reason why the judges in Oates' perjury case were not allowed to impose the death penalty (unlike in the cases of those whom Oates had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.
England's declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day. Members of Parliament then explained in August 1689 that "the Commons had a particular regard…when that Declaration was first made" to punishments like the one that had been inflicted by the King's Bench against Titus Oates. Parliament then enacted the English Bill of Rights into law in December 1689. Members of parliament characterized the punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant" and "exorbitant".
There is some scholarly dispute about whom the clause intended to limit. In England, the "cruel and unusual punishments" clause may have been a limitation on the discretion of judges, requiring them to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second)....
Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may "inflict unusual and severe punishments." Henry emphasized that Congress should not be allowed to depart from precedent:
What has distinguished our ancestors?--That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany....
In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required."
However, the English Bill of Rights did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious.
The Supreme Court has also permitted "preventive" detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the Excessive Bail Clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil." In Stack v. Boyle, 342 U.S. 1 (1951), the Supreme Court declared that a bail amount is "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.
The incorporation status of the Excessive Bail Clause is unclear. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In McDonald v. City of Chicago (2010), the right against excessive bail was included in a footnote listing incorporated rights.
Waters-Pierce Oil Co. v. TexasEdit
In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines are those that are "so grossly excessive as to amount to a deprivation of property without due process of law". The Court wrote in its syllabus:
The fixing of punishment for crime and penalties for unlawful acts is within the police power of the state, and this Court cannot interfere with state legislation in fixing fines, or judicial action in imposing them, unless so grossly excessive as to amount to deprivation of property without due process of law. Where a state antitrust law fixed penalties at $5,000 a day, and, after verdict of guilty for over 300 days, a defendant corporation was fined over $1,600,000, this Court will not hold that the fine is so excessive as to amount to deprivation of property without due process of law where it appears that the business was extensive and profitable during the period of violation, and that the corporation has over $40,000,000 of assets and has declared dividends amounting to several hundred percent
The Court further stated in its opinion:
[I]t is contended that the fines imposed are so excessive as to constitute a taking of the defendant's property without due process of law. It is not contended in this connection that the prohibition of the Eighth Amendment to the federal Constitution against excessive fines operates to control the legislation of the states. The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law.
In essence, the government must not be able to confiscate such a large amount of property without following an established set of rules created by the legislature.
Browning-Ferris v. KelcoEdit
In Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), the Supreme Court ruled that the Excessive Fines Clause does not apply "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded". While punitive damages in civil cases are not covered by the Excessive Fines Clause, such damages were held to be covered by the Due Process Clause of the Fourteenth Amendment, notably in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). 
Austin v. United StatesEdit
In Austin v. United States 509 U.S. 602 (1993), the Supreme Court ruled that the Excessive Fines Clause does apply to civil asset forfeiture actions taken by the federal government, in the specific case, the government's seizure of the petitioner's auto body shop on the bases of one charge of drug possession for which he had served seven years in prison.
United States v. BajakajianEdit
In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court ruled that it was unconstitutional to confiscate $357,144 from Hosep Bajakajian, who had failed to report possession of over $10,000 while leaving the United States. In what was the first case in which the Supreme Court ruled that a fine violated the Excessive Fines Clause, the Court held that it was "grossly disproportional" to take all of the money Mr. Bajakajian had attempted to take out of the United States in violation of a federal law that required that he report an amount in excess of $10,000. In describing what constituted "gross disproportionality", the Court could not find any guidance from the history of the Excessive Fines Clause, and so relied on Cruel and Unusual Punishment Clause case law:
We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); see also Gore v. United States, 357 U.S. 386, 393 (1958) ("Whatever views may be entertained regarding severity of punishment, ... these are peculiarly questions of legislative policy"). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
Thus the Court declared that, within the context of judicial deference to the legislature's power to set punishments, a fine would not offend the Eighth Amendment unless it were "grossly disproportional to the gravity of a defendant's offense".
Timbs v. IndianaEdit
In Timbs v. Indiana the Supreme Court ruled that the Excessive Fines Clause applies to state and local governments under the Due Process Clause of the Fourteenth Amendment. The case involves the use of civil asset forfeiture to seize a $42,000 vehicle under state law in addition to the imposition of a $1,200 fine for drug trafficking charges, house arrest, and probation.
Cruel and unusual punishmentsEdit
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.
In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied previously in cases against the federal government.
Justice Potter Stewart's opinion for the Robinson Court held that "infliction of cruel and unusual punishment is in violation of the Eighth and Fourteenth Amendments." The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:
Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, "cruel and unusual punishments" have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.
- The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
- "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
- "A severe punishment that is clearly and totally rejected throughout society."
- "A severe punishment that is patently unnecessary."
Justice Brennan also wrote that he expected no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles. In this way, the United States Supreme Court "set the standard that a punishment would be cruel and unusual [if] it was too severe for the crime, [if] it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty."
Punishments forbidden regardless of the crimeEdit
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment. In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Supreme Court ruled that the death penalty constituted cruel and unusual punishment if the defendant is under age 16 when the crime was committed. Furthermore, in Roper v. Simmons, 543 U.S. 551 (2005), the Court barred the executing of people who were under age 18 when the crime was committed. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court declared that executing people who are mentally handicapped constituted cruel and unusual punishment.
Punishments forbidden for certain crimesEdit
The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by revoking his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society."
In Robinson v. California, 370 U.S. 660 (1962), the Court decided that a California law authorizing a 90-day jail sentence for "be[ing] addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness," and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote:
To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.
However, in Powell v. Texas, 392 U.S. 514 (1968), the Court upheld a statute barring public intoxication by distinguishing Robinson on the basis that Powell dealt with a person who was drunk in public, not merely for being addicted to alcohol.
Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, 463 U.S. 277 (1983), that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration to the offense. The Court outlined three factors that were to be considered in determining if a sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." The Court held that in the circumstances of the case before it and the factors to consider, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual.
However, in Harmelin v. Michigan, 501 U.S. 957 (1991), a fractured Court retreated from the Solem test and held that for non-capital sentences, the Eighth Amendment only constrains the length of prison terms by a "gross disproportionality principle." Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 672 grams (1.5 pounds) or more of cocaine. The Court acknowledged that a punishment could be cruel but not unusual, and therefore not prohibited by the Constitution. Additionally, in Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said "the Eighth Amendment contains no proportionality guarantee," and that "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia wrote "If 'cruel and unusual punishments' included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous." Moreover, "There is little doubt that those who framed, proposed, and ratified the Bill of Rights were aware of such provisions [outlawing disproportional punishments], yet chose not to replicate them."
In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court declared that a life sentence without any chance of parole, for a crime other than murder, is cruel and unusual punishment for a minor. Two years later, in Miller v. Alabama, 567 U.S. ___ (2012), the Court went further, holding that mandatory life sentences without parole cannot be imposed on minors, even for homicide.
Death penalty for rapeEdit
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "death is indeed a disproportionate penalty for the crime of raping an adult woman." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years".
In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court extended the reasoning of Coker by ruling that the death penalty was excessive for child rape "where the victim's life was not taken." The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape. On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"
Special procedures for death penalty casesEdit
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5–4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found that capital punishment was unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold – even though it is sometimes claimed that it did – that capital punishment is per se unconstitutional.
States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7–2 ruling, that Georgia's revised death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case. Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the meaning of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."
Punishments specifically allowedEdit
In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a life sentence with the possibility of parole imposed per Texas's three strikes law for fraud crimes totaling $230. A few months later, Rummel challenged his sentence for ineffective assistance of counsel, his appeal was upheld, and as part of a plea bargain Rummel pled guilty to theft and was released for time served.
In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a 50 years to life sentence with the possibility of parole imposed under California's three strikes law when the defendant was convicted of shoplifting videotapes worth a total of about $150.
Evolving standards of decencyEdit
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency".
Originalists like Justice Antonin Scalia argue that societies may rot instead of maturing, and may decrease in virtue or wisdom instead of increasing. Thus, they say, the framers wanted the amendment understood as it was written and ratified, instead of morphing as times change, and in any event legislators are more competent than judges to take the pulse of the public as to changing standards of decency.
The "evolving standards" test is not without its scholarly critics as well. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of "societal consensus" and contemporary "standards of decency.
On the other hand, Professor Dennis Baker defends the evolving standards of decency test as advancing the moral purpose of the Eighth Amendment to ban all forms of unjust punishment.
The Court has applied evolving standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless "grossly disproportionate" to the offense in question. An example can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system: "The scope of the Amendment is not static....[D]isproportion, both among punishments and between punishment and crime, is a factor to be considered...."
Professor Stinneford asserts that the Eighth Amendment forbids punishments that are very disproportionate to the offense, even if the punishment by itself is not intrinsically barbaric, but Stinneford argues that "proportionality is to be measured primarily in terms of prior practice" according to the word "unusual" in the amendment, instead of being measured according to shifting and nebulous evolving standards. Similarly, Professor John Bessler points to "An Essay on Crimes and Punishments," written by Cesare Beccaria in the 1760s, which advocated proportionate punishments; many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it.
Thus, Stinneford and Bessler disagree with the view of Justice Scalia, joined by Chief Justice Rehnquist, in Harmelin v. Michigan where they denied that the Punishments Clause contains any proportionality principle. With Scalia and Rehnquist, Richard Epstein argues that the amendment does not refer broadly to the imposition of penalties, but rather refers more narrowly to the penalties themselves; Epstein says that judges who favor the broad view tend to omit the letter "s" at the end of the word "punishments".
- United States constitutional criminal procedure
- Capital punishment in the United States
- Crimes against humanity
- Medical care and safety of inmates
- "Bill of Rights: Primary Documents of American History". Library of Congress. Retrieved May 17, 2013.
- United States Government Printing Office. "EIGHTH AMENDMENT ---- FURTHER GUARANTEES IN CRIMINAL CASES ---- CONTENTS" (PDF). gpo.gov.
- "English Bill of Rights 1689".
- See Harmelin v. Michigan, 501 U.S. 957 (1991); Ingraham v. Wright, 430 U.S. 651 (1977); Furman v. Georgia, 408 U.S. 238 (1972); and Weems v. United States, 217 U.S. 349 (1910)
- Bartee, Alice. Litigating Morality, page 114 (Greenwood Publishing Group 1992).
- Chitty, Joseph. A Practical Treatise on the Criminal Law, page 293 (Edward Earle 1819). A judge in the Oates case said: "Crimes of this nature are left to be punished according to the Discretion of this Court, so far as that the Judgment extend not to Life or Member." See Harmelin v Michigan 501 U.S. 957 (1991).
- Claus, Laurence. "The Anti-Discrimination Eighth Amendment", Harvard Journal of Law and Public Policy, Vol. 28 (2004)
- John F. Stinneford, "Rethinking Proportionality under the Cruel and Unusual Punishments Clause," 97 Virginia Law Review 899, 926–61 (2011). Stinneford writes (emphasis added):
But, says Stinneford, punishment is unacceptable only if it is "both cruel and 'contrary to long usage'". Id. at 977 (emphasis added).
[E]ven if one stacked up all of Oates's punishments together—the fine, the whippings, the imprisonment, the pillorying, and the defrockment—their cumulative effect was less harsh as an absolute matter than some punishments considered acceptable at the time, such as drawing and quartering or burning at the stake. If the punishments inflicted on Oates were unacceptably cruel, this could only be because they were disproportionate to the crime of perjury.
- Donelson, Raff. Who are the Punishers? UMKC Law Review 86(2): 259-294 (2017)
- Blackstone, William. Commentaries (1769)
- Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170 (Rowman & Littlefield 1992).
- Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004).
- "Debate in Virginia Ratifying Convention" (June 16, 1788), in The Founders' Constitution
- David F. Forte. "The Heritage Guide to the Constitution: Cruel and Unusual Punishment". The Heritage Foundation. Retrieved April 1, 2013.
- McDonald, at fn. 12
- "8th Amendment Court Cases". Revolutionary War and Beyond. Retrieved April 1, 2013.
- "More on Large Civil Fines for Minor Violations". FindLaw. Retrieved October 24, 2014.
- 18 U.S.C. § 982
- Soloman, Matthew C. (February 1999). "The perils of minimalism: United States v. Bajakajian in the wake of the Supreme Court's civil double jeopardy excursion". Georgetown Law Journal. Retrieved February 11, 2009.[permanent dead link]
- "Supreme Court Limits Asset Forfeiture, Rules Excessive Fines Apply To States". National Public Radio. February 20, 2019. Retrieved February 20, 2019.
- Federman, Cary. The Body and the State: Habeas Corpus and American Jurisprudence, page 99 (SUNY Press 2006).
- Congressional Globe, 39th Cong., 1st Sess., 2542 (1866) quoted in Furman v. Georgia, 408 U.S. 238 (1972) (concurring opinion of Justice Douglas). The same words of John Bingham had been quoted in Justice Black's dissent in Adamson v. California, 332 U.S. 46 (1947); Black and three other dissenting justices had unsuccessfully urged in Adamson that the Eighth Amendment and the rest of the Bill of Rights be applied against the states.
- the International Justice Project. "Seminal Cases – Brief Bank & General Resources – the International Justice Project". Archived from the original on April 28, 2003. Retrieved January 7, 2012.
- Wilkinson, at 135 – 136.
- Melusky, Anthony and Pesto, Keith. Cruel and Unusual Punishment: Rights and Liberties Under the Law, page 87 (ABC-CLIO 2003).
- Finkel, Norman. Commonsense Justice: Jurors' Notions of the Law, page 138 (Harvard University Press 2001).
- The quoted sentence is from the opinion of Justice Scalia, joined by Chief Justice Rehnquist, in the later case of Harmelin v. Michigan, 501 U.S. 957 (1991).
- Dressler, Joshua (2009). "9.04 (B)". Understanding Criminal Law (Fifth ed.). LexisNexis. p. 98. ISBN 978-1-4224-2987-7.
- Miller, Wilbur. The Social History of Crime and Punishment in America, p. 416 (SAGE 2012).
- Ryan, Meghan. "Does the Eighth Amendment Punishments Clause Prohibit Only Punishments that Are Both Cruel and Unusual? Archived December 19, 2013, at the Wayback Machine", Washington University Law Review, Volume 87, p. 567 (2010).
- Denniston, Lyle (May 17, 2010). "Analysis: A limited break for juveniles". SCOTUSblog. Retrieved May 17, 2010.
- Mauro, Tony; Coyle, Marcia (May 17, 2010). "Justices rule on prison time for juveniles, sex offenders". The National Law Journal. Retrieved May 17, 2010.
- Miller v. Alabama, 567 U.S. ___ (2012).
- Greenhouse, Linda. "Supreme Court Rejects Death Penalty for Child Rape", New York Times (June 6, 2008)
- Linda Greenhouse (July 2, 2008). "In Court Ruling on Executions, a Factual Flaw". The New York Times. Retrieved July 2, 2008.
- Statement of Justice Scalia with whom the Chief Justice joins, respecting the denial of rehearing (October 1, 2008).
- Million, Joelle. Racial Issues in Criminal Justice: The Case of African Americans, page 180 (Greenwood 2003).
- Palmer, Louis. The Death Penalty: An American Citizen's Guide to Understanding Federal and State Laws, page 14 (McFarland 1998).
- Walton was overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002)
- "SOLEM v. HELM". Findlaw.
- Kennedy v. Louisiana, 554 U.S. ____ (2008).
- Roberts, Jane. "Scalia Defends U.S. Judiciary" Archived December 19, 2013, at the Wayback Machine, Scripps Howard News Service (December 18, 2013).
- Stinneford, John. "The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation", Northwestern University Law Review, Vol. 102, No. 4 (2008).
- "Constitutionalizing the Harm Principle". SSRN 1300356. Missing or empty
- Jackson v. Bishop, 404 F. 2d 571 - Court of Appeals, 8th Circuit 1968.
- Bessler, John D. "Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, and the Abolition Movement", Northwestern Journal of Law & Social Policy, Volume 4, Issue 2, Article 1 (2009)
- John D. Bessler, The Birth of American Law: An Italian Philosopher and the American Revolution (Durham, NC: Carolina Academic Press)
- Harmelin v. Michigan, 501 U.S. 957 (1991). Scalia wrote: "If 'cruel and unusual punishments' included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous." Moreover, "There is little doubt that those who framed, proposed, and ratified the Bill of Rights were aware of such provisions [outlawing disproportional punishments], yet chose not to replicate them."
- Epstein, Richard. "The Constitution’s Vanishing Act", Defining Ideas (December 16, 2013).
- Original Meaning: Cruel and Unusual Punishments – LOC Historian PA Madison