Excessive bail shall not be required. nor excessive fines imposed, nor cruel and unusual punishments inflicted.
In a just society where the individual, under God, is esteemed as supreme the Eighth Amendment's protections follow naturally. They rightly delineate the line between the accused criminal, who is innocent until proven guilty beyond a reasonable doubt, and the state (i.e. the prohibition against excessive bail) and the actual criminal and his judge (i.e. no excessive fines imposed, nor cruel and unusual punishments inflicted).1 When a society no longer heeds God as man's supreme authority and further rejects God's truth, expressed in our Declaration of Independence, that ALL MEN ARE CREATED EQUAL, then it is a short step, for those men who consider themselves above others, to treat their fellow man as undeserving of the protections that they would expect for themselves. And so it is in the United States today, where our governments are rolling back the eighth amendment protections our forefathers held so dear (e.g. in the State of Vermont an amendment was recently passed eliminating bail in certain instances) and perverting its meaning (e.g. anti-capital punishment forces). In order to thwart this corruption, we must be armed with the truth. Therefore, in this column, I seek to share with you the meaning of the Eighth Amendment.
The Eighth Amendment begins "[e]xcessive bail shall not be required ... " The word "excessive" applies to that which goes beyond what is proper, right, or usual. In quantity it is an amount greater than that which is necessary. The word "bail," on the other hand, refers to the amount of money deposited with and/or property pledged to the court to secure the release of a person, accused of a crime, pending trial. The purpose of bail is to secure the defendant's appearance in court to answer the charges against him. Given the preeminence of the individual in our society, it then makes sense that bail is to be tailored by the court to the facts and circumstances of the particular case and should be designed to be sufficient to cause a defendant to remain in the jurisdiction and appear to answer the charges against him, but no more. This evaluation, at a minimum, would include the nature of the crime, the history of the defendant and his personal financial situation and/or that of his family or friends. To exceed that which is necessary, proper or right is to require excessive bail in violation of the Eighth Amendment.
The next clause prohibits the imposition of "excessive fines." A ''fine" is a monetary penalty or punishment that is imposed for criminal2 wrongdoing. It can be imposed instead of some other punishment (e.g. imprisonment or other loss of liberty) or in addition thereto. In some instances it is appropriate for a fine to be retributive (i.e. one receives the "just deserts" for his acts), while in other instances it may be more appropriate for the fine to be corrective in nature. An excessive fine therefore is not determined merely by its nature or amount, but rather in reference to its purpose - i.e. retributive or corrective. Again it is not something that should be meted out uniformly, but rather tailored to the facts and circumstances at hand.
The final clause prohibits the infliction of "cruel and unusual punishments." The pivotal word in this clause is "punishment" for "cruel" and "unusual" are simply modifiers of that word. The word "punishment" generally implies the infliction of some penalty on a wrongdoer and generally connotes retribution rather than correction. "Cruel" implies an indifference to the suffering of others or a disposition to inflict pain and suffering on others. It is the antithesis of mercy and the fact that all men are created equal because indifference to the suffering of another can only exist where the other person is somehow considered less of a person than the one doing the inflicting. "Unusual" refers to that which is not usual or common or strange; rare; or exceptional. It is essentially a reference to the common law because the common law accords with the customs and manners of the people. Thus, by reference to the common law one finds, at the time of the founding of our nation, the following were commonly employed methods of corporal punishment: death, imprisonment (with or without labor), whipping, banishment. Non-corporal punishments, on the other hand, included: fines, forfeitures, suspensions or deprivations of some political or civil right, deprivation of office and being rendered incapable to hold office, and compulsion to remove nuisances. Therefore punishment, according to this clause, should be meted out with a respect for the life of the wrongdoer and his equal stature, with you, before God and with a reverence for the common law (i.e. the cumulative experience of a free and sovereign people over a long period of time). Is that what we have been doing?