Note: This is an educational course, not legal advice.
The Eighth Amendment closes the criminal procedure unit, after juries and confrontation. It governs what happens after conviction, and before trial for bail.
Why it works
The death penalty. In Furman v. Georgia (1972), a short per curiam opinion, five justices held that death sentences as then imposed were unconstitutional; each of the nine wrote separately. Two (Brennan and Marshall) would have held the penalty always unconstitutional; three objected to how arbitrarily it was applied. States rewrote their laws, and in Gregg v. Georgia (1976) the Court upheld Georgia's new system: a separate sentencing phase, guidance for juries about aggravating and mitigating factors, and appellate review. Mandatory death sentences were struck down the same day (Woodson v. North Carolina, 1976). The Court has since placed categorical limits, asking about "evolving standards of decency" (a phrase from Trop v. Dulles, 1958) as shown by state laws and practice: no death penalty for people with intellectual disabilities (Atkins v. Virginia (2002)), for people under 18 at the time of the crime (Roper v. Simmons (2005)), or for crimes against individuals that did not take a life (Kennedy v. Louisiana (2008)). Justices who read the clause by its original meaning, such as Justices Scalia and Thomas, have argued that it bars only punishments considered cruel and unusual when adopted, and have dissented from some of these limits; others defend the evolving-standards approach. Fines. In Timbs v. Indiana (2019) Indiana sought to forfeit a man's Land Rover, worth about four times the maximum fine for his drug crime. The Court unanimously held that the Excessive Fines Clause applies to the states.
Key idea
The Eighth Amendment bars excessive bail and fines and cruel and unusual punishments. Furman v. Georgia (1972) halted death sentences under existing laws; Gregg v. Georgia (1976) upheld revised procedures; the Court has barred the death penalty for people with intellectual disabilities (Atkins) and for those under 18 at the crime (Roper); Timbs v. Indiana (2019) incorporated the Excessive Fines Clause.
Worked example: Age at the time of the crime
A man committed a murder at 17 and is tried at 20. May the state seek the death penalty?
- Roper v. Simmons (2005) bars the death penalty for crimes committed under 18.
- What counts is age at the time of the crime, not at trial.
Answer: No.
Worked example: Furman's effect
Did Furman v. Georgia abolish the death penalty?
- Furman struck down death sentences as then imposed, mainly because of arbitrary application.
- Only two justices would have held the penalty always unconstitutional.
- Four years later, Gregg upheld revised statutes.
Answer: No; it struck down the systems then in use, and Gregg upheld revised ones.
Common mistake
Thinking Furman abolished the death penalty. It struck down the way it was then imposed; Gregg upheld revised statutes four years later. Many states and the federal government have the death penalty today, and many states have abolished it by law.