Cruel and Unusual Punishment

                The topic of discussion for this Constitution Monday comes from the Eighth Amendment to the Constitution of the United States: 

“… cruel and unusual punishments [shall not be] inflicted.”  Simply put, this clause gives criminals the right to be treated fairly.

                W. Cleon Skousen stated, “At the time of the adoption of the Constitution the British penalty for high treason was having the convicted person `hanged by the neck and then cut down alive, then he was disemboweled while yet living.  His head was cut off and his body divided into four parts for disposition by the King.’

                “The English law also provided for cutting off the ears, flogging, cutting off hands, castrating, standing in the pillory, slitting of the nose, and branding on the cheek.  There were also certain situations for which there was `perpetual imprisonment.’” (See The Making of America – The Substance and Meaning of the Constitution, p. 711-712.)

                David F. Forte of The Heritage Foundation explained:  “There has been much debate over the categories of punishments covered by the Cruel and Unusual Punishment Clause.  Possible categories at issue are (1) punishments not prescribed by the legislature, (2) torturous punishments, and (3) disproportionate and excessive punishments.  Although the issue is disputed, the weight of scholarly opinion indicates that the ban on cruel and unusual punishment in the 1689 English Bill of Rights applied only to punishments not authorized by Parliament.  The American colonial understanding, on the other hand, was that the ban applied to torturous punishments such as pillorying, disemboweling, decapitation, and drawing and quartering….” (See The Heritage Guide to the Constitution, p. 364.)

Excessive Bail

              The topic of discussion for this Constitution Monday comes from the Eighth Amendment to the Constitution of the United States:  “Excessive bail shall not be required….”  If the crime is one that includes the right to bail, the arrested person has the right to be released without paying excessive bail. 

                W. Cleon Skousen explained that “`Excessive’ bail is requiring a prisoner to put up a bond which is so high that he cannot possibly provide it and thereby regain his freedom pending the date of the trial.  Of course, a heavy bail or refusal to grant bail to a person who has committed a serious crime or is otherwise dangerous to the community may be considered `reasonable and necessary.’.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 711.)

                David F. Forte of The Heritage Foundation explained that the “text of the Eighth Amendment derives from the 1689 English Bill of Rights, redacted in the Virginia Declaration of Rights and recommended by the Virginia ratifying convention.  The English version used the world `bail ought not be required’ as opposed to the amendment’s `bail shall not be required,’ the latter reflecting James Madison’s insistence that the amendments be legally enforceable and not mere hortatory statements.  When considering the amendment, one Member of Congress thought the wording unclear.  Nevertheless, Congress approved the language by a strong majority, perhaps because its phrasing had such a solid pedigree.”  (See The Heritage Guide to the Constitution, p. 363.)