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Eighth Amendment to the United States Constitution
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Pertinent part of the English Bill of Rights, December 1689.
The American Bill of Rights in the National Archives, March 1789
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. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment Clause also applies to the states. The phrases in this amendment originated in the English Bill of Rights of 1689. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights.[1]
Contents
[hide]
1 Text
2 Background
3 Excessive bail
4 Excessive fines
4.1 Waters-Pierce Oil Co. v. Texas
4.2 Browning-Ferris v. Kelco
4.3 United States v. Bajakajian
5 Cruel and unusual punishments
5.1 Punishments forbidden regardless of the crime
5.2 Punishments forbidden for certain crimes
5.2.1 Death penalty for rape
5.3 Special procedures for death penalty cases
5.4 Punishments specifically allowed
5.5 Evolving standards of decency
5.6 Proportionality
6 See also
7 References
8 External links
Text[edit]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[2]
The hand-written copy of the proposed Bill of Rights, 1789, cropped to just show the text that would later be ratified as the Eighth Amendment
Background[edit]
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."[3]
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 which had caused many executions of people whom 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.[4] The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner.[5] 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.[6]
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.[7] 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.[7] Parliament then enacted the English Bill of Rights into law in December 1689.[7] Members of parliament characterized the punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant" and "exorbitant".[8]
In England, the "cruel and unusual punishments" clause was a limitation on the discretion of judges, and required judges 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)....[9]
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.[10]
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."[11] 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....[12]
Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.[10]
Excessive bail[edit]
Main article: Excessive Bail Clause
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." Nevertheless, the Bill 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 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.[13]
Excessive fines[edit]
Waters-Pierce Oil Co. v. Texas[edit]
In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines are those which 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 Waters-Pierce Oil Co. v. Texas the Supreme Court set up a standard for judging whether or not a fine is "excessive." The standard set up is that a fine must not be "so grossly excessive as to amount to deprivation of property without due process of law." In other words, 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.[14]
Browning-Ferris v. Kelco[edit]
In Browning-Ferris Industries v. Kelco Disposal, 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 v. Campbell, 538 U.S. 408 (2003). [15]
United States v. Bajakajian[edit]
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 failed to report possession of over $10,000 while leaving the United States.[16] In what was the first case in which the Supreme Court ruled a fine to violate the Excessive Fines Clause,[17] the Court held that it was "grossly disproportional" to take all of the money which Mr. Bajakajian attempted to take out of the United States, in violation of a federal law that required him to 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." [13]
Cruel and unusual punishments[edit]
Main article: Cruel and unusual punishment
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.[18]
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.[19]
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
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."[20]
Punishments forbidden regardless of the crime[edit]
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.[21] 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 crimes[edit]
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.[22] 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.[23] However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."[24]
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.[25]
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 the 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 be considered, 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.[26][27] 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.[28][29] 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.[30]
Death penalty for rape[edit]
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."[31] 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.[32] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order 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.'"[33]
Special procedures for death penalty cases[edit]
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 capital punishment to be 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.[34]
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 new 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 to be 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.[35] 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.[36]
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 allowed[edit]
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Court stated that death by firing squad was not cruel and unusual punishment under the Eighth Amendment.
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 after pleading guilty Rummel was released.[37]
In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence without the possibility of parole for possession of 672 grams (1.5 pounds) of cocaine.
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 decency[edit]
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".[38]
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 to be 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.[39]
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."[40]
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.[41]
Proportionality[edit]
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.[38] 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...."[42]
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.[8] 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.[43][44]
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.[45] 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".[46]
See also[edit]
United States constitutional criminal procedure
Capital punishment in the United States
Crime against humanity
Medical care and safety of inmates
Healthcare in American women's prisons
Michelle Kosilek
Estelle v. Gamble (1976)
Helling v. McKinney (1993)
Farmer v. Brennan (1994)
Prisoner abuse in the United States
Infectious diseases within American prisons
References[edit]
Jump up ^ "Bill of Rights: Primary Documents of American History". Library of Congress. Retrieved May 17, 2013.
Jump up ^ United States Government Printing Office. "EIGHTH AMENDMENT ---- FURTHER GUARANTEES IN CRIMINAL CASES ---- CONTENTS" (PDF). gpo.gov.
Jump up ^ "English Bill of Rights 1689".
Jump up ^ 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)
Jump up ^ Bartee, Alice. Litigating Morality, page 114 (Greenwood Publishing Group 1992).
Jump up ^ 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).
^ Jump up to: a b c Claus, Laurence. "The Anti-Discrimination Eighth Amendment", Harvard Journal of Law and Public Policy, Vol. 28 (2004)
^ Jump up to: a b John F. Stinneford, "Rethinking Proportionality under the Cruel and Unusual Punishments Clause," 97 Virginia Law Review 899, 926–61 (2011). Stinneford writes (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.
But, says Stinneford, punishment is unacceptable only if it is "both cruel and 'contrary to long usage'". Id. at 977 (emphasis added).
Jump up ^ Blackstone, William. Commentaries (1769)
^ Jump up to: a b Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170 (Rowman & Littlefield 1992).
Jump up ^ Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004).
Jump up ^ "Debate in Virginia Ratifying Convention" (June 16, 1788), in The Founders’ Constitution
^ Jump up to: a b David F. Forte. "The Heritage Guide to the Constitution: Cruel and Unusual Punishment". The Heritage Foundation. Retrieved April 1, 2013.
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Jump up ^ "More on Large Civil Fines for Minor Violations". News.FindLaw. Retrieved 24 October 2014.
Jump up ^ 18 U.S.C. § 982
Jump up ^ 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 2009-02-11. [permanent dead link]
Jump up ^ Federman, Cary. The Body and the State: Habeas Corpus and American Jurisprudence, page 99 (SUNY Press 2006).
Jump up ^ 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.
Jump up ^ 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.
Jump up ^ Wilkinson, at 135 – 136.
Jump up ^ Melusky, Anthony and Pesto, Keith. Cruel and Unusual Punishment: Rights and Liberties Under the Law, page 87 (ABC-CLIO 2003).
Jump up ^ Finkel, Norman. Commonsense Justice: Jurors' Notions of the Law, page 138 (Harvard University Press 2001).
Jump up ^ 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).
Jump up ^ Dressler, Joshua (2009). "9.04 (B)". Understanding Criminal Law (Fifth ed.). LexisNexis. p. 98. ISBN 978-1-4224-2987-7.
Jump up ^ Miller, Wilbur. The Social History of Crime and Punishment in America, p. 416 (SAGE 2012).
Jump up ^ 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).
Jump up ^ Denniston, Lyle (May 17, 2010). "Analysis: A limited break for juveniles". SCOTUSblog. Retrieved May 17, 2010.
Jump up ^ Mauro, Tony; Coyle, Marcia (May 17, 2010). "Justices rule on prison time for juveniles, sex offenders". The National Law Journal. Retrieved May 17, 2010.
Jump up ^ Miller v. Alabama, 567 U.S. ___ (2012).
Jump up ^ Greenhouse, Linda. "Supreme Court Rejects Death Penalty for Child Rape", New York Times (June 6, 2008)
Jump up ^ Linda Greenhouse (July 2, 2008). "In Court Ruling on Executions, a Factual Flaw". The New York Times. Retrieved July 2, 2008.
Jump up ^ Statement of Justice Scalia with whom the Chief Justice joins, respecting the denial of rehearing (October 1, 2008).
Jump up ^ Million, Joelle. Racial Issues in Criminal Justice: The Case of African Americans, page 180 (Greenwood 2003).
Jump up ^ Palmer, Louis. The Death Penalty: An American Citizen's Guide to Understanding Federal and State Laws, page 14 (McFarland 1998).
Jump up ^ Walton was overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002)
Jump up ^ "SOLEM v. HELM". Findlaw.
^ Jump up to: a b Kennedy v. Louisiana, 554 U.S. ____ (2008).
Jump up ^ Roberts, Jane. "Scalia Defends U.S. Judiciary" Archived December 19, 2013, at the Wayback Machine., Scripps Howard News Service (December 18, 2013).
Jump up ^ 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).
Jump up ^ "Constitutionalizing the Harm Principle". SSRN 1300356  . Missing or empty |url= (help)
Jump up ^ Jackson v. Bishop, 404 F. 2d 571 - Court of Appeals, 8th Circuit 1968.
Jump up ^ 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)
Jump up ^ John D. Bessler, The Birth of American Law: An Italian Philosopher and the American Revolution (Durham, NC: Carolina Academic Press)
Jump up ^ 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."
Jump up ^ Epstein, Richard. "The Constitution’s Vanishing Act", Defining Ideas (December 16, 2013).
External links[edit]
Original Meaning: Cruel and Unusual Punishments – LOC Historian PA Madison
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Religious Freedom Restoration Act
From Wikipedia, the free encyclopedia
Jump to: navigation, search
For state versions of the RFRA, see State Religious Freedom Restoration Acts. For the Indiana legislation, see Indiana SB 101.
Religious Freedom Restoration Act of 1993
Long title
An Act to protect the free exercise of religion.
Acronyms (colloquial)
RFRA
Enacted by
the 103rd United States Congress
Effective
November 16, 1993
Citations
Public law
103-141
Statutes at Large
107 Stat. 1488
Codification
Titles amended
42 U.S.C.: Public Health and Social Welfare
U.S.C. sections created
42 U.S.C. ch. 21B § 2000bb et seq.
Legislative history
Introduced in the House as H.R. 1308 by Chuck Schumer (D-NY) on March 11, 1993
Committee consideration by House Judiciary, Senate Judiciary
Passed the House on May 11, 1993 (passed voice vote)
Passed the Senate on October 27, 1993 (97-3, Roll call vote 331, via Senate.gov, in lieu of S. 578) with amendment
House agreed to Senate amendment on November 3, 1993 (without objection)
Signed into law by President William J. Clinton on November 16, 1993
United States Supreme Court cases
City of Boerne v. Flores
Burwell v. Hobby Lobby
Zubik v. Burwell
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law that "ensures that interests in religious freedom are protected."[1] The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage[2]—passed the bill, and President Bill Clinton signed it into law.
RFRA was held unconstitutional by the United States Supreme Court, as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress's enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal and Burwell v. Hobby Lobby Stores, Inc.. These cases did not consider whether Congress was violating the Anti-Establishment Clause if it carves out exemptions based on religious laws from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores and other related RFR issues, twenty individual states have passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.[3]
Contents
[hide]
1 Provisions
2 Background and passage
2.1 Applicability
3 Challenges and weaknesses
4 Applications and effects
5 20th anniversary
6 See also
7 Notes and references
8 External links
Provisions[edit]
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[4] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[5]
The law provided an exception if two conditions are both met. First, the burden must be necessary for the "furtherance of a compelling government interest."[5] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[6] The second condition is that the rule must be the least restrictive way in which to further the government interest.
Background and passage[edit]
See also: American Indian Religious Freedom Act and Native American Graves Protection and Repatriation Act
This tipi is used for Peyote ceremonies in the Native American Church, one of the main religions affected by the Religious Freedom Restoration Act
The Religious Freedom Restoration Act applies to all religions, but is most pertinent[dubious – discuss] to Native American religions that are burdened by increasing expansion of government projects onto sacred land. In Native American religion the land they worship on is very important. Often the particular ceremonies can only take place in certain locations because these locations have special significance.[7] This, along with peyote use, are the main parts of Native American religions that are often left unprotected.
The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. In the 1960s, the Supreme Court interpreted this as banning laws that burdened a person's exercise of religion (e.g. Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972)). But in the 1980s the Court began to allow legislation that incidentally prohibited religiously mandatory activities as long as the ban was "generally applicable" to all citizens. Also, the American Indian Religious Freedom Act, intended to protect the freedoms of tribal religions, was lacking enforcement. This led to the key cases leading up to the RFRA, which were Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), and Employment Division v. Smith, 494 U.S. 872 (1990). In Lyng, the Court was unfavorable to sacred land rights. Members of the Yurok, Tolowa and Karok tribes tried to use the First Amendment to prevent a road from being built by the U.S. Forest Service through sacred land. The land that the road would go through consisted of gathering sites for natural resources used in ceremonies and praying sites. The Supreme Court ruled that this was not an adequate legal burden because the government was not coercing or punishing them for their religious beliefs.[8] In Smith the Court upheld the state of Oregon's refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.[9]
The Smith decision outraged the public. Many groups came together. Both liberal (like the American Civil Liberties Union) and conservative groups (like the Traditional Values Coalition) as well as other groups such as the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals joined forces to support RFRA, which would reinstate the Sherbert Test, overturning laws if they burden a religion.[10] The act, which was Congress's reaction to the Lyng and Smith cases, passed the House unanimously and the Senate 97 to 3 and was signed by U.S. President Bill Clinton.
Applicability[edit]
The RFRA applies "to all Federal law, and the implementation of that law, whether statutory or otherwise", including any Federal statutory law adopted after the RFRA's date of signing "unless such law explicitly excludes such application."[11]
Challenges and weaknesses[edit]
The Peyote cactus, the source of the mescaline used by Native Americans in religious ceremonies.
In 1997, part of this act was overturned by the United States Supreme Court. The Roman Catholic Archdiocese of San Antonio wanted to enlarge a church in Boerne, Texas. But a Boerne ordinance protected the building as a historic landmark and did not permit it to be torn down. The church sued, citing RFRA, and in the resulting case, City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court struck down the RFRA with respect to its applicability to States (but not Federally), stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment.[10] In response to the Boerne ruling, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious land owners.[12]
A number of states have passed state RFRAs, applying the rule to the laws of their own state, but the Smith case remains the authority in these matters in many states.[13]
The constitutionality of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme Court ruled against the government in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), which involved the use of an otherwise illegal substance in a religious ceremony, stating that the federal government must show a compelling state interest in restricting religious conduct.[14]
Post-Smith, many members of the Native American Church still had issues using peyote in their ceremonies. This led to the Religious Freedom Act Amendments in 1994, which state, "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation."[5]
Applications and effects[edit]
The Religious Freedom Restoration Act holds the federal government responsible for accepting additional obligations to protect religious exercise. In O'Bryan v. Bureau of Prisons it was found that the RFRA governs the actions of federal officers and agencies and that the RFRA can be applied to "internal operations of the federal government."[15] RFRA, in conjunction with President Bill Clinton's Executive Order in 1996, provided more security for sacred sites for Native American religious rites.[5]
As of 1996, the year before the RFRA was found unconstitutional as applied to states, 337 cases had cited RFRA in its three-year time range.[16] It was also found that Jewish, Muslim, and Native American religions, which make up only three percent of religious membership in the U.S., make up 18 percent of the cases involving the free exercise of religion.[16] The Religious Freedom Restoration Act was a cornerstone for tribes challenging the National Forest Service’s plans to permit upgrades to Snow Bowl Ski Resort. Six tribes were involved, including the Navajo, Hopi, Havasupai, and Hualapai. The tribes objected on religious grounds to the plans to use reclaimed water. They felt that this risked infecting the tribal members with “ghost sickness” as the water would be from mortuaries and hospitals. They also felt that the reclaimed water would contaminate the plant life used in ceremonies. In August 2008, the Ninth Circuit Court of Appeals rejected their RFRA claim.[17][18]
In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: "...while petitioner's religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest."[19] In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the "mark of the beast" from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.[20]
In Navajo Nation v. United States Forest Service, the Court of Appeals for the Ninth Circuit held that the use of recycled sewage water in order to manufacture artificial snow in the San Francisco Peaks was not a "substantial burden" on the religious freedom of Native Americans.[21]
The RFRA figured prominently in oral arguments in the case, Burwell v. Hobby Lobby, heard by the Supreme Court on March 25, 2014.[22] In a 5-4 decision, Justice Alito declared that nothing about the language of RFRA or the manner in which Congress passed it implied the statutory protections conferred therein were confined solely within the bounds of First Amendment case law as it existed pre-Smith.[23]
20th anniversary[edit]
A day-long symposium was held at the Newseum in Washington, D.C., on Nov. 7, 2013, to commemorate the 20th anniversary of the Religious Freedom Restoration Act. "Restored or Endangered? The State of the Free Exercise of Religion in America" featured three panel discussions and two keynote addresses.
The first keynote address was from Oliver S. Thomas, the former general counsel of the Baptist Joint Committee for Religious Liberty and the chair of the diverse “Coalition for the Free Exercise of Religion” in the 1990s that worked for the passage of RFRA. The second was from Douglas Laycock, who was an author of RFRA. His address traced the legal history of RFRA and discussed its impact on current debates, including the contraception mandate and same-sex marriage laws.
The panel discussions covered the history and impact of RFRA, religious freedom and the contraceptive mandate of the Affordable Care Act, and current and future challenges to the free exercise of religion in a diverse society. The addresses and panel discussions are all available online, as well as a special downloadable resource with more on RFRA, published by the Baptist Joint Committee.[24]
See also[edit]
Freedom of religion in the United States
War on Drugs
Notes and references[edit]
Jump up ^ https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Jump up ^ "1A. What Is the Religious Freedom Restoration Act?". The Volokh Conspiracy.
Jump up ^ "State Religious Freedom Acts". National Conference of State Legislatures.
Jump up ^ Religious Freedom Restoration Act full text at http://www.prop1.org/rainbow/rfra.htm
^ Jump up to: a b c d Utter, Jack (2001). American Indians: Answers to Today’s Questions. University of Oklahoma Press. p. 159. ISBN 0-8061-3309-0.
Jump up ^ Ross, Susan (2004). Deciding communication law: key cases in context. New Jersey: Lawrence Erlbaum Associates. ISBN 0-8058-4698-0. [page needed]
Jump up ^ Waldman, Carl (2009). Atlas of the North American Indian. New York: Checkmark Books. ISBN 978-0-8160-6859-3. [page needed]
Jump up ^ Duthu, Bruce N. (2009). American Indians and the Law. London: Penguin Books. pp. 111–2. ISBN 978-0-14-311478-9.
Jump up ^ Kuhn, Cynthia; Swartzwelder, Scott; Wilson, Wilkie (2008). Buzzed: The straight facts about the most used and abused drugs from alcohol to ecstasy. ISBN 978-0-393-32985-8. [page needed]
^ Jump up to: a b Nussbaum, Martha (2008). Liberty of Conscience: in defense of America's tradition of religious equality. New York: Basic Books. ISBN 978-0-465-05164-9. [page needed]
Jump up ^ 42 U.S. Code § 2000bb–3 Applicability
Jump up ^ Hamilton, Marci (2005). God vs. the gavel: religion and the rule of law. Cambridge, NY: Cambridge University Press. ISBN 978-0-521-85304-0. [page needed]
Jump up ^ Canby, William C. (2004). American Indian Law. St. Paul: West Publishing. p. 344. ISBN 0-314-14640-7.
Jump up ^ When the US Supreme Court, in its judgment of 21 February 2006 on the case Gonzales v . O Centro Espirita Beneficiente Uniao do Vegetal (no. 04-1084 ), held that the sacramental use of hoasca (a tea leaf containing hallucinogen) cannot be inhibited to believers of that confession, it did so under clause general contained in the religious Freedom Restoration Act of 1993, which leaves it to the judge to decide if there is a burden unfairly overloaded by the government on the free exercise of the religion of its citizens: Buonomo, Giampiero (2007). "Riconoscimento della natura religiosa delle associazioni: il caso (negativo, quanto controverso) dei Rosacroce". Diritto&Giustizia edizione online. – via Questia (subscription required)
Jump up ^ Sisk, Gregory (2006). Litigation with the federal government. American Law Institute. ISBN 0-8318-0865-9. [page needed]
^ Jump up to: a b Richardson, James (2004). Regulating religion: case studies from around the globe. New York: Kluwer Academic. ISBN 0-306-47886-2. [page needed]
Jump up ^ 535 F.3d 1058
Jump up ^ RFRA Land Use Challenges After Navajo Nation v. U.S. Parks Service, University of Houston Law Center.
Jump up ^ See Adams v. Commissioner, 110 T.C. 137 (1998), at [1].
Jump up ^ See Miller v. Commissioner, 114 T.C. 511 (2000), at [2].
Jump up ^ Navajo Nation v. United States Forest Service , 535 F.3d 1058 (9th Cir. 2008).
Jump up ^ https://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
Jump up ^ See Burwell v. Hobby Lobby, 114 T.C. 511 (2014), at [3].
Jump up ^ "The Religious Freedom Restoration Act:". Baptist Joint Committee for Religious Liberty.
External links[edit]
Text of the statute
Unconstitutional Restoration - A Princeton Law Journal article on the history, interpretation, and status of the Act.
RFRAs And Public Policy
RFRA history and resources from the Baptist Joint Committee
Baptist Joint Committee page dedicated to Newseum symposium
Retrieved from "https://en.wikipedia.org/w/index.php?title=Religious_Freedom_Restoration_Act&oldid=804226748"
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