The Rights of Suspects


The Eighth Amendment says, in full:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Bail is a payment of money that allows a person accused of a crime to be freed pending trial; if you “make bail” in a case and do not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay bail directly, they may instead get a bail bond, which allows them to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, people believed likely to flee or who represent a risk to the community while free may be denied bail and held in jail until their trial takes place.

It is rare for bail to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one “so grossly excessive as to amount to deprivation of property without due process of law” or “grossly disproportional to the gravity of a defendant’s offense.”Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909); United States v. Bajakajian, 524 U.S. 321 (1998). In practice the courts have rarely struck down fines as excessive either.

The most controversial provision of the Eighth Amendment is the ban on “cruel and unusual punishments.” Various torturous forms of execution common in the past—drawing and quartering, burning people alive, and the like—are prohibited by this provision.See, for example, the discussion in Wilkerson v. Utah, 99 U.S. 130 (1879). Recent controversies over lethal injections and firing squads to administer the death penalty suggest the topic is still salient. While the Supreme Court has never established a definitive test for what constitutes a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when to outside observers the punishment might be reasonably seen as disproportionate or excessive.Perhaps the most notorious example, Harmelin v. Michigan, 501 U.S. 957 (1991), upheld a life sentence in a case where the defendant was convicted of possessing just over one pound of cocaine (and no other crime).

In recent years the Supreme Court has issued a series of rulings substantially narrowing the application of the death penalty. As a result, defendants who have mental disabilities may not be executed.Atkins v. Virginia, 536 U.S. 304 (2002). Also, defendants who were under eighteen when they committed an offense that is otherwise subject to the death penalty may not be executed.Roper v. Simmons, 543 U.S. 551 (2005). The court has generally rejected the application of the death penalty to crimes that did not result in the death of another human being, most notably in the case of rape.Kennedy v. Louisiana, 554 U.S. 407 (2008). And, while permitting the death penalty to be applied to murder in some cases, the Supreme Court has generally struck down laws that require the application of the death penalty in certain circumstances. Still, the United States is among ten countries with the most executions worldwide (Figure).

Chart showing the rate of execution in the 10 countries with the highest execution rates. The chart is titled “Rate of Execution in the 10 Countries with the Most Executions, 2007 – 2012”. The chart is divided into three columns, “Country”, “Number of annual executions, on average”, and “Number of annual executions, per capita”. Under the first column “Country” are the values “Iran”, “Saudi Arabia”, “Iraq”, “China”, “Libya”, “Yemen”, “North Korea”, “Pakistan”, “United States”, and “Vietnam”. Under the second column “Number of annual executions, on average” are the values “277.2”, “70.5”, “42.7”, “1720-2400”, “6.5”, “25.3”, “17.5”, “28.5”, “36.7,” and “9.7”. Under the third column “Number of annual executions, per capita” are the values “0.000381%”, “0.000257%”, “0.000157%”, “0.000129-0.000180% (estimate)”, “0.000116%”, “0.000109%”, “0.000073%”, “0.000016%”, “0.000012%”, and “0.000001%”. At the bottom of the chart the source is listed as “Source: Amnesty International, “Death Penalty Statistics, Country by Country.” 2012”.
The United States has the ninth highest per capita rate of execution in the world.

At the same time, however, it appears that the public mood may have shifted somewhat against the death penalty, perhaps due in part to an overall decline in violent crime. The reexamination of past cases through DNA evidence has revealed dozens in which people were wrongfully executed.Elizabeth Lopatto, “How Many Innocent People Are Sentenced To Death?,” Forbes, 29 April 2014. (March 1, 2016). For example, Claude Jones was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his; however, with better DNA testing technology, it was later found to be that of the victim.Dave Mann, “DNA Tests Undermine Evidence in Texas Execution: New Results Show Claude Jones was Put to Death on Flawed Evidence,” Texas Observer, 11 November 2010. (March 4, 2016). Perhaps as a result of this and other cases, seven additional states have abolished capital punishment since 2007. As of 2015, nineteen states and the District of Columbia no longer apply the death penalty in new cases, and several other states do not carry out executions despite sentencing people to death.See, for example, “States With and Without the Death Penalty,” Death Penalty Information Center, (March 4, 2016). It remains to be seen whether this gradual trend toward the elimination of the death penalty by the states will continue, or whether the Supreme Court will eventually decide to follow former Justice Harry Blackmun’s decision to “no longer… tinker with the machinery of death” and abolish it completely.