The Constitution of the United States of America: Analysis and Interpretation Part 168

AMENDMENT 8

BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME

Page Excessive bail 903 Excessive fines 904 Cruel and unusual punishments 904

PUNISHMENT FOR CRIME

Amendment 8

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

When the Bill of Rights was being debated in Congress, two members took exception to this proposal. One "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[1]

Another leveled a similar criticism at the entire amendment; "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[2]

Excessive Bail

A United States District Court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the Smith Act[3] at $50,000 each. This was on the theory advanced by the Government that each pet.i.tioner was a p.a.w.n in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. The Court held that bail set before trial at a figure higher than reasonably calculated to a.s.sure the presence of defendant at his trial is "excessive" in the sense of the Eighth Amendment, and that the case of each defendant must be determined on its merits. Bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[4] But the power of the Attorney General, under -- 23 of the Internal Security Act of 1950,[5] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, is not unconst.i.tutional.[6]

Excessive Fines

The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[7]

In a dissenting opinion in United States ex rel. Milwaukee Publis.h.i.+ng Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-cla.s.s mailing privilege had been denied const.i.tuted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the Const.i.tution.[9]

Cruel and Unusual Punishments

The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson _v._ Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the const.i.tutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Const.i.tution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual.

A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil _v._ Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No const.i.tutional infirmity was discovered in a measure punis.h.i.+ng as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15]

Notes

[1] 1 Annals of Congress 754 (1791).

[2] Ibid.

[3] 18 U.S.C. ---- 371, 2385.

[4] Stack _v._ Boyle, 342 U.S. 1 (1951).

[5] 8 U.S.C.A. -- 156 (a) (1); 64 Stat. 1011.

[6] Carlson _v._ Landon, 342 U.S. 524 (1952).

[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).

[8] 255 U.S. 407 (1921).

[9] Ibid. 435.

[10] 99 U.S. 130 (1879).

[11] Ibid. 135.

[12] 144 U.S. 323 (1892).

[13] Ibid. 339, 340.

[14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910).

[15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson _v._ Read Magazine, 333 U.S. 178, 191 (1948).

AMENDMENT 9

RIGHTS RETAINED BY THE PEOPLE

Amendment 9

The enumeration in the Const.i.tution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of _dictum_ in United Public Workers _v._ Mitch.e.l.l, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the compet.i.tion of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3]

Notes

[1] 330 U.S. 75, 94 (1947).

[2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144 (1939).

[3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan a.s.so. _v._ Topeka, 20 Wall.

655, 662-663 (1874).