The Eighth Amendment

The next in my Bill of Rights series is the Eighth Amendment. I have reproduced it below.

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

This one is short and self-explanatory, so I don’t have a lot to say about it. It is intended to serve as protection in the event:

Someone is arrested, conditions for release prior to the commencement of a trial must not be “excessive”
someone is convicted of a crime, any fine or punishment must not be “cruel or unusual”
I might suggest that any restrictions on a person’s freedoms, prior to them being convicted of a crime, is excessive, but I will concede that it is a method by which to compel an individual to appear at a trial for which they may be convicted. This conflict is why this statement was included in the amendment, to prevent this method’s abuse.

I will also argue that the term excessive, for fines or punishments, is vague and ill-defined. What would constitute an excessive fine? I would suggest any fine or punishment that exceeds the amount required to compensate the victim for their losses as a result of the crime and the costs associated with seeking justice. Anything more would constitute additional aggression of one person against another.

For example, if you steal my property, I am entitled to recover that property from you, along with enough funds to compensate me for my expenses in retrieving that property and restoring it to its original condition. Anything more would constitute me then stealing property from you.

Finally, what constitutes “cruel and unusual” for a punishment? I think many jail sentences are cruel, given the “crime” they are intended to punish. Although we don’t consider them unusual, because they are carried out all the time. For example, shouldn’t confining people to buildings filled with other people likely to harm them be considered a cruel punishment for something as mundane as possessing plant material? But we do it all the time under the guise of the drug war, because at this point it’s not unusual.

In general, I like this amendment, but it needs to be more clearly defined, so we can hold ourselves to its original intent.