Eighth Amendment: No excessive bail or fines; no cruel and unusual punishment

The text

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

Text: National Archives transcription of the amendments in their original form (spelling and punctuation as in the original).

What it means

• Courts may not set bail or fines that are excessive.
• The government may not inflict cruel and unusual punishments. The Court judges this by "evolving standards of decency" and has used it to limit the death penalty, for example for juveniles and for people with intellectual disabilities.

Who proposed it

James Madison of Virginia introduced the proposals in the House of Representatives on June 8, 1789. He drew on state declarations of rights, especially George Mason's Virginia Declaration of Rights (1776), and on the amendments the state ratifying conventions had recommended. The House approved 17 amendments; the Senate cut and combined them to 12, and Congress sent those 12 to the states on September 25, 1789.

When it was proposed and ratified

• Proposed by Congress: September 25, 1789. Congress approved the 12-article joint resolution (House September 24, Senate September 25, 1789).
• Ratified: December 15, 1791. Virginia became the 11th of the 14 states to ratify, completing ratification of Articles 3–12 of the 1789 resolution (Amendments 1–10).

Amendments are not signed into law. Congress proposes them by a two-thirds vote of both houses, and they become part of the Constitution when three-fourths of the states ratify. The President has no formal role (Article V).

Why it was made

The Constitution of 1787 had no bill of rights. Anti-Federalists such as George Mason, who refused to sign it partly for this reason, warned that a strong national government could trample individual liberties. Several states ratified only after recommending amendments, and Federalists promised to add them. Madison kept that promise in the First Congress. The amendments limited only the federal government until the Supreme Court began applying most of them to the states through the Fourteenth Amendment (selective incorporation).

Its words come almost directly from the English Bill of Rights (1689) and George Mason's Virginia Declaration of Rights (1776), which said excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The amendment and its cases

The Supreme Court cases (and, where noted, the events) that defined what this amendment means.

Incorporation: the Bill of Rights first limited only the federal government (Barron v. Baltimore, 1833). After the 14th Amendment (1868), the Supreme Court used its Due Process Clause to apply most of the rights to the states, one case at a time. Cases marked Incorporation are the ones that applied this amendment to the states.

• Robinson v. California (1962) Incorporation: The ban on cruel and unusual punishment applies to the states.
• Furman v. Georgia (1972): Death penalty laws as then applied were arbitrary; executions paused nationwide.
• Gregg v. Georgia (1976): The death penalty is constitutional with guided sentencing procedures.
• Atkins v. Virginia (2002): No execution of people with intellectual disabilities.
• Roper v. Simmons (2005): No execution for crimes committed before age 18.
• Timbs v. Indiana (2019) Incorporation: The Excessive Fines Clause applies to the states.

See also: Key Clauses of the Constitution.

FCLE tips

• Three protections: bail, fines, punishment.

Related study guide sections

• Chapter 6: Amendment 8
• Chapter 6: The Bill of Rights overview
• All 27 amendments