Criminal Constitution: The Eighth Amendment

January 1, 2021 | By Shane Phelps Law
Criminal Constitution: The Eighth Amendment

Welcome to the fourth installment of our Criminal Constitution Series! This month, we're taking a deep dive into the Eighth Amendment.

Cruel and Unusual

The Eighth Amendment is primarily known for the Cruel and Unusual Punishments Clause. Like many of the amendments to the U.S. Constitution, the language in this clause is vague. In some ways, this is purposeful to give future lawmakers and justices room to interpret the law.

The best way to understand the Eighth Amendment is within its historical context. Before ratifying the Constitution, England adopted a Bill of Rights that contained a clause similar to the Eighth Amendment. This would eventually inspire our own version, but it's important to understand why it was necessary.

History of the Eighth Amendment

When the English Bill of Rights was ratified, punishment for federal crimes, and some minor infractions, were brutal and arguably barbaric. Liars, thieves, and spies would be restrained on a rack and stretched till their joints popped out of their sockets. Murderers would be either publicly dissected or gibbeted – a method of torture that involved hanging criminals in man-shaped chains to rot slowly.

Stocks and pillories were more common and socially acceptable, but the horror and sick fascination with methods like the gibbet or the rack led many to believe that such methods were too horrific to continue. There were also concerns that allowing torture to be used for crimes against the state would inflate the government's power beyond control.

While we don't have gibbets anymore, excessive imprisonment and chemical torture are sometimes considered modern-day equivalents. Some lawmakers and advocates also use the Eighth Amendment to argue against the death penalty.

Weems v. the United States

One of the most significant Eighth Amendment cases in the 20th century involved Paul Weems, a disbursing officer at the Bureau of Coast Guard and Transportation of the U.S. government in the Philippines.

Weems was convicted of fraud and sentenced to 15 years of hard labor in chains, fines, and civil penalties after his time in prison was complete. Weems fought back against these punishments and used the Eighth Amendment as the basis for his claim.

The Supreme Court found that the sentence was indeed cruel and unusual as no other American jurisdiction has ever punished fraud so harshly. Additionally, the court found evidence that the Philippine legislature used the same excessive punishments to others as a show of power.

As a result, the Supreme Court overturned Weems's conviction. One of the most important takeaways is that the Bill of Rights is expandable to address issues that are happening today in addition to referencing wrongdoings in the past.

Cruel and Unusual? It's More Likely Than You Think

While it may seem like the Eighth Amendment is more or less a historical landmark in our legal system, it's important to understand that its application to the prison system today is more common than you might expect.

Prison reform is a never-ending battle for activists, and one of the most important sticking points for them is the death penalty. They argue that hundreds of thousands of inmates across the country are serving life sentences for petty crimes or because of racial discrimination.

According to many advocates and exonerated people, most inmates on death row don't deserve the death penalty. The Innocence Project was founded to combat wrongful convictions and ensure that the only people on death row are the people who have committed unspeakable crimes with undeniable evidence to prove it.


Another crucial Eighth Amendment issue is isolation. Complete and total isolation in solitary confinement is often considered cruel and unusual because of the lasting physical and emotional damage it may cause.

The West Memphis Three were imprisoned for ritual murder in 1993. At this time, America was embroiled in the Satanic Panic – a period of paranoia based on alleged cult violence and satanic practices.

Three young teenagers, Damien Echols, Jason Baldwin, and Jesse Misskelley Jr., were sent to prison for life with ten years of parole. Echols, the assumed leader of the three, was put on death row and kept in solitary confinement for almost the entirety of his incarceration. As a result, he suffers blindness and severe emotional trauma from his time behind bars.

This is a prime example of cruel and unusual punishment. Echols was sentenced to death as a young man and left prison with permanent physical and emotional scars. His case is one of the most significant examples of the importance of the Eighth Amendment.


The Eighth Amendment is one of the most critical and complicated amendments to the U.S. Constitution. The vague language used in the amendment has led many to debate its applications and whether punishments today truly violate the law.

Historians and legal professionals alike will continue to contemplate how the Eighth Amendment is applied to our current justice system. Still, one thing is clear: it's crucial to understand the law within its historical and cultural context to apply it in the real world. Without this context, are we able to apply it at all?

Join us for the next installment of our Criminal Constitution series here on the Atticus Files!