(Episode 26) Kiss My Assets: The 8th Amendment, Part 1 of 2

The Eighth Amendment to the Constitution reads:

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

When people think of the Eighth Amendment, they typically think of the last part regarding "cruel and unusual punishments." That's certainly important - so important that we're devoting the entire next episode to it - but in this episode, we wanted to focus on the oft-forgotten parts about bail and fines.  Because, in the immortal words of The Notorious B.I.G., "the more money we come across, the more problems we see."

As with so many other rights memorialized in the Bill of Rights, the rights against excessive bail and fines goes back to the English Bill of Rights (1689). Some judges used to set bail high in order to avoid releasing defendants on writs of habeas corpus.  Likewise, they used to levy fines against the king's enemies, fines that were so high they couldn't be paid--and nonpayment gave the crown a basis to jail those enemies. We hope it's obvious why the Founders wanted to prevent these abuses of power.

Are you entitled to bail? Depends on where you live and how serious the offense is.  Has the entire Eighth Amendment been applied to the States? It's not entirely clear. And in keeping with the lack of crystal clarity, the standard for whether something is "excessive" within the meaning of the Eighth is a bit murky. For bail, SCOTUS asks whether the amount is "a figure higher than is reasonably calculated" to ensure that the defendant will show up to court. For fines, SCOTUS asks whether the fine is "grossly disproportional to the gravity of a defendant's offence" (like charging a $357,144 civil forfeiture penalty for failing to fill out a form). 

Join us while we talk about money - posting it (as bail), paying it (in fines), and when SCOTUS has effectively told the government it can kiss our assets.

Some other good sources, by category: