The Eighth Amendment

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

–The Bill of Rights’ Eighth Amendment


We are not doing at all well on this one. Three recent articles address the issues. The Bail Trap in the magazine section of the New York Times on August 16, 2015 says, “Every year, thousands of innocent people are sent to jail only because they can’t afford to post bail, putting them at risk of losing their jobs, custody of their children–even their lives.”  

NPR posted an article entitled In Ferguson, Court Fines and Fees Fuel Anger; the article explains people’s outrage in response to the city’s use of fines. 

On September 9th the New York Times published an article called Solitary Confinement is Cruel and All Too Common. Its first paragraph says,

“If mass incarceration is one of modern America’s deepest pathologies, solitary confinement is the concentrated version of it: far too many people locked up for too long for no good reason at no clear benefit to anyone.”

Justice Anthony Kennedy says that solitary confinement “drives people mad.”

The problem is far larger than excessive bail, fines and 80,000 people in solitary confinement.  People are sentenced for decades for drug offenses, devastating lives and whole communities; drug use is still a criminal issue and not a public health problem; disproportionate numbers of people of color languish on Death Row; many people on Death Row are innocent; children are incarcerated, treated as adults, put in solitary confinement and given life sentences. All of this horror says as much about our divisive politics of fear and the finger-pointing culture we live in as it does about the millions of people snarled in the system. This situation says that millions of impoverished, often mentally ill people and people of color simply do not count. We talk long about criminals paying the price, but we are failing to look at our thirst for punishment, our long and sordid history of racism or the situations and policies that set people up to fail. We are far too eager to see people behind bars as totally bad and not fully human. Using the right language is useful. The American culture has deep pathologies. I wish we had a national integrity and paid as much attention to the 8th Amendment as we do to the freedoms of speech and religion. I try to maintain hope, and the fact that California is addressing these ugly conditions is encouraging.