18th century illustration of Antoine François Desrues facing torture before his execution in 1777. (National Library of France)

Amendment Eight to the Constitution was ratified on December 15, 1791. It forbids the use of excessive bails or fines in criminal trials, as well as punishments considered to be “cruel and unusual.” The original text is written as such:

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

While the first two segments of the Amendment are generally well-understood, the notion of “cruel and unusual punishments” has been the subject of scrutiny, inquiry, and controversy. Historically, a citizen’s protection from such punishments dates back to the English Bill of Rights in 1689, where they were forbidden to be used. The 1776 Declaration of Rights also forbade it across the Commonwealth of Virginia. In spite of these precedents, the initial version of the Constitution did not forbid “cruel and unusual punishments,” much to the concern of its critics. Abraham Holmes, a representative at the Massachusetts Ratifying Convention, asserted that without a constitutional check on Congress, they might reincorporate humiliating punishments for federal crimes. Patrick Henry argued along the same lines, observing that Congress might use tortuous punishments on the grounds of “strengthening the arm of government.” The Eighth Amendment accordingly eased these concerns by forbidding such punishments, but the way it has been interpreted in modern times has led to more expansive questions regarding what it means for a punishment to be “cruel and unusual.”

The cataloged debates surrounding the nature of “cruel and unusual punishments” identified torture devices such as the rack, gibbets, and thumbscrews. This indicates that the punishments being outlawed by the Eighth Amendment included devices from the time period that had reputations and connotations for being excessive and cruel to the victim. Accordingly, these devices, along with others from around the late-18th century would be illegal to use in modern America. Despite this apparent assertion, many other questions have been raised in response to the application of the Eighth Amendment. One of the more pertinent questions raised regarding the Amendment’s applicability is how the death penalty relates to it. Those who are against capital punishment have argued that it is a relic of the past, and is in of itself a “cruel and unusual” punishment, because the social standards of civility and morality have changed since the era of the Constitution’s creation. Conversely, supporters of the death penalty have argued that since the punishment is legal in several states, and that public polls still reflect substantial support for it, it does not violate the Eighth Amendment. In spite of its brief sentence composition, the Eighth Amendment reflects the changing perspectives of criminal justice from the parameters of the late-18th century to the ambiguous perspectives of modern times.