Amendment Eight: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The eighth amendment shifts perspective back to the criminal side of the justice system. It’s a pretty clear-cut resolution that establishes the bail system, by which a prisoner can be released pending sentencing by putting down a deposit to guarantee their return for trial, and states that any fines or punishments levied should not be excessive. The intent is clear and it all seems simple enough, right?
Cut to a couple hundred years later, when the capitalist system has really taken off and the other amendments, as we’ve discussed, have had their way with the justice system and a few unforeseen issues arise.
First, while there are limitations on bail, they’re set at pretty standard levels, backed up by decades of precedent which, as has previously been discussed, we as Americans are loathe to go against, even when reason clearly says we should. What it comes down to, as with so many other issues with the justice system, is socioeconomic inequality.
Say two men are arrested for urinating on a public building. The first man works a full-time minimum wage job. After taxes, which he pays in full because he can’t afford an accountant and has no investments, he takes home about $13,000 a year. The second man, who comes from a wealthy background and does not work, but instead derives his income from a trust which earns him, conservatively, about one million dollars a year, taxed at the same rate as the man who makes minimum wage, ends up with about $850,000 in the bank.
At arraignment, the first man, who cannot afford a lawyer, is assigned an overburdened public defender who gets him a standard bail of $5,000. The second man, who has a private attorney, will likely be released on his own recognizance by a judge as harried as the first man’s counsel, on the basis that he is a wealthy and influential citizen with strong ties to the community and, thereby, not a flight risk for so paltry a charge. But, for the sake of argument, let’s say he got the same bail agreement.
A bail bondsman typically charges ten percent of the bail, or $500, to post. That would, for the first man, be the equivalent of about seventy hours of work, or an entire paycheck. For the second, it would be just under an hour and a half’s worth of his income. What’s more, if the first man is unable to post his bail, he will spend his time in jail, waiting for trial, which can take, on average, about a year to get a court date, losing his job, anyway, and being unable to provide for anyone depending upon him. The second man would continue to draw interest, even in jail, and be wealthier when he came out than when he went in, as the state would have paid his living costs for the year.
What’s more, the first man is far more likely to be convicted, or strike a deal, and still have to pay a fine of anywhere from $500-1000 which, as we’ve shown, is a substantial portion of his income, while the second, even if levied with the same fine, could pay it without suffering much financial inconvenience. Anyone seeing the problem yet?
The entire point of the first clause was to create a system that made it so that everyone got a fair shake. The problem, however, is that, while it looks good on paper, its implementation is problematic and, as with much of the system, drastically skewed to favor the wealthier citizens. The way the system has evolved, the bails and fines, when forced upon the country’s poor, clearly violate the tenet prohibiting them being excessive.
The second clause suffers from the same problem; it’s much too generalized. While in the first, the implementation doesn’t take into account the impact of standardized fines on the wealthy versus the poor, the second clause doesn’t clearly state what should be considered cruel and unusual punishment, the meaning of which has evolved, over time, into something very different than once it did.
For instance, in the 1950s, it was not uncommon to see prisoners doing public works projects. They would rise early in the morning, have breakfast, work an eight hour day, with a break for lunch, then head back to spend the evening, after dinner, watching a movie once a week or socializing with other prisoners in a free period prior to bed. That was prison life. While it was as brutal then as now, something to be expected when putting a number of violent people in a confined space for a long period, it was punishment.
These days, prisoners have sued, and won, because they were denied the right to cable television or pornographic magazines, on the basis that they were being denied their rights. The same for extra pudding in the cafeteria. These are real cases, brought to court and decided in the favor of the prisoners because of that second clause. An honest day’s work, three squares and a bed, something for which a lot of Americans would be thankful these days, have become cruel and unusual. There’s something really wrong there.
Taking it a step further, and addressing again the social inequality, we’ve created white collar prisons, separate from those to which we send the violent offenders, for those criminals who have committed non-violent crimes, usually things like embezzlement or financial fraud. While unable to leave, these offenders are given a great deal of freedom within the prison and are, as whole, generally given a nicer lifestyle. This is justified by the second clause of the eighth, because they shouldn’t be put in with the general population, as they did not commit harm to others.
Well, okay, they didn’t do it directly, but tell that to anyone who lost everything in their retirement plans to a Ponzi scheme (that’s where those guys go, for a few years) or to an embezzling accountant (them, too). What’s more, the people they robbed rarely get back anything, as we’ve created a tax system that allows them to hide the money and a justice system that won’t let us use the force of the law to make them give it back. I say we let them spend some time in a real prison and see how quickly they’re willing to fork over the cash after a couple of nights with their new cellmate, Tiny.
The intent of the law is wonderful. When it comes to this one, the founding fathers didn’t drop the ball. We have. Big time. Financial burdens should hurt the rich as much as they hurt the poor and prisons should be the same for everyone. Period. End of story.
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