Faculty Journal Articles and Book Chapters


As with many constitutional provisions, the language of the Eighth Amendment is open-ended and vague in its proscription of excessive bail, excessive fines, and cruel and unusual punishments. Because the language of the Constitution does not provide any additional descriptive information concerning what might make bail or fines excessive, or punishments cruel and unusual, courts must look beyond the text itself to ascertain the meaning of the Eighth Amendment. With respect to the prohibition on cruel and unusual punishments, the U.S. Supreme Court has, over the course of several decades, articulated a number of relevant underlying values that offer some guidance in interpreting this Eighth Amendment provision. These values are also helpful in assessing the excessiveness of bail and fines.

This Chapter explores several of these core Eighth Amendment values, providing an overview of their origin and indicating how such values might apply in interpreting the Eighth Amendment in the future. Specifically, this Chapter discusses the principles of dignity, individualized sentencing, proportionality—both absolute and comparative, humanness, non-arbitrariness, and differentness. The Court has explicitly or implicitly invoked each of these values in its Eighth Amendment cases and detailed the scope and importance of these values to varying degrees. For the most part, though, the Court has remained opaque about how much each of these values influences, and should influence, its Eighth Amendment decisions.

Publication Title

The Eighth Amendment and Its Future in a New Age of Punishment

Document Type

Book Chapter

Included in

Law Commons



Digital Object Identifier (DOI)



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.