The Public Policy

The Ignored Amendment

Cruel and unusual punishments and fines come into their own.

By 8.29.07

Send to Kindle

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," states the Eighth Amendment to the U.S. Constitution.

Jessica Hodges would almost certainly say that we're no longer paying much attention to the prohibition on excessive fines.

Washington Post writer Jonathan Mummolo describes her case: "The labor pains were coming, so Jessica Hodges got going. The 26-year-old bank teller from Burke, Virginia, sped toward Inova Fairfax Hospital, but before she got there, the law got her --- 57 mph in a 35 zone. Reckless driving."

Hodges was found guilty and fined $1,050, plus a judge-imposed $100 fine and court costs. "It's crazy," said an unrepentant Hodges. "Having a baby's more important. Of course I'm going to speed."

In a world with more common sense, the cops would have provided a police escort to the hospital, rather than ticket.

Hodges won't have an easy time paying the bill, as Mummolo describes: "She and her husband, Jeff, a massage therapist, barely go out and are living basically week-to-week to support 17-month-old Madison and infant Alessandra, born July 19. If the appeal is denied, her husband will probably have to work overtime."

If Hodges and her husband end up buying a few six packs because of the three jobs and two babies, 44 percent of the cost of their beer in Virginia will be due to hidden and direct taxes.

The newly increased traffic fines, ranging from $750 to $3,000, were passed earlier this year by Virginia's General Assembly as part of a package to pay for a slew of new transportation projects.

"I'm getting out of here," said Hodges, "before I have to pay for any new roads."

More "excessive" in terms of fines, the penalties for sexual harassment in the workplace under the Civil Rights Act of 1991 include punitive damages of up to $300,000 per incident, i.e., per "unwelcome" joke, flirtation, etc. (Sen. Ted Kennedy wanted the price to be $1 million per incident.)

The $300,000 potential tab per incident can be triggered by an alleged victim's perception of having been subjected to unwanted speech, jokes, gestures, romantic pursuits, looks, attitudes, etc., or by a perception of having been subjected to condescension, defamation or exclusion.

"If traffic laws were modeled on harassment policies," writes Reason magazine columnist Cathy Young, referring to the inherently subjective and changing nature of perceptions regarding what is unwelcome and objectionable, "there would be no stop signs --- you could just be fined for failing to stop when someone thought you should have."

With six jokes and two unwanted glances worth a potential $2.4 million, the legal maneuver to get fines to the "excessive" level is to keep a diary and document each incident, rather than reporting the problem for a quicker and less litigious solution.

Under the rules, businesses and other organizations can be held liable even when they aren't aware that a problem exists.

Equally "excessive," the Federal Communications Commission's maximum fine for indecency just went up tenfold, to $325,000 per incident. The new rules authorize the FCC to fine a broadcaster as much as $3 million per day for multiple instances of alleged indecency.

With the section of the Eighth Amendment prohibiting "cruel and unusual punishments," William James Rummel might well say that we've lost our way.

Rummel was sentenced to life imprisonment in Texas (with eligibility for parole in 12 years, but with no guarantee of parole) for three nonviolent and minor offenses -- the fraudulent use of a credit card to obtain $80 worth of goods and services in 1964, passing a forged check in the amount of $28.36 in 1969, and obtaining $120.75 by false pretenses in 1973.

Citing precedent, i.e., itself, the Supreme Court rejected Rummel's argument that his life sentence was a violation of the constitutional ban on "cruel and unusual punishments" by pointing to a 1912 case, Graham v. West Virginia, in which the Supreme Court rejected an Eighth Amendment claim from a horse thief who had been sentenced to life imprisonment after stealing three horses --- one horse at a time, in 1898, 1901 and 1907.

In 1958, Chief Justice Earl Warren stated that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

The evolution is slow. It wasn't until 2002 that the Supreme Court ruled, 6-3, that executions of mentally retarded criminals are "cruel and unusual punishments," a violation of the Eighth Amendment.

Ralph R. Reiland is an associate professor of economics at Robert Morris University in Pittsburgh.

Like this Article

Print this Article

Print Article
About the Author
Ralph R. Reiland is the B. Kenneth Simon professor of free enterprise and an associate professor of economics at Robert Morris University in Pittsburgh.