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The e-Advocate Quarterly Magazine Leviticus 24:17-20

The Eighth Amendment Project

“Helping Individuals, Organizations & Communities Achieve Their Full Potential”

Vol. III, Issue XI – Q-3 July| August| September 2017

The Advocacy Foundation

The Eighth Amendment Project Cruel and Unusual Punishment In America

“Helping Individuals, Organizations & Communities Achieve Their Full Potential

1735 Market Street, Suite 3750 Philadelphia, PA 19102

| 100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303

John C Johnson III, Esq. Executive Director ______

(855) ADVOC8.0 (855) 238-6280 § (215) 486-2120

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Table of Contents The Eighth Amendment Project ______


The US Constitution a.

Eighth Amendment


Excessive Fines


Excessive Bail/ Excessive Jail Time


Cruel and Unusual Punishment


Capital Punishment (The Death Penalty) a. b. c.

In Perspective Public Opinion Juvenile Offenders




Landmark Cases a.



Rummel v. Estelle, 445 US 263 (1980) Lockyer v. Andrade, 538 US 63 (2003)

Excessive Fines i. ii.


Louisiana ex rel. Francis v. Resweber, 329 US (1947) Robinson v. California, 370 U.S. 660 (1962)

Three Strikes Laws i. ii.


Weems v. US, 217 US 349 (1910) Furman v. Georgia, 408 US 238 (1972)

Application to the States i. ii.


Human Rights Controversy Wrongful Execution Christianity

Generally i. ii.


d. e. f.

Waters-Pierce Oil Co. v. Texas, 212 US 86 (1909) US v. Bajakajian, 542 US 321 (1998)

Excessive Bail i. ii.

US v. Salerno, 481 US 739 (1987) Stack v. Boyle, 342 US 1 (1951)


Harmelin v. Michigan, 501 US 957 (1991)


The Death Penalty (Capital Punishment) i. ii. iii.

Corker v. Georgia, 433 US 584 (1977) Kennedy v. Louisiana, 554 US 407 (2008) Woodson v. North Carolina, 428 US 280 (1976)

Copyright Š 2014 The Advocacy Foundation, Inc. All Rights Reserved.

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Biblical Authority ______

Leviticus, 24: 17-20 (1919) And he that smiteth any man mortally shall surely be put to death. . . . And if a man maim his neighbor; as he hath done, so shall it be done to him: breach for breach, eye for eye, tooth for tooth; as he hath maimed a man, so shall it be rendered unto him.

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The US Constitution ______

The Eighth Amendment to the United States Constitution provides: “Excessive

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

Background and Perspective This amendment prohibits excessive fines and bail, as well as cruel and unusual punishments. Now to the question: What exactly constitutes: 1. An Excessive Fine; 2. Excessive Bail; 3. Cruel and Unusual Punishment. The phrase “cruel and unusual punishments” first appeared in the English Bill of Rights. In colonial America, the British often employed branding, whipping, public humiliation and extremely long prison sentences for minor offenses.

The Founders believed that justice requires that even those people found guilty of crimes be protected from this kind of treatment. James Wilson lectured on justice and punishments, saying in 1791: “A nation [that tolerates] cruel punishments becomes dastardly and contemptible. For in nations, as well as individuals, cruelty is always attended by cowardice.”

Wilson argued that punishments should be swift, certain, and moderate in order to be effective and prevent further crime.

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Several of the concepts used in this amendment, as well as a considerable number of its most significant words and phrases, date back to the Bill of Rights passed in England in 1689. This has come about after the case of Titus Oates, whose lies under oath had led to the execution of a number of innocent people. Oates was sentenced to whipping and the pillory, rather than to death, because it was thought that executing him would make honest people fear to give evidence in court. The phrase “cruel and unusual punishment” was first used in America in 1776, in Virginia’s Declaration of Rights. When the United States Constitution was ratified in 1788, it was recommended by the Virginia convention that the same language should be incorporated into the U.S. document. Patrick Henry and George Mason, among other Virginians, intended that the restriction should also bind Congress, since otherwise, that body could simply inflict cruel punishments rather than them being imposed by the courts. Their other main line of argument was that, without a provision of this sort, Congress might replace the common law which the U.S. had largely inherited from Britain, and replace it with civil law of the type practiced in countries such as Spain and France. Henry, in particular, was anxious to show that the ancestors Americans should revere would not have allowed torture and barbarity to exist in their lands. The controversy over the issue was substantial, but the 8th Amendment went before Congress in 1789 and was adopted two years later.

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Excessive Fines ______ In Waters-Pierce Oil Co. v. Texas, 212 US 86 (1909), the Supreme Court held that excessive fines are those which are “so grossly excessive as to amount to a deprivation of property without due process of law.” The standard set up is that a fine must not be “so grossly excessive as to amount to deprivation of property without due process of law.” In other words, the government must not be able to confiscate such a large amount of property without following an established set of rules created by the legislature.

The Court wrote in its syllabus: „The fixing of punishment for crime and penalties for unlawful acts is within the police power of the state, and this Court cannot interfere with state legislation in fixing fines, or judicial action in imposing them, unless so grossly excessive as to amount to deprivation of property without due process of law. Where a state antitrust law fixed penalties at $5,000 a day, and, after verdict of guilty for over 300 days, a defendant corporation was fined over $1,600,000, this Court will not hold that the fine is so excessive as to amount to deprivation of property without due process of law where it appears that the business was extensive and profitable during the period of violation, and that the corporation has over $40,000,000 of assets and has declared dividends amounting to several hundred percent”.

The Court further stated in its opinion: [I]t is contended that the fines imposed are so excessive as to constitute a taking of the defendant‟s property without due process of law. It is not contended in this connection that the prohibition of the Eighth Amendment to the federal Constitution against excessive fines operates to control the legislation of the states. The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law.

In United States v. Bajakajian, 524 US 321 (1998), the Supreme Court ruled that it was unconstitutional to take $357,144 from a person who failed to report his taking of more than $10,000 in US currency out of the United States. In what was the first case in which the Supreme Court ruled a fine to violate the Excessive Fines Clause, the Court held that it was “grossly disproportional” to take all of the money which Mr. Bajakajian attempted to take out of the United States, in violation of a federal law that required him to report an amount in excess of $10,000. In describing what constituted “gross disproportionality,” the Court could not find any guidance from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment Clause case law: We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining Page 8 of 23

the types and limits of punishments for crimes”); see also Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, … these are peculiarly questions of legislative policy”). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).

Thus the Court declared that, within the context of judicial deference to the legislature’s power to set punishments, a fine would not offend the Eighth Amendment unless it was “grossly disproportional to the gravity of a defendant’s offense.”

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Excessive Bail ______

Historical Perspective In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and nonbailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required." Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses. In the United States [Similarly], the Eighth Amendment [in the US Constitution] has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted "preventive" detention without bail. In United States v. Salerno, 481 US 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil." In Stack v. Boyle, 342 US 1 (1951), the Supreme Court declared that a bail amount is "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.

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Excessive Jail Time ______ Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, 463 US 277 (1983), that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." The Court held that in the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual. However, in Harmelin v. Michigan, 501 US 957 (1991), a fractured Court retreated from the Solem test and held that for non-capital sentences, the Eighth Amendment only constrains the length of prison terms by a "gross disproportionality principle." Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 672 grams (1.5 pounds) or more of cocaine. The Court acknowledged that a punishment could be cruel but not unusual, and therefore not prohibited by the Constitution. Additionally, in Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said "the Eighth Amendment contains no proportionality guarantee," and that "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia wrote "If 'cruel and unusual punishments' included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous." Moreover, "There is little doubt that those who framed, proposed, and ratified the Bill of Rights were aware of such provisions [outlawing disproportional punishments], yet chose not to replicate them." In Graham v. Florida, 560 US 48 (2010), the Supreme Court declared that a life sentence without any chance of parole, for a crime other than murder, is cruel and unusual punishment for a minor. Two years later, in Miller v. Alabama, 567 US ___ (2012), the Court went further, holding that mandatory life sentences without parole cannot be imposed on minors, even for homicide.

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Cruel and Unusual Punishment1 ______

Under the terms of the 8th Amendment, as interpreted by the United States Supreme Court, certain punishments are considered barbaric by definition and are therefore prohibited in all circumstances. These include disembowelment and burning alive. In the 21st century, the Supreme Court has extended this prohibition to cover the execution of those below 18 years of age and of those who suffer from a mental handicap. These more recent extensions were the subject of bitter debate and proved highly controversial. The Supreme Court has also ruled that other punishments should be considered cruel and unusual under specific circumstances. In particular, the Court has said that a principle of proportionality must be adhered to. The 1958 case of Trop vs. Dulles established that the removal of a person’s U.S. citizenship was unconstitutional, on the grounds that it meant that person’s “total destruction” as a member of society. In 1972, also, Furman vs. Georgia effectively outlawed the use of capital punishment in the U.S., although Gregg vs. Georgia four years later allowed executions to resume. Another significant ruling regarding the reach of the 8th Amendment came in 1977, when in the case of Coker vs. Georgia, the Supreme Court found that it was unconstitutional – on the grounds of a lack of proportionality – for those found guilty of the crime of rape, where the victim was not killed, to be sentenced to death.2 The minority in this case delivered a furious dissenting opinion, branding the majority “myopic” in that they had failed to take account of the broad sweep of American legal history, rather than simply looking at cases from the previous few years. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied against the federal government.

The test for determining whether a particular punishment is cruel and unusual is:    

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture. "A severe punishment that is obviously inflicted in wholly arbitrary fashion." "A severe punishment that is clearly and totally rejected throughout society." "A severe punishment that is patently unnecessary."


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Capital Punishment The Death Penalty ______

In Perspective Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual enforcement is an execution. Crimes that can result in a death penalty are known as capital crimes or capital offenses. The term capital originates from the Latin capitalis, literally "regarding the head" (referring to execution by beheading). Capital punishment has, in the past, been practiced by most societies, as a punishment for criminals, and political or religious dissidents. Historically, the carrying out of the death sentence was often accompanied by torture, and executions were most often public. Currently 58 nations actively practice capital punishment, 98 countries have abolished it de jure for all crimes, 7 have abolished it for ordinary crimes only (maintain it for special circumstances such as war crimes), and 35 have abolished it de facto (have not used it for at least ten years and/or are under moratorium). Amnesty International considers most countries abolitionist; overall, the organization considers 140 countries to be abolitionist in law or practice. About 90% of all executions in the world take place in Asia. Nearly all countries in the world prohibit the execution of individuals who were under the age of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried out such executions. Executions of this kind are prohibited under international law. Capital punishment is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or cultural region. In the European Union member states, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. The Council of Europe, which has 47 member states, also prohibits the use of the death penalty by its members. The United Nations General Assembly has adopted, in 2007, 2008 and 2010, non-binding resolutions calling for a global moratorium on executions, with a view to eventual abolition. Although many nations have abolished capital punishment, over 60% of the world's population live in countries where executions take place, such as the People's Republic of China, India, the United States of America and Indonesia, the four most-populous countries in the world, which continue to apply the death penalty (although in India, Indonesia and in many US states it is rarely employed). Each of these four nations voted against the General Assembly resolutions.

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Public Opinion The public opinion on the death penalty varies considerably by country and by the crime in question, but in most countries a majority favors its use for murder, even despite the evidence against its power as a deterrent. Some exceptions include New Zealand, where 55 percent of the population oppose its use, Australia where only 23 percent support the death penalty, and Norway where only 25 percent are in favor. Most French, Finns and Italians also oppose the death penalty. Death penalty Practices by Country3




Number executed in 2012[69]


People's Republic of China

4,000+Officially not released.








Saudi Arabia



United States













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Number executed in 2012[69]





North Korea






Palestinian Authority



Republic of China (Taiwan)



South Sudan


















United Arab Emirates


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Juvenile Offenders4 The death penalty for juvenile offenders (criminals aged under 18 years at the time of their crime) has become increasingly rare. Considering the Age of Majority is still not 18 in some countries, since 1990 nine countries have executed offenders who were juveniles at the time of their crimes: The People's Republic of China (PRC), Democratic Republic of the Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, the United States (see List of juvenile offenders executed in the United States), and Yemen. The PRC, Pakistan, the United States, Yemen and Iran have since risen the minimum age to 18. Amnesty International has recorded 61 verified executions since then, in several countries, of both juveniles and adults who had been convicted of committing their offenses as juveniles. The PRC does not allow for the execution of those under 18, but child executions have reportedly taken place. Starting in 1642 within British America, an estimated 365 juvenile offenders were executed by the states and federal government of the United States. The United States Supreme Court abolished capital punishment for offenders under the age of 16 in Thompson v. Oklahoma (1988), and for all juveniles in Roper v. Simmons (2005). In addition, in 2002, the United States Supreme Court declared unconstitutional the execution of individuals with an intellectual disability, in Atkins v. Virginia. Between 2005 and May 2008, Iran, Pakistan, Saudi Arabia, Sudan and Yemen were reported to have executed child offenders, the most being from Iran.[91] The United Nations Convention on the Rights of the Child, which forbids capital punishment for juveniles under article 37(a), has been signed by all countries and ratified, except for Somalia and the United States (notwithstanding the latter's Supreme Court decisions abolishing the practice). The UN Sub-Commission on the Promotion and Protection of Human Rights maintains that the death penalty for juveniles has become contrary to a juscogens of customary international law. A majority of countries are also party to the U.N. International Covenant on Civil and Political Rights (whose Article 6.5 also states that "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age..."). In Japan, the minimum age for the death penalty is 18 as mandated by the internationals standards. But under Japanese law, anyone under 20 is considered a juvenile. There are three men currently on death row for crimes they committed at age 18 or 19. Human Rights Controversy There are many organizations worldwide, such as Amnesty International, and country-specific, such as the American Civil Liberties Union (ACLU), that have abolition of the death penalty as a fundamental purpose. Advocates of the death penalty argue that it deters crime, is a good tool for police and prosecutors (in plea bargaining for example), makes sure that convicted criminals do not offend 4

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again and is a just penalty for atrocious crimes such as child murders, serial killers or torture murderers. Opponents of capital punishment argue that not all people affected by murder desire a death penalty, that execution discriminates against minorities and the poor, and that it encourages a "culture of violence" and that it violates human rights. Abolitionists believe capital punishment is the worst violation of human rights, because the right to life is the most important, and judicial execution violates it without necessity and inflicts to the condemned a psychological torture. Albert Camus wrote in a 1956 book called Reflections on the Guillotine, Resistance, Rebellion & Death: An execution is not simply death. It is just as different from the privation of life as a concentration camp is from prison. [...] For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life. In the classic doctrine of natural rights as expounded by for instance Locke and Blackstone, on the other hand, it is an important idea that the right to life can be forfeited. Wrongful Execution It is frequently argued that capital punishment leads to miscarriage of justice through the wrongful execution of innocent persons. Many people have been proclaimed innocent victims of the death penalty. Some have claimed that as many as 39 executions have been carried out in the face of compelling evidence of innocence or serious doubt about guilt from in the US from 1992 through 2004. Newly available DNA evidence prevented the pending execution of more than 15 death row inmates during the same period in the US, but DNA evidence is only available in a fraction of capital cases. However, since the death penalty reinstatement in the United States during the 1970s, no inmate executed has been granted posthumous pardon. Also improper procedure may result in unfair executions. For example, Amnesty International argues that in Singapore "the Misuse of Drugs Act contains a series of presumptions which shift the burden of proof from the prosecution to the accused. This conflicts with the universally guaranteed right to be presumed innocent until proven guilty". This refers to a situation when someone is being caught with drugs. In this situation, in almost any jurisdiction, the prosecution has a prima facie case. Christianity Views on the death penalty in Christianity run a spectrum of opinions, from complete condemnation of the punishment, seeing it as a form of revenge and as contrary to Christ's message of forgiveness, to enthusiastic support based primarily on Old Testament law.

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Among the teachings of Jesus Christ in the Gospel of Luke and the Gospel of Matthew, the message to his followers that one should "Turn the other cheek" and his example in the story Pericope Adulterae, in which Jesus intervenes in the stoning of an adulteress, are generally accepted as his condemnation of physical retaliation (though most scholars agree that the latter passage was "certainly not part of the original text of St John's Gospel") More militant Christians consider Romans13:3–4 to support the death penalty. Many Christians have believed that Jesus' doctrine of peace speaks only to personal ethics and is distinct from civil government's duty to punish crime. In the Old Testament, Leviticus Leviticus 20:2–27 provides a list of transgressions in which execution is recommended. Christian positions on these passages vary. The sixth commandment (fifth in the Roman Catholic and Lutheran churches) is translated as "Thou shalt not kill" by some denominations and as "Thou shalt not murder" by others. As some denominations do not have a hard-line stance on the subject, Christians of such denominations are free to make a personal decision. Eastern Orthodox Christianity does not officially condemn or endorse capital punishment. It states that it is not a totally objectionable thing, but also that its abolishment can be driven by genuine Christian values, especially stressing the need for mercy. The Rosicrucian Fellowship and many other Christian esoteric schools condemn capital punishment in all circumstances.

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Proportionality ______

The Court has applied evolving standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless "grossly disproportionate" to the offense in question. An example can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system: "The scope of the Amendment is not static....[D]isproportion, both among punishments and between punishment and crime, is a factor to be considered...." Professor Stinneford asserts that the Eighth Amendment forbids punishments that are very disproportionate to the offense, even if the punishment by itself is not intrinsically barbaric, but Stinneford argues that "proportionality is to be measured primarily in terms of prior practice" according to the word "unusual" in the amendment, instead of being measured according to shifting and nebulous evolving standards. Similarly, Professor John Bessler points to "An Essay on Crimes and Punishments," written by Cesare Beccaria in the 1760s, which advocated proportionate punishments (many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it). Thus, Stinneford and Bessler disagree with the view of Justice Scalia, joined by Chief Justice Rehnquist, in Harmelin v. Michigan where they denied that the Punishments Clause contains any proportionality principle.

With Scalia and Rehnquist, Richard Epstein argues that the amendment does not refer broadly to the imposition of penalties, but rather refers more narrowly to the penalties themselves; Epstein says that judges who favor the broad view tend to omit the letter "s" at the end of the word "punishments".

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Landmark Cases ______

Generally iv. Weems v. US, 217 US 349 (1910) v. Furman v. Georgia, 408 US 238 (1972) Application to the States vi. Louisiana ex rel. Francis v. Resweber, 329 US (1947) vii. Robinson v. California, 370 U.S. 660 (1962) Three Strikes Laws viii. Rummel v. Estelle, 445 US 263 (1980) ix. Lockyer v. Andrade, 538 US 63 (2003) Excessive Fines x. Waters-Pierce Oil Co. v. Texas, 212 US 86 (1909) xi. US v. Bajakajian, 542 US 321 (1998) Excessive Bail xii. US v. Salerno, 481 US 739 (1987) xiii. Stack v. Boyle, 342 US 1 (1951) Drugs xiv. Harmelin v. Michigan, 501 US 957 (1991) The Death Penalty (Capital Punishment) xv. Corker v. Georgia, 433 US 584 (1977) xvi. Kennedy v. Louisiana, 554 US 407 (2008) xvii. Woodson v. North Carolina, 428 US 280 (1976)

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The Eighth Amendment Project