A case against the Eighth Amendment

One of the most esteemed parts of the United States Constitution is the Eighth Amendment, which reads:

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

Certainly, this will sound like a good idea to the vast majority of people. Most people would agree that a state which is allowed to do such things to its subjects can quickly become oppressive and authoritarian. But the Eighth Amendment is not nearly as good or useful as it appears. Let us examine why it cannot achieve its stated objective and why a free (stateless) society would be better off without this standard.

The first thing to note is that the interpretation of this amendment, like every other part of the Constitution, is decided by judges who are paid by the state in courts which are monopolized by the state. Thus, the Eighth Amendment means whatever people in black costumes say it means, which need not be in keeping with common usage or dictionary definitions because there is no effective challenge to their power once the appeals process is exhausted. (There are the possibilities that a judge will be impeached and removed or that the Constitution will be amended, but these possibilities are rare enough to dismiss in most cases.) The incentive of people who are paid by the state is to encourage the health of the state, which means erring on the side of expanding the size and scope of government as well as kowtowing to popular opinion rather than handing down consistent rulings. This constitutes a threat to individual liberty and tends toward the curtailment of civil liberties.

This has produced results both interesting and disturbing. While excessive bail is supposed to be prohibited, a judge is under no obligation to grant bail in the first place if the judge believes that a person is reasonably certain to flee prosecution and/or commit additional crimes if released. A denial of bail is functionally equivalent to a bail that is set infinitely high, which would be as excessive as possible. Bail also tends to be set in such a way that only the rich can afford to pay it themselves, thereby making the poor and middle classes deal with bail bondsmen and lose roughly 10 percent of the bail amount to them. This can be difficult to challenge because what is excessive versus what is reasonable is a subjective value judgment and higher courts have a tendency to side with lower courts unless there is a compelling reason not to do so. Fines are even less likely to be overturned on appeal for being excessive, and judges have a wide latitude in deciding how severe a fine to impose on a defendant. Only if a fine is “arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law” will it be overturned on appeal, and this is rare.

The prohibition of cruel and unusual punishments is similarly untrustworthy. A punishment is not cruel and unusual if it is not unusual, so a cruel punishment can be legitimized simply by using it more frequently. Going the other way, this means that the Eighth Amendment can only serve as the final end for a punishment that is on the path to obsolescence anyway, once it reaches a point where judges consider it to be unusual. In practice, this has come to mean that the allowed punishments are whatever the Supreme Court deems appropriate, based upon their subjective views on what constitutes cruelty. Also noteworthy is that this can mean that the punishment for a crime can differ in harshness based on time and place, and while this has historically trended toward less cruel punishments, there is no reason why this trend could not reverse someday.

Now that we have seen how the Eighth Amendment has not achieved its stated purpose, let us explore the case for why a free society should go without such a provision. A society without a state has no monopoly on criminal justice, so there is no need to restrain a power which does not exist in the first place. With a multitude of companies seeking to provide the greatest sense of justice to their customers at the least cost, the sort of abuses that the Eighth Amendment seeks to prohibit would be disincentivized by market forces, which tend to be far weightier than words upon dead animal hides. Without a government monopoly on courts, a troublesome interpretation of a legal principle could be disregarded by a boycott of the offending judge and/or the judge’s dispute resolution company.

But what of excessive bail, excessive fines, and cruel and unusual punishments? As mentioned before, a judge can deny bail in the current system if the judge believes that a person is reasonably certain to flee prosecution and/or commit additional crimes if released. But a better option may be to set an excessive bail for such a person. If it is paid, then whoever pays an excessive bail to free a person accused of criminal wrongdoing is making a costly and risky investment, one which would be expected to bring a strong return. Just as now, the person posting bail would assume responsibility for the accused, with the possibility of bounty hunters pursuing the accused should they try to jump bail. Admittedly, this would be rare, both because the several dispute resolution organizations would result in speedier trials and the danger that such a person cannot be trusted to fulfill the terms of a bail contract.

Excessive fines can also play a role in a free society. Such an action would be a soft variant of ostracism, as it would strongly incentivize a person to leave an area but fall short of a hard banishment from the area. Failure to pay the fine would keep one from doing business with that court company and create a blight upon the reputation of the scofflaw, leading other people in the area to cease business relationships with the person, especially those who also use that court company. While a few people might opt to buy their way back into the good graces of the community, most would get the message that their presence is unwanted and leave.

Cruel and unusual punishments may seem antithetical to a free society at first glance, but let us take a closer look. It is generally accepted that the punishment should fit the crime. Unfortunately, the standards of the Eighth Amendment make that impossible because there are cruel and unusual crimes and a ban on cruel and unusual punishments means that the punishments for those crimes will not fit. Such standards also eliminate the chilling effect on monstrous crimes that a painful and public execution can produce. Let us consider two examples.

1. Albert is an arsonist. In addition to destroying buildings and croplands, his fires have killed people. Burning at the stake would be a punishment that fits his crime, as it would kill him in the manner that he has killed innocent people and he cannot legitimately object to a taste of his own medicine.

2. Beth is one of the few unrepentant statists remaining in an anarchist world. She seeks to restore the state and uses initiatory force towards the end of ruling her fellow human beings against their will. Given the carnage wrought by states throughout history (about 300 million deaths in the 20th century alone), there is really no punishment severe enough for a person who would seek to restore such a system and undo what will have certainly been a herculean and generational effort to end statism. Just as states charge people with treason and kill them for taking direct actions to end the state, a stateless society would be justified in charging those who try to re-establish the state with “inverse treason” and executing them upon conviction.

In both cases, many people may find such punishments to be abhorrent and a free society may choose to handle these situations more mercifully. But to rule out cruel punishments for such exceptionally destructive criminals is to say that the punishment must not fit the crime and the deterrent effect of such punishments is never worth having.

In fairness, a free society need not abandon the standards of the Eighth Amendment, but there is a clear rationale for doing so.

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