Module 22: The Eighth Amendment

The Text

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

U.S. Const. amend. VIII (ratified December 15, 1791)¹

The sentence has 16 words and three clauses, and each clause grew its own body of law. The Bail Clause governs what a court may demand from a person who has been arrested and is waiting for trial. The Excessive Fines Clause limits what a government may take as punishment. The Cruel and Unusual Punishments Clause limits what the government may do to a person once convicted: how it executes, how long it imprisons, and in some cases whom it may punish at all.

The verbs matter. Bail "shall not be required," fines are not to be "imposed," and punishments are not to be "inflicted." Each verb points to a government actor with a decision to make. A bail amount is set by a magistrate, a fine is imposed by a sentencing judge or a legislature's schedule, and a punishment is inflicted by an executive, a warden or a guard. The Amendment says nothing about who the actor is, which is one reason it has been applied to legislatures, courts and prison staff alike.

It was written to restrain Congress and the federal courts. The Supreme Court held the cruel-and-unusual clause binding on the states in Robinson v. California (1962), it described the Fourteenth Amendment as applying the Amendment's restrictions to the states in later opinions, and in 2019 it held the Excessive Fines Clause incorporated in Timbs v. Indiana.²³ The Court has "assumed" that the Bail Clause applies to the states without squarely deciding the question, according to the Constitution Annotated.⁴

The Amendment speaks of "punishments," so it reaches penalties for crime and not every harsh experience. Browning-Ferris held that a punitive damages award between private parties is not a "fine," and Ingraham v. Wright (1977) held that paddling in public schools is not "punishment" in the Eighth Amendment's sense.⁵⁶ And the Amendment is an outer boundary on government power. It does not tell a legislature which sentence to choose among many that are allowed.

Magna Carta to the Declaration of Rights: Where the Words Came From

The oldest ancestor is monetary. Magna Carta in the 1215 text set out how the Crown could fine its subjects: "A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his 'contentment.'" An amercement was a fine, and "contentment" meant the means of a livelihood. The numbering varies by edition, and the version quoted here is chapter 20 in the Avalon Project's translation.⁷

Bail has its own history. The Statute of Westminster the First (1275) listed which offenses were bailable and which were not, and for centuries it was the basic English authority. Then the Crown pushed back. In Darnel's Case (1627) the judges allowed imprisonment without bail on the King's bare order, and Parliament answered with the Petition of Right in 1628. When officials used technical tricks to defeat habeas petitions, Parliament passed the Habeas Corpus Act of 1679. When judges then set bail so high that no one could pay, Parliament put a bail clause in the Bill of Rights of 1689. That is the Constitution Annotated's summary of the sequence, and it explains the ambiguity that lasts to this day: English law gave a right to bail by one statute, a procedure for enforcing it by another, and protection against excessive amounts by a third.⁸

The language itself comes from 1689. The English Bill of Rights of 1689 recited the abuses of James II in a list that includes "excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects," "excessive fines have been imposed," and "illegal and cruel punishments inflicted." The declaration that followed says "That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted."⁹ Scholars still argue over what the drafters had in mind. One famous case was the 1685 sentence of Titus Oates for perjury, which the State Trials report in detail: a fine of 1,000 marks on each indictment, loss of his clerical habits, whipping, and annual appearances in the pillory for life. A minority of the House of Lords protested that the judgments were "barbarous, inhuman, and unchristian" and without precedent.¹⁰ The Constitution Annotated notes that the English history shows concern with "arbitrary and disproportionate punishments" as well as barbarous ones, and cites the 1969 article by Anthony Granucci that argued for a narrower original meaning.¹¹

American drafters borrowed the 1689 language almost word for word. Virginia's Declaration of Rights, adopted June 12, 1776 said in section 9 "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."¹² Pennsylvania's 1776 constitution took a different route. It said in section 29 that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate," and in section 38 asked the legislature to make punishments "in some cases less sanguinary, and in general more proportionate to the crimes."¹³ Thomas Jefferson wrote Edmund Pendleton on August 26, 1776 that he objected to "the sanguinary hue of our penal laws" and wanted punishments "proportioned to the crime."¹⁴ The Northwest Ordinance of 1787 collected these strands for the new territory: "All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted."¹⁵

Features of that last text recur in Idaho. The exception for capital offenses "where the proof shall be evident or the presumption great" is the template for state constitutions that give a right to bail in all but death-penalty cases. And the phrase "cruel or unusual" appears with "or," a variation that also showed up in New York's 1788 ratification proposals. Whether "and" and "or" mean the same thing is still disputed in the cases below.

The Ratification Debates and the First Congress

The Constitution as signed in September 1787 had no Eighth Amendment, and the omission worried its critics. Abraham Holmes told the Massachusetts ratifying convention on January 30, 1788 that Congress had power to decide what punishments to inflict on persons convicted of crimes. In his words, they were "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline."¹⁶

The sharpest exchange came in Virginia on June 16, 1788. Patrick Henry argued that Congress could define crimes and prescribe punishments, and that Virginia's own declaration of rights had the answer: "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." He went on: "What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment." He warned that Congress might borrow the practice of France, Spain and Germany and use torture to extract confessions. Mr. Nicholas replied that the Virginia declaration of rights had itself been "repeatedly infringed and disregarded." George Mason answered that the clause against compelled self-incrimination and the clause against "cruel and unusual punishments" together excluded torture.¹⁷

The Federalist reply came from James Iredell of North Carolina, writing as "Marcus" in 1788. He observed that the 1689 declaration "went to an abuse of power in the Crown only" and was never intended to limit Parliament. He added that "The expressions 'unusual and severe' or 'cruel and unusual' surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification."¹⁸ The objection did not go away, and it returned in the House in 1789.

The state conventions voted to recommend the language. Virginia's proposed amendments of June 27, 1788 included, as item 13, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," and North Carolina's proposals of August 1, 1788 repeated it. New York's ratification of July 26, 1788 asked for the same protection but with a different conjunction: "nor cruel or unusual punishments inflicted."¹⁹²⁰²¹

James Madison put the clause into the First Congress on June 8, 1789. His proposal, part of the resolutions that he introduced that day, read "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." He would have placed it in Article I, section 9, between clauses 3 and 4, with the other rights in his fourth resolution.²² On August 17 the House debated it. Mr. Smith of South Carolina objected to the words "nor cruel and unusual punishments" because "the import of them" was "too indefinite." Samuel Livermore added: "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary." He went on to ask: "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine." Then he argued against taking away punishments that might be necessary: "it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?" The Annals record that "the question was put on the clause, and it was agreed to by a considerable majority."²³

The Constitution Annotated points out that Livermore's remarks are the only recorded comment by a Member of Congress on the bail clause, and that the First Congress at about the same time enacted section 33 of the Judiciary Act of 1789, which said that "upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death."⁸ Congress sent the amendment to the states on September 25, 1789 as the tenth of twelve articles, and it was ratified as the Eighth Amendment on December 15, 1791.¹

The Bail Clause: Stack, Carlson and Salerno

The Bail Clause forbids "excessive bail," and the Supreme Court's first modern case on it began with a roster of Communist Party leaders. In Stack v. Boyle, decided November 5, 1951, twelve petitioners indicted for conspiring to violate the Smith Act had their bail fixed at $50,000 each by the district court. The Court reversed. Chief Justice Vinson wrote that "Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment," and that the purpose was to ensure the accused would stand trial. He tied the right to the presumption of innocence: "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."²⁴ The Court wrote that the traditional standards in the Federal Rules of Criminal Procedure "are to be applied in each case to each defendant," so a single figure could not be set for twelve people at once.²⁴

A few months later the Court limited the clause from the other direction. Carlson v. Landon, decided March 10, 1952, involved noncitizens facing deportation, and the Court wrote that "The bail clause was lifted with slight changes from the English Bill of Rights Act" and that in England it was never thought "to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail."²⁵ On that reading the Amendment says what bail may not be, and leaves to Congress and legislatures the task of deciding which arrests may result in bail at all. The Constitution Annotated summarizes the result: the Court has held that the Eighth Amendment "has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country."⁴

That second idea was tested in United States v. Salerno, decided May 26, 1987. The Bail Reform Act of 1984 let federal courts detain arrestees charged with certain serious felonies before trial if the government showed, by clear and convincing evidence at an adversary hearing, that no release conditions could reasonably assure the safety of the community. The Court upheld the statute against a facial challenge by a vote of 6 to 3, in an opinion by Chief Justice Rehnquist. Justices Marshall and Brennan dissented in one opinion, and Justice Stevens dissented separately.²⁶ The majority wrote: "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."²⁶ The Court said the clause's only real limit on a legislature is that the conditions of release or detention not be excessive in light of the perceived evil, and that if the only asserted interest is making sure the person shows up, then bail "must be set by a court at a sum designed to ensure that goal, and no more."⁴

Stack and Salerno pull in different directions, and both are still good law. A court that sets a $2 million bail for a defendant who has no means to pay and no history of flight may be violating Stack. A court that denies bail entirely after a hearing, on a statute authorizing detention for dangerousness, is on firmer footing under Salerno. In both cases the question is the fit between the government's stated goal and the means used. This lesson could not confirm any later Supreme Court merits ruling that squarely applies the Bail Clause to a state, in the sources it opened. A person who wants to challenge an amount normally has to move for reduction in the trial court first and then appeal, a path the Court laid out in Stack.⁴

A 1971 case settled the base rule for the states. In Schilb v. Kuebel (December 20, 1971), the Court described bail as "basic to our system of law" and noted that the Eighth Amendment's ban on excessive bail "has been assumed to have application to the States through the Fourteenth Amendment."²⁷ The word "assumed" is still the Court's word, which is why this lesson says the Court has assumed, rather than held, that the Bail Clause binds the states.

The Excessive Fines Clause: Forfeitures, Fees and Cars

For nearly two centuries the Excessive Fines Clause was a dead letter in the Supreme Court. The Constitution Annotated records that in an early case the Court said it had no appellate jurisdiction to revise a lower court's sentence even if the excessiveness of the fine was apparent on the record, and that the Court dealt with fines on the poor mostly under the Equal Protection Clause.²⁸ The clause came to life in 1989 with a case that was not about a criminal defendant at all.

What counts as a fine

In Browning-Ferris Industries v. Kelco Disposal (June 26, 1989), a waste-disposal company challenged a $6 million punitive damages award, added to $51,146 in compensatory damages, in a private antitrust and tort suit. The Court held the Excessive Fines Clause did not apply, because at the time of the Amendment "the word 'fine' was understood to mean a payment to a sovereign as punishment for some offense." The clause limits only fines "directly imposed by, and payable to, the government."⁵²⁸ On June 28, 1993, the Court decided two cases the same day. Austin v. United States held that a civil forfeiture can be a fine. The question, Justice Blackmun wrote, "is not, as the United States would have it, whether forfeiture ... is civil or criminal, but rather whether it is punishment," and a forfeiture that can only be explained as serving in part to punish falls within the clause. Austin involved a mobile home and an auto body shop that the government sought to forfeit after a conviction for possessing cocaine with intent to distribute. The case went back to the lower courts for the excessiveness question.²⁹ Alexander v. United States, decided the same day, held that an in personam criminal forfeiture imposed after racketeering and obscenity convictions was "a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional 'fine,'" and the Court sent the excessiveness question back to the court of appeals.³⁰

The proportionality test

The test came five years later. United States v. Bajakajian (June 22, 1998) involved a man stopped at an airport with $357,144 in cash he had not reported, as federal law required for amounts over $10,000. The government sought forfeiture of the full amount. The district court ordered forfeiture of $15,000 plus probation and the maximum $5,000 fine, finding the full amount grossly disproportionate. The Supreme Court, by a 5 to 4 vote in an opinion by Justice Thomas joined by Justices Stevens, Souter, Ginsburg and Breyer, affirmed. A forfeiture ordered as part of a sentence was a "fine," and the test was proportionality: "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." Forfeitures violate the clause when "grossly disproportional" to the gravity of the offense.³¹²⁸ The Constitution Annotated points out that the Court weighed the defendant's character and the minimal harm to the government, and that the lower court had found the money did not come from illegal activity.²⁸

Incorporation, and what came after

On February 20, 2019 the Court decided Timbs v. Indiana. Tyson Timbs pleaded guilty in an Indiana court to dealing a controlled substance and conspiracy to commit theft. The police had seized a Land Rover that Timbs bought for $42,000 with insurance money he received when his father died. The trial court noticed that the maximum monetary fine for his offense was $10,000 and found the forfeiture grossly disproportionate to the gravity of the offense. The Indiana Supreme Court reversed, holding that the Excessive Fines Clause did not constrain the states. The U.S. Supreme Court vacated that judgment. Justice Ginsburg wrote for eight Justices, Justice Gorsuch concurred, and Justice Thomas concurred only in the judgment, writing that the better route to incorporation may be the Privileges or Immunities Clause.³ Ginsburg's opinion explained why the clause matters: "Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts' critics learned several centuries ago."³

The Court has since considered fines and forfeitures in a property-tax setting. In Tyler v. Hennepin County (decided May 25, 2023, No. 22-166), a Minnesota county seized a condominium for about $15,000 in unpaid taxes, interest and penalties, sold it for $40,000, and kept the $25,000 excess. The Court held for a unanimous bench, in an opinion by Chief Justice Roberts, that Geraldine Tyler plausibly alleged a violation of the Takings Clause. The case was filed under both the Takings Clause and the Excessive Fines Clause, and the opinion was decided on the Takings claim. Justice Gorsuch filed a concurrence that Justice Jackson joined. This lesson did not read the concurrence, and it does not say what the concurrence concluded about the Excessive Fines claim.³²

The case the Court has agreed to hear

The next major excessive-fines decision is scheduled for the 2026 Term. The Court granted review on July 20, 2026 in Jouppi v. Alaska (No. 25-246) and set argument for Tuesday, December 1, 2026.³³ According to an amicus brief filed September 10, 2026 by a group of Eighth Amendment scholars, the case asks whether "courts may consider the gravity of the underlying offense purely in the abstract" or whether they should instead "consider the gravity of the specific defendant's wrongdoing."³⁴ A Fox News report published September 26, 2026 describes the underlying facts: Kenneth Jouppi's 1969 Cessna, valued at $95,000, was at stake after Alaska troopers found alcohol aboard in 2012, including a six-pack described as plainly visible, as he prepared to fly a customer from Fairbanks to the village of Beaver, which had banned alcohol. He was convicted of misdemeanor alcohol importation and received the minimum $1,500 fine and three days in jail, while the maximum fine was $10,000. This lesson could not confirm those facts from a court document, only from the press account.³⁵ The case will answer whether the proportionality inquiry looks at the abstract crime or at the person.

Cruel and Unusual: From Wilkerson to Robinson

The Supreme Court heard almost nothing about the clause for its first century. When it did, it started with the method of execution. In Wilkerson v. Utah (October Term 1878), a man convicted of murder in the Territory of Utah was sentenced to be "publicly shot until you are dead." The Court upheld the sentence. Justice Clifford wrote that "it is safe to affirm that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution."³⁶ In In re Kemmler (May 19, 1890), the Court declined to disturb New York's decision to use electrocution, and Chief Justice Fuller wrote that "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution."³⁷ In Louisiana ex rel. Francis v. Resweber (January 13, 1947), Louisiana tried to execute Willie Francis in the electric chair on May 3, 1946, and the equipment failed. The Court, by a 5 to 4 vote, let the state try again. The plurality assumed that officials had acted in "a careful and humane manner" and wrote that "Accidents happen for which no man is to blame."³⁸ The case is still cited for the proposition that an isolated mishap does not by itself amount to cruel and unusual punishment.³⁹

Weems: proportion enters

The turning point is Weems v. United States (May 2, 1910). Paul Weems, a disbursing officer in the American-run government of the Philippines, was convicted of falsifying a public and official document. The sentence was 15 years of cadena temporal at hard labor, chained at the ankle and wrist, plus a fine of 4,000 pesetas and accessory penalties: civil interdiction, perpetual absolute disqualification and surveillance for life. Justice McKenna wrote for the Court that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense," and the Court reversed.⁴⁰ Weems introduced two ideas that never left. One is that the clause measures the penalty against the crime. The other is that its meaning is not frozen at 1791.

Trop and the standard that moves

Both ideas were joined in Trop v. Dulles (March 31, 1958). Albert Trop, an Army private serving in French Morocco in 1944, escaped from a stockade, was gone less than a day, and was convicted by court-martial of desertion after he surrendered while walking back toward his base. Under a federal statute he lost his citizenship. Chief Justice Warren, writing for four Justices in a plurality (Justice Brennan concurred separately, and Justice Frankfurter dissented for four), held that stripping citizenship as punishment violated the Eighth Amendment. His opinion supplied the phrase that every later case quotes: the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."⁴¹ The plurality stressed that the penalty left him stateless. The same opinion treated the death penalty differently. The Court said that, because capital punishment had been used throughout American history and was still widely accepted, it could not be said to violate the constitutional concept of cruelty.⁴²

Robinson: punishing a status

The next landmark came on June 25, 1962 in Robinson v. California. California made it a crime "to be addicted to the use of narcotics," punishable by a jail term of not less than 90 days. Justice Stewart, writing for the Court, reversed. He explained that "a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State." He wrote: "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."² Robinson is also the case in which the Court applied the Cruel and Unusual Punishments Clause to a state. Six years later, in Powell v. Texas (1968), a plurality held that a public-drunkenness law did not violate Robinson when enforced against a person with chronic alcoholism, and the Constitution Annotated treats Robinson as a ban on punishing status alone, with no overt act.⁴³ Grants Pass (below) turned on that distinction.

The Death Penalty: Furman, Gregg and the Rules That Followed

Until 1972 the Supreme Court declined to hold that the death penalty as such violated the Amendment. Then, on June 29, 1972, in Furman v. Georgia, it issued a short per curiam order: "The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." The five Justices in the majority, Douglas, Brennan, Stewart, White and Marshall, each wrote separately, and the four dissenters (the Chief Justice and Justices Blackmun, Powell and Rehnquist) filed opinions of their own.⁴⁴ Only Brennan and Marshall concluded that the penalty was always unconstitutional. The other three wrote narrower opinions. Justice Stewart wrote that the penalty "differs from all other forms of criminal punishment, not in degree but in kind," and that it is "unique in its total irrevocability."⁴⁴

States responded by rewriting their statutes. On July 2, 1976 the Court decided several capital cases. In Gregg v. Georgia, it upheld a Georgia scheme with a two-stage trial, specified aggravating circumstances and an automatic appeal. The judgment was announced by Justices Stewart, Powell and Stevens, with Justices Brennan and Marshall dissenting. The Court said: "We now hold that the punishment of death does not invariably violate the Constitution."⁴⁵ In Woodson v. North Carolina (the same day), the Court held that a statute making death mandatory for first-degree murder was unconstitutional, because the sentencer must consider the individual defendant. Justices Stewart, Powell and Stevens announced the judgment, with Justices Brennan and Marshall concurring on their own ground; Justice White, joined by the Chief Justice and Justice Rehnquist, dissented.⁴⁶ Two years later in Lockett v. Ohio (July 3, 1978), a plurality held that Ohio's statute, which narrowly limited the mitigating circumstances a sentencing judge could consider, could not support Sandra Lockett's death sentence.⁴⁷

The Constitution Annotated also notes that in Ring v. Arizona (2002) the Court held that the Sixth Amendment right to a jury includes the right to have a jury make the factual findings on which a death sentence depends.⁴²

Categorical Limits: Crimes, Defendants and Juveniles

Alongside the procedural rules, the Court has marked off crimes and classes of defendants for whom death is not available. The method is the one introduced in Weems and Trop: the Court looks to objective indicia of national consensus, such as legislation and sentencing practice, and then applies its own judgment about the penalty.

Crimes

In Coker v. Georgia (June 29, 1977), a plurality led by Justice White held that death for the rape of an adult woman is "grossly disproportionate and excessive."⁴⁸ In Kennedy v. Louisiana (June 25, 2008; modified October 1, 2008), the Court extended the logic to the rape of a child. Louisiana had charged a man with the aggravated rape of his then-8-year-old stepdaughter under a statute that allowed death for the rape of a child under 12. Justice Kennedy, writing for five Justices (Stevens, Souter, Ginsburg and Breyer joined him), asked "whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim," and answered: "We hold the Eighth Amendment prohibits the death penalty for this offense." Justice Alito wrote the dissent for four.⁴⁹

Participation and mental state

In Enmund v. Florida (July 2, 1982), the Court held 5 to 4 that death was impermissible for a getaway driver who "did not kill or intend to kill." In Tison v. Arizona (April 21, 1987), also 5 to 4, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."⁵⁰⁵¹

Intellectual disability

In Atkins v. Virginia (June 20, 2002), the Court held 6 to 3, in an opinion by Justice Stevens, that executions of people with intellectual disability, called "mentally retarded" in the opinion, are "cruel and unusual punishments."⁵² The Court left the states to work out how to identify who qualifies. That choice produced two rulings. In Hall v. Florida (May 27, 2014), the Court held 5 to 4, in an opinion by Justice Kennedy, that Florida could not require a prisoner to show an IQ score of 70 or below before presenting any other evidence of intellectual disability. Hall presented evidence that included an IQ score of 71.⁵³ In Moore v. Texas (March 28, 2017), the Court held 5 to 3, in an opinion by Justice Ginsburg, that the Texas Court of Criminal Appeals had erred by departing from current medical standards, which the state habeas court had consulted, in assessing Bobby Moore's claim.⁵⁴

The question returned in the 2025 Term. In Hamm v. Smith (No. 24-872), Alabama asked how courts may consider the cumulative effect of multiple IQ scores when a prisoner has taken several tests; Joseph Smith's five scores ranged from 72 to 78. On May 21, 2026, after argument in December, the Court dismissed the writ as improvidently granted, in an unsigned one-sentence order, and left in place the Eleventh Circuit's ruling that Smith is intellectually disabled and cannot be executed. SCOTUSblog described the vote as effectively 5 to 4. Justice Alito dissented in a 24-page opinion joined by Justice Thomas, and joined in part by the Chief Justice and Justice Gorsuch. Justice Thomas also filed his own dissent, and Justice Sotomayor, joined by Justice Jackson, filed a concurrence saying that the Eighth Amendment "does not prescribe a single formula for weighing multiple IQ scores."⁵⁵ Justice Thomas's separate dissent argued that Atkins is "demonstrably erroneous" and should be overruled.⁵⁶ Because the Court did not decide the question, Hall and Moore stay in force.

Age

The Court has treated age as a status that changes the analysis. In Roper v. Simmons (March 1, 2005), it held 5 to 4, in an opinion by Justice Kennedy, that the Eighth and Fourteenth Amendments forbid the death penalty for offenders who were under 18 when they committed their crimes.⁵⁷ In Graham v. Florida (May 17, 2010), the Court considered Terrance Graham, who was 16 when he committed armed burglary, was put on probation, and was later sentenced to life without parole after committing new crimes. Justice Kennedy, joined by four others, held that the Amendment forbids life without parole for a juvenile who did not commit a homicide, and that the state must provide "some meaningful opportunity for release based on demonstrated maturity and rehabilitation." Chief Justice Roberts concurred only in the judgment.⁵⁸

In Miller v. Alabama (June 25, 2012), a 5 to 4 decision by Justice Kagan, the Court held that a sentencing scheme that makes life without parole mandatory for a person under 18 convicted of murder is unconstitutional. The two petitioners were both 14 when they committed their offenses.⁵⁹ In Montgomery v. Louisiana (January 25, 2016), a 6 to 3 decision by Justice Kennedy, the Court held that Miller announced a substantive rule that applies retroactively. Henry Montgomery had been 17 in 1963 when he killed a deputy sheriff in Louisiana.⁶⁰ In Jones v. Mississippi (April 22, 2021), the Court held 6 to 3, in an opinion by Justice Kavanaugh, that a sentencer need not make a separate factual finding of permanent incorrigibility before imposing life without parole on a person who committed a homicide under 18, so long as the sentence is discretionary. Brett Jones was 15 when he killed his grandfather. Justice Thomas concurred in the judgment, and Justice Sotomayor, with Justices Breyer and Kagan, dissented.⁶¹

Prison Terms: How Much Proportionality Is There?

The 1910 decision in Weems said punishment should fit the crime. The Court has since been unable to agree on how far that applies to a prison sentence of a certain length.

In Rummel v. Estelle (March 18, 1980), William Rummel had been convicted of fraudulent use of a credit card to obtain $80 worth of goods or services, then of passing a forged check for $28.36, and then of obtaining $120.75 by false pretenses. Texas's recidivist statute made life imprisonment mandatory on the third felony. Justice Rehnquist, writing for the Court, held that the mandatory life sentence was not cruel and unusual. The Court of Appeals had given particular weight to the probability that Rummel would be eligible for parole within 12 years.⁶² Three years later, in Solem v. Helm (June 28, 1983), the Court went the other way. Jerry Helm had been convicted of a seventh nonviolent felony, uttering a "no account" check for $100, an offense that ordinarily carried a maximum of five years and a $5,000 fine. South Dakota sentenced him to life without possibility of parole under its recidivist statute. Justice Powell wrote that "no penalty is per se constitutional" and that a court's proportionality analysis should be guided by objective criteria: the gravity of the offense and harshness of the penalty, sentences imposed on other criminals in the same jurisdiction, and sentences imposed for the same crime in other jurisdictions.⁶³

The next decision narrowed Solem without overruling it. Harmelin v. Michigan (June 27, 1991) involved a man convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without parole. Justice Scalia, in an opinion joined in part by the Chief Justice, wrote: "We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." Justice Kennedy, joined by Justices O'Connor and Souter, concurred in the judgment on narrower ground: the Cruel and Unusual Punishments Clause "encompasses a narrow proportionality principle."⁶⁴ The Kennedy opinion supplied the controlling rule from then on. The sentence was upheld.

Two decisions on March 5, 2003 tested the narrow rule against California's "three strikes" law. In Ewing v. California, Gary Ewing was convicted of felony grand theft for stealing three golf clubs worth $399 apiece. He had four prior serious or violent felony convictions, and the court sentenced him to 25 years to life. Justice O'Connor announced the judgment of the Court in an opinion joined by the Chief Justice and Justice Kennedy, which relied on Kennedy's Harmelin principle and held that "a rational legislative judgment" supported the sentence; Justices Scalia and Thomas concurred in the judgment on the ground that the Amendment has no proportionality principle at all.⁶⁵ In Lockyer v. Andrade, decided the same day, Leandro Andrade had stolen approximately $150 worth of videotapes from two stores, and the court imposed two consecutive terms of 25 years to life. The Court held that the state court's rejection of his claim was not "contrary to, or an unreasonable application of" clearly established federal law under the federal habeas statute, in an opinion by Justice O'Connor for five Justices. Justice Souter dissented for four.⁶⁶

Among the term-of-years cases covered here, the Court has struck down a sentence only in Solem, and the later adult cases upheld every sentence they reviewed. The juvenile cases in the previous section rest on categorical rules.

Methods of Execution: Baze, Glossip, Bucklew and Nance

The old cases, Wilkerson, Kemmler and Resweber, set the baseline. The modern cases arose when states turned to lethal injection and then ran short of the drugs. In Baze v. Rees (April 16, 2008), Kentucky prisoners challenged a three-drug protocol that began with sodium thiopental. Chief Justice Roberts announced the judgment for a plurality of three, and the Court upheld the protocol. The opinion said a method must present a "substantial" or "objectively intolerable" risk of serious harm to violate the clause, and that a state's refusal to adopt a proffered alternative violates the Amendment only where the alternative is "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain."³⁹ Several Justices concurred on other grounds, and Justices Ginsburg and Souter dissented.³⁹

When thiopental and pentobarbital became unavailable, Oklahoma switched to a 500-milligram dose of midazolam as the first drug in a three-drug sequence. In Glossip v. Gross (June 29, 2015), Justice Alito, writing for five Justices, held that the prisoners had failed to show a "known and available alternative method of execution," and that the District Court had not committed clear error in finding the sought drugs unavailable.⁶⁷ In Bucklew v. Precythe (April 1, 2019), Justice Gorsuch wrote for five that Baze and Glossip govern all Eighth Amendment challenges to a method of execution, whether facial or as-applied. Russell Bucklew had a disease called cavernous hemangioma, which he said could cause him severe pain during a lethal injection, and he proposed nitrogen hypoxia as an alternative. The opinion said "the Eighth Amendment does not guarantee a prisoner a painless death" and described the history: the clause was understood to forbid methods that were long disused and that "intensified the sentence of death with a (cruel) 'superadd[ition]' of 'terror, pain, or disgrace.'"⁶⁸

In Nance v. Ward (June 23, 2022), the Court held 5 to 4, in an opinion by Justice Kagan, that when a prisoner proposes a method already authorized under state law, his claim can go forward under 42 U.S.C. section 1983 and does not have to be filed as a habeas petition. Justice Barrett dissented for four.⁶⁹ A prisoner who challenges a state's proposed method of execution must still identify a readily available alternative method that would significantly reduce the risk of severe pain.⁶⁹

The 2025 and 2026 executions debate

SCOTUSblog reported on June 2, 2026 that 47 people were executed in 11 states in 2025, the highest annual total since 2009, and that 14 more had been put to death in 2026 as of the article's date, according to the Death Penalty Information Center. The same report says the Court has not paused an execution since July 2024 and has denied more than 75 such requests since then. In October 2025, Justice Sotomayor, joined by Justices Kagan and Jackson, dissented in Boyd v. Hamm on the ground that nitrogen gas execution is "experimental" and "cruel," and wrote that the prisoner "asks for the barest form of mercy: to die by firing squad."⁷⁰ The article adds that none of the 11 cases then on the 2026-27 argument docket was a capital case.⁷⁰ This lesson could not confirm developments after that article, other than the Court's docket entries for the cases named here.

Prison Conditions, Medical Care and Force

The Cruel and Unusual Punishments Clause also reaches how a person is treated while serving a sentence, and the tests are subjective as much as objective: they ask what the official knew.

Estelle v. Gamble (November 30, 1976) began as a back injury. J. W. Gamble was hurt on November 9, 1973 while performing a prison work assignment, and sued over the treatment he received. Justice Marshall, for the Court, concluded that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' ... proscribed by the Eighth Amendment."⁷¹ In Rhodes v. Chapman (June 15, 1981), the Court held that housing two inmates in one cell at a maximum-security Ohio prison was not cruel and unusual, and Justice Powell wrote: "the Constitution does not mandate comfortable prisons."⁷² In Wilson v. Seiter (June 17, 1991), Justice Scalia wrote for the Court that a prisoner claiming that conditions of confinement are cruel and unusual must show a culpable state of mind on the part of prison officials.⁷³

Hudson v. McMillian (February 25, 1992) concerned a Louisiana inmate who had bruises, facial swelling, loosened teeth and a cracked dental plate after a beating by two guards. The Court held that an inmate who alleges excessive force need not prove significant injury. The test is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm," and the Amendment excludes from constitutional recognition "de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'"⁷⁴ Helling v. McKinney (June 18, 1993) held that a prisoner's involuntary exposure to environmental tobacco smoke from other inmates could support a claim, and Justice White's opinion was joined by six others, with Justices Thomas and Scalia dissenting.⁷⁵

In Farmer v. Brennan (June 6, 1994), a federal prisoner whom the opinion describes as a preoperative transsexual with feminine characteristics, housed with male prisoners, claimed that officials had been deliberately indifferent to his safety. Justice Souter wrote that "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." The official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must actually draw it.⁷⁶ Hope v. Pelzer (June 27, 2002) applied the rule to a case where the facts were extreme. Alabama guards twice handcuffed Larry Hope to a hitching post for disruptive conduct, once for two hours during which he was offered water and a bathroom break every 15 minutes. The Court held 6 to 3 that the Eighth Amendment violation was "obvious" on the facts alleged.⁷⁷

The largest remedial case is Brown v. Plata (decided May 23, 2011, No. 09-1233). California's prisons were designed to hold just under 80,000 people, and the population was almost double that. Two federal class actions, one about serious mental illness (Coleman v. Brown, filed in 1990) and one about medical care, ended with a three-judge court ordering the state to reduce its prison population to 137.5% of design capacity within two years. The Court affirmed, in an opinion by Justice Kennedy joined by four others. Justice Scalia, joined by Justice Thomas, and Justice Alito, joined by the Chief Justice, dissented.⁷⁸

Where the Amendment stops

Several decisions mark the outer edge. Ingraham v. Wright (April 19, 1977) held that paddling of students in public schools is not "punishment" in the Eighth Amendment's sense, because the Clause was designed to limit criminal punishments.⁶ Kingsley v. Hendrickson (June 22, 2015) involved a pretrial detainee forcibly removed from a cell, and the Court held 5 to 4, in an opinion by Justice Breyer, that under the Fourteenth Amendment's Due Process Clause a detainee need show only that the force was objectively unreasonable. This is a due process rule for people not yet convicted, not an Eighth Amendment rule.⁷⁹

Grants Pass and the camping cases

The most recent edge case is City of Grants Pass v. Johnson (June 28, 2024, 603 U.S. 520). Grants Pass, Oregon, has about 38,000 people, of whom roughly 600 are estimated to experience homelessness on a given day, and its ordinances restrict camping in public parks. Fines start at $295 and rise to $537.60 if unpaid, and repeat violations can lead to an exclusion order, and violating an exclusion order can constitute criminal trespass, punishable by a maximum of 30 days in prison and a $1,250 fine. The Ninth Circuit, following its own decision in Martin v. Boise, had held that the Eighth Amendment's Cruel and Unusual Punishments Clause bars cities from enforcing public-camping ordinances against homeless individuals whenever the number of homeless people in the jurisdiction exceeds the number of available shelter beds.⁸⁰ A 6 to 3 Court reversed. Justice Gorsuch's opinion, joined by the Chief Justice and Justices Thomas, Alito, Kavanaugh and Barrett, held that the clause does not bar these ordinances. He wrote that the Amendment "serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation's homelessness policy." Justice Thomas concurred, and Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.⁸⁰

The decision is the reason state and local camping rules now operate without a federal Eighth Amendment limit of the Martin type. Idaho passed a statewide rule the next year, discussed in the Idaho section below. The Idaho constitutional text is not identical, and this lesson could not confirm whether any Idaho court has applied Article I, section 6 to a camping ordinance.

The Interpretive Debate: Fixed Meaning or Evolving Standard

The cases above leave several questions open, and the Justices have answered them differently.

Does the text look backward or forward?

The standard formulation comes from Trop: the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."⁴¹ In Roper the Court used two inputs: objective indicia of consensus, including "the enactments of legislatures that have addressed the question," and then a determination "in the exercise of our own independent judgment" whether the penalty is disproportionate.⁵⁷ Critics of the approach make a textual and historical argument. Iredell argued in 1788 that "cruel and unusual" was "too vague to have been of any consequence."¹⁸ In Harmelin, Justice Scalia examined the history of the Clause and concluded that Solem "was simply wrong."⁶⁴ In Hamm v. Smith, Justice Thomas wrote that "nothing in the text and history of the Eighth Amendment justifies Atkins," so it is "demonstrably erroneous."⁵⁶

What did "unusual" and "cruel" mean in 1791?

The Constitution Annotated notes that the English history shows concern with arbitrary and disproportionate punishments as well as barbarous ones, and also records the 1969 Granucci article that argued for a narrower view.¹¹ Justice Gorsuch's opinion in Bucklew reads the original meaning to forbid methods that were "long disused (unusual)" and that added terror, pain or disgrace to a death sentence, and cites scholarship observing that Americans of the period used "unusual" for governmental actions that had fallen out of use.⁶⁸ A scholar's account is not a decision, and the Court has not adopted that reading for categorical limits on who may be executed.

Who decides?

A separate disagreement is about institutions. Grants Pass says that the Amendment "does not authorize federal judges to wrest those rights and responsibilities from the American people."⁸⁰ Plata upheld a federal court's order to cut a state's prison population over the dissents of Justices Scalia, Thomas, Alito and the Chief Justice, whose opinions this lesson did not read.⁷⁸ Roper asked whether the Court should add its own judgment to legislative counts, and answered yes. In Hamm, the Court avoided the question, and Justice Sotomayor's concurrence stressed that the parties agreed that Atkins gave States "the primary role" in enforcing the ban.⁵⁶

The pending Jouppi case adds a sentencing-level version of the same dispute. It asks about "the gravity of the specific defendant's wrongdoing" as against the offense "purely in the abstract," and the answer will decide whether the Excessive Fines inquiry works from the offense as a category or from the person before the court.³⁴

Common Mix-Ups

Landmark Cases

The table lists the decisions discussed above in the order of the topics. Citations are to the United States Reports where this lesson confirmed one in a source it opened, and otherwise give the docket number and decision date.

Idaho: Article I, Section 6, Bail Rules, the Firing Squad and Forfeiture

Idaho's constitution has its own version of the Eighth Amendment, and it is not a copy. Article I, section 6 reads: "All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted."⁸¹ The differences show on the page. The first sentence creates a right to bail, which the federal text does not, and its capital-offense exception echoes the Northwest Ordinance language discussed above. In the second sentence, "excess fines" replaces the federal "excessive fines." This lesson could not confirm whether Idaho's appellate courts read the clause differently from the federal one, so what follows describes statutes and rules and does not claim a state-law holding.

Bail in Idaho

Idaho Code section 19-2903 turns the constitutional right into a statute. A person charged with a crime who is not released on his own recognizance "is entitled to bail, as a matter of right, before a plea or verdict of guilty, except when the offense charged is punishable by death and the proof is evident or the presumption is great." The court has discretion to allow bail after a guilty plea or finding of guilt and before sentencing, while an appeal is pending (but "a court shall not allow bail when the defendant has been sentenced to death or life imprisonment"), on a probation-violation charge, and on a finding of a release violation.⁸² Section 19-2905 defines "bail" as "a monetary amount required by the court to release the defendant from custody and to ensure his appearance in court as ordered."⁸³

Idaho Criminal Rule 46 sets out how a judge decides the amount. A defendant charged with a non-capital crime "must be admitted to bail or released on the defendant's own recognizance" before a guilty plea or verdict. Rule 46(c) lists eleven factors a judge may consider, among them employment and financial condition, family relationships, residence, prior record and appearance history, the nature of the charge, and "the results of a pretrial risk assessment conducted using a tool approved by the Idaho Supreme Court." Rule 46(f) says bail may be posted as a cash deposit, property bond or surety bond and that "The court must not require that bail be posted only in cash."⁸⁴ The first factor, financial condition, is the same consideration the federal cases require when a court decides whether an amount is "reasonably calculated" to assure appearance.²⁴

The firing squad statute

Idaho Code section 19-2716 sets out the methods of execution, and its history line lists amendments in 2023, 2025 and 2026. Under House Bill 37, signed by Governor Brad Little on March 12, 2025 and effective July 1, 2026, the primary method is the firing squad. The director of the Idaho Department of Correction must certify to the court, within five days after a death warrant issues, whether the firing squad is available. If so, that is the method. If the director does not certify that it is available, or does not file a certification, the method is lethal injection. If a court holds the firing squad unconstitutional, on its face or as applied, or otherwise determines that lethal injection is a constitutionally required method, the method is lethal injection. The director determines the procedures for any execution, and those procedures "shall not be subject to the provisions of chapter 52, title 67, Idaho Code," which is the Idaho Administrative Procedure Act.⁸⁵⁸⁶⁸⁷

The Idaho Capital Sun reported on March 12, 2025 that the House passed the bill 58 to 11 and the Senate passed it 28 to 7, and that the Idaho Department of Correction counted nine people on death row. The same report says Idaho's last scheduled execution attempt, of Thomas Creech, was called off after officials "failed to establish an IV line" and says the Department of Correction had not finalized its firing squad procedures as of that date.⁸⁸ The statute's history line lists amendments to section 19-2716 in 2025 (chapter 36) and in 2026 (chapter 225, two sections), and a 2026 bill, House Bill 803, amended section 19-2716 and the confidentiality provision in section 19-2716A. The Legislature's bill page describes it as amending existing law "to provide that procedures used in an execution shall not be subject to certain provisions of law." It passed the House 60 to 8 with 2 absent on March 17, 2026, and the Senate 34 to 1 on March 27. The Governor signed it on March 31, 2026 (Session Laws chapter 225), and it took effect March 31, 2026 for sections 1 and 3 and July 1, 2026 for section 2. This lesson did not confirm what the confidentiality revision changed section by section, and it did not review the Department's current execution procedures.⁸⁵⁸⁹

The constitutional questions for the firing squad are the ones in the methods section above. Under Baze, Glossip and Bucklew, a prisoner challenging a method has to identify a feasible and readily implemented alternative that would significantly reduce a substantial risk of severe pain. The Idaho statute itself builds that structure into the text: when a court holds one method unconstitutional, the statute names the other method as the replacement.⁶⁸⁸⁵ Justice Sotomayor's October 2025 dissent in Boyd v. Hamm, a nitrogen-gas case, said the prisoner "asks for the barest form of mercy: to die by firing squad."⁷⁰ That dissent is not a holding, and this lesson found no Idaho decision on the point.

Civil forfeiture and proportionality

Idaho's controlled-substance forfeiture statute, section 37-2744, makes forfeiture proceedings civil actions against the property and sets the standard of proof at "preponderance of the evidence." For property other than contraband, the court "shall also determine whether a property forfeiture is proportionate to the crime alleged, charged or proven." The statute lists factors, including "the nature and severity of the crime, the fair market value of the property, the intangible or subjective value of the property, the hardship to the defendant, the effect of forfeiture on the defendant's family or financial circumstances, and any other sanctions or penalties that have been imposed upon the defendant." The court "may tailor the forfeiture of property according to its determination of proportionality as justice requires."⁹⁰ That is a state-law proportionality test that a Timbs-style challenge could use alongside the federal clause. The Legislature amended the section again in 2026 (chapter 168), and this lesson could not determine what that amendment changed.⁹⁰

Camping, fines and the post-Grants Pass law

Idaho Code section 67-2341, added in 2025 (chapter 248), makes public camping or sleeping unlawful in the state and bars a city or single countywide highway district from authorizing it on public property or rights-of-way. By its own terms, subsection (5), the section applies only within city limits of cities with a population of 100,000 or more. The Attorney General may sue a city that knowingly violates the section, and a city may be assessed a civil penalty of up to $10,000 for each violation.⁹¹ The Idaho Capital Sun reported on July 31, 2026 that Boise's citation for camping on public property is $10, which came to $66.50 after court processing fees in one case, and that a Meridian ticket totals $156.50; Boise had issued more than 100 tickets since adopting its ordinance, and Nampa had issued none, according to the paper's public records request.⁹² That coverage did not discuss the Eighth Amendment, Martin v. Boise or Grants Pass.⁹² Under Grants Pass, a federal cruel-and-unusual challenge to enforcement of these ordinances would face the Supreme Court's holding that such enforcement does not violate the Clause. Whether Idaho's own Article I, section 6 could support a different result is an open question that this lesson could not resolve.

Where This Shows Up for Officials, Reporters and Citizens

The cash-only bail order

Mara Tolliver is arrested in the invented county of Larkmoor on a misdemeanor charge. The magistrate sets bail at an amount and says it must be paid in cash. Idaho Criminal Rule 46(f) says "The court must not require that bail be posted only in cash," and Rule 46(c) lists eleven factors the court may consider in setting the amount, including her employment, residence and appearance history.⁸⁴ A reporter covering the hearing should note which factors the judge named. If the amount is challenged, the federal standard is whether it exceeds what is "reasonably calculated" to assure appearance, fixed for her individually.²⁴

Reading an execution notice

Reporter Dario Venn gets a tip that the invented state corrections director has certified that the firing squad is available. Under Idaho Code section 19-2716 as amended by House Bill 37, the director must make that certification by affidavit to the court within five days of a death warrant, and the method follows the certification.⁸⁵ The procedures themselves are set by the director and exempt from the Administrative Procedure Act, so there may be no rulemaking record to read. Venn should ask for the affidavit in the court file, since that is the document the statute requires.

The truck and the proportionality question

Kai Rennick's pickup is seized after his arrest on a small drug charge in the invented town of Port Ellery, and the state files a forfeiture action. Under section 37-2744, the court must decide whether the forfeiture is proportionate and consider the nature and severity of the crime, the fair market value of the truck, hardship and effects on his family or finances, and other sanctions already imposed.⁹⁰ Timbs says the same federal clause applies to the state, and the Court reached that result on facts like these: a $42,000 vehicle and a maximum $10,000 fine.³

A citation under the camping law

In the invented city of Fenwick Falls, which has more than 100,000 residents, Imogen Sark is cited for sleeping in a vehicle on a public street. The city's penalty is a small fine, and section 67-2341 would apply there because of its population.⁹¹ A journalist covering a challenge should say precisely which clause is argued: the federal Cruel and Unusual Punishments Clause, which Grants Pass held does not bar enforcement of such ordinances, or Idaho's own Article I, section 6, on which this lesson found no ruling.⁸⁰⁸¹

A sentence called too harsh

Callum Pryor receives a long prison term for a repeat property offense. Advocates call it "cruel and unusual." The test since Ewing is whether the sentence is "grossly disproportionate," and the Court has upheld sentences of 25 years to life for stealing three golf clubs and for stealing about $150 of videotapes. A report should say what the legislature authorized and what comparable cases produced, and should not treat the label as a finding.⁶⁵⁶⁶

Watching Jouppi

Anyone covering forfeiture should watch the December 1, 2026 argument in Jouppi v. Alaska. If the Court says that the specific defendant's conduct counts, agencies in every state that seize property will have to defend the amount against the person, not just the statute.³³³⁴

Related Modules

Related lessons: Search, Due Process and Fair Trials (Module 9, the overview of these rights); The Fifth Amendment (Module 19, due process and takings); The Sixth Amendment (Module 20, trial rights); The Seventh Amendment (Module 21, civil juries); The Thirteenth Amendment (Module 27, the punishment clause); The Fourteenth Amendment (Module 28, how the Bill of Rights reaches the states); Article III: The Courts (Module 4); Federalism and the States (Module 5).

Sources & Further Reading

Primary Sources

• National Archives, The Bill of Rights: A Transcription (enrolled resolution of September 25, 1789)
• Avalon Project, Magna Carta (1215)
• Avalon Project, English Bill of Rights (1689)
• Avalon Project, Northwest Ordinance (1787)
• The Founders' Constitution, Amendment VIII, Document 1: Case of Titus Oates
• The Founders' Constitution, Amendment VIII, Document 5: Virginia Declaration of Rights, section 9
• The Founders' Constitution, Amendment VIII, Document 8: Pennsylvania Constitution of 1776
• The Founders' Constitution, Amendment VIII, Document 9: Jefferson to Pendleton
• The Founders' Constitution, Amendment VIII, Document 11: Iredell, Marcus
• The Founders' Constitution, Amendment VIII, Document 12: Abraham Holmes
• The Founders' Constitution, Amendment VIII, Document 13: Virginia Ratifying Convention debate
• The Founders' Constitution, Amendment VIII, Document 14: House debate of August 17, 1789
• The Founders' Constitution, Bill of Rights, Document 8: New York ratification
• The Founders' Constitution, Bill of Rights, Document 9: Virginia proposed amendments
• The Founders' Constitution, Bill of Rights, Document 10: North Carolina proposed amendments
• The Founders' Constitution, Bill of Rights, Document 11: Madison's resolutions of June 8, 1789
• Idaho Constitution, Article I, section 6
• Idaho Code 19-2716, methods of execution
• Idaho Code 19-2903, right to bail
• Idaho Code 19-2905, definitions
• Idaho Code 37-2744, forfeitures
• Idaho Code 67-2341, public camping or sleeping
• Idaho Code title 67, chapter 52, Idaho Administrative Procedure Act
• Idaho House Bill 37 (2025)
• Idaho Criminal Rule 46, Idaho Supreme Court

Opinions

• Stack v. Boyle, 342 U.S. 1 (1951)
• Carlson v. Landon, 342 U.S. 524 (1952)
• Schilb v. Kuebel, 404 U.S. 357 (1971)
• United States v. Salerno, 481 U.S. 739 (1987)
• Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257 (1989)
• Austin v. United States, 509 U.S. 602 (1993)
• Alexander v. United States, 509 U.S. 544 (1993)
• United States v. Bajakajian, 524 U.S. 321 (1998)
• Timbs v. Indiana, 586 U.S. 146 (2019)
• Tyler v. Hennepin County, No. 22-166 (2023)
• Wilkerson v. Utah, 99 U.S. 130 (1878)
• In re Kemmler, 136 U.S. 436 (1890)
• Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)
• Weems v. United States, 217 U.S. 349 (1910)
• Trop v. Dulles, 356 U.S. 86 (1958)
• Robinson v. California, 370 U.S. 660 (1962)
• Furman v. Georgia, 408 U.S. 238 (1972)
• Gregg v. Georgia, 428 U.S. 153 (1976), U.S. Reports volume 428
• Woodson v. North Carolina, 428 U.S. 280 (1976)
• Lockett v. Ohio, 438 U.S. 586 (1978)
• Coker v. Georgia, 433 U.S. 584 (1977)
• Enmund v. Florida, 458 U.S. 782 (1982)
• Tison v. Arizona, 481 U.S. 137 (1987)
• Atkins v. Virginia, 536 U.S. 304 (2002)
• Roper v. Simmons, 543 U.S. 551 (2005)
• Kennedy v. Louisiana, 554 U.S. 407 (2008)
• Graham v. Florida, 560 U.S. 48 (2010)
• Miller v. Alabama, 567 U.S. 460 (2012)
• Montgomery v. Louisiana, 577 U.S. 190 (2016)
• Jones v. Mississippi, 593 U.S. 98 (2021)
• Hall v. Florida, 572 U.S. 701 (2014)
• Moore v. Texas, 581 U.S. 1 (2017)
• Hamm v. Smith, No. 24-872 (May 21, 2026), per curiam with concurrence and dissents
• Rummel v. Estelle, 445 U.S. 263 (1980)
• Solem v. Helm, 463 U.S. 277 (1983)
• Harmelin v. Michigan, 501 U.S. 957 (1991)
• Ewing v. California, 538 U.S. 11 (2003)
• Lockyer v. Andrade, 538 U.S. 63 (2003)
• Baze v. Rees, 553 U.S. 35 (2008)
• Glossip v. Gross, 576 U.S. 863 (2015), U.S. Reports volume 576
• Bucklew v. Precythe, 587 U.S. 119 (2019)
• Nance v. Ward, No. 21-439 (2022)
• Estelle v. Gamble, 429 U.S. 97 (1976)
• Rhodes v. Chapman, 452 U.S. 337 (1981)
• Wilson v. Seiter, 501 U.S. 294 (1991)
• Hudson v. McMillian, 503 U.S. 1 (1992)
• Helling v. McKinney, 509 U.S. 25 (1993)
• Farmer v. Brennan, 511 U.S. 825 (1994)
• Hope v. Pelzer, 536 U.S. 730 (2002)
• Brown v. Plata, No. 09-1233 (2011)
• Ingraham v. Wright, 430 U.S. 651 (1977)
• Kingsley v. Hendrickson, No. 14-6368 (2015)
• City of Grants Pass v. Johnson, 603 U.S. 520 (2024)
• Docket, Jouppi v. Alaska, No. 25-246

Secondary and News Sources

• Constitution Annotated, Modern Doctrine on Bail
• Constitution Annotated, Historical Background on Excessive Bail
• Constitution Annotated, Excessive Fines
• Constitution Annotated, Historical Background on Cruel and Unusual Punishment
• Constitution Annotated, Early Doctrine on Death Penalty
• Constitution Annotated, Addiction, Alcoholism, and Homelessness under the Eighth Amendment
• Brief of Eighth Amendment Scholars as Amici Curiae, Jouppi v. Alaska (Sept. 10, 2026)
• SCOTUSblog, Court sidesteps death-row IQ dispute (May 21, 2026)
• SCOTUSblog, The state of the death penalty at the Supreme Court (June 2, 2026)
• Idaho Capital Sun, Idaho will be only state with firing squad as main execution method (March 12, 2025)
• Idaho Capital Sun, An Idaho law penalizes people sleeping in public spaces (July 31, 2026)
• Fox News, report on Jouppi v. Alaska (Sept. 26, 2026)
• Idaho House Bill 803 (2026), bill text as posted by a news outlet

Footnotes

1. National Archives, The Bill of Rights: A Transcription, https://www.archives.gov/founding-docs/bill-of-rights-transcript. The Eighth Amendment text is quoted from the enrolled joint resolution of September 25, 1789, in which it appears as the tenth of twelve articles; the page states that ten articles were ratified on December 15, 1791.
2. Robinson v. California, 370 U.S. 660 (1962) (Stewart, J.), argued April 17, 1962, decided June 25, 1962, https://www.law.cornell.edu/supremecourt/text/370/660. Quotations are from the opinion text. Justice Douglas concurred, and Justice Frankfurter took no part.
3. Timbs v. Indiana, 586 U.S. 146 (2019), No. 17-1091, argued November 28, 2018, decided February 20, 2019 (Ginsburg, J., for the Court; Gorsuch, J., concurring; Thomas, J., concurring in the judgment), https://www.law.cornell.edu/supremecourt/text/17-1091. The reporter citation is confirmed in the Eighth Amendment scholars' brief in Jouppi. The quotation about exorbitant tolls is from the opinion.
4. Constitution Annotated, Modern Doctrine on Bail, https://www.law.cornell.edu/constitution-conan/amendment-8/modern-doctrine-on-bail. The statements that the Court has "assumed" the clause applies to the states, that the amendment "has not prevented Congress from defining the classes of cases in which bail shall be allowed," and the Salerno passages about "compelling interests" and bail "set by a court at a sum designed to ensure that goal, and no more" are quoted from this page, which in turn cites Carlson and Salerno.
5. Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) (Blackmun, J.), argued April 18, 1989, decided June 26, 1989, https://www.law.cornell.edu/supremecourt/text/492/257. The jury awarded $51,146 in compensatory damages and $6 million in punitive damages; the Court held the Excessive Fines Clause inapplicable to a punitive damages award between private parties.
6. Ingraham v. Wright, 430 U.S. 651 (1977) (Powell, J.), argued November 2-3, 1976, decided April 19, 1977, https://www.law.cornell.edu/supremecourt/text/430/651. The Court framed the first question as whether paddling of students constitutes cruel and unusual punishment and noted that the original design of the clause was to limit criminal punishments.
7. Magna Carta (1215), Avalon Project translation, https://avalon.law.yale.edu/medieval/magna.asp. The amercement passage is quoted from that translation, in which it is chapter 20; numbering differs among editions.
8. Constitution Annotated, Historical Background on Excessive Bail, https://www.law.cornell.edu/constitution-conan/amendment-8/historical-background-on-excessive-bail. The sequence of the Statute of Westminster the First, Darnel's Case, the Petition of Right, the Habeas Corpus Act of 1679 and the 1689 Bill of Rights, the Livermore remark and section 33 of the Judiciary Act of 1789 are drawn from this page.
9. English Bill of Rights (1689), Avalon Project, https://avalon.law.yale.edu/17th_century/england.asp. The recital of abuses and the declaration are quoted from the text.
10. The Case of Titus Oates, reprinted in The Founders' Constitution, Amendment VIII, Document 1, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs1.html. The sentence, the fine of 1,000 marks on each indictment, and the minority protest of the House of Lords are taken from the report there.
11. Constitution Annotated, Historical Background on Cruel and Unusual Punishment, https://www.law.cornell.edu/constitution-conan/amendment-8/historical-background-on-cruel-and-unusual-punishment. The page discusses the English history, the concern with arbitrary and disproportionate punishments, and the 1969 article by Anthony Granucci.
12. Virginia Declaration of Rights, section 9 (June 12, 1776), reprinted in The Founders' Constitution, Amendment VIII, Document 5, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs5.html.
13. Pennsylvania Constitution of 1776, sections 29 and 38, The Founders' Constitution, Amendment VIII, Document 8, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs8.html.
14. Thomas Jefferson to Edmund Pendleton, August 26, 1776, The Founders' Constitution, Amendment VIII, Document 9, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs9.html.
15. Northwest Ordinance (1787), Avalon Project, https://avalon.law.yale.edu/18th_century/nworder.asp. The bail, fines and punishments language is from the articles of compact in the ordinance.
16. Abraham Holmes, Massachusetts Ratifying Convention, January 30, 1788, The Founders' Constitution, Amendment VIII, Document 12, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs12.html.
17. Debate in the Virginia Ratifying Convention, June 16, 1788, The Founders' Constitution, Amendment VIII, Document 13, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs13.html. The Henry, Nicholas and Mason remarks are quoted or summarized from that text.
18. James Iredell ("Marcus"), Answers to Mr. Mason's Objections to the New Constitution (1788), The Founders' Constitution, Amendment VIII, Document 11, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs11.html.
19. Virginia Ratifying Convention, Proposed Amendments (June 27, 1788), The Founders' Constitution, Bill of Rights, Document 9, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss9.html.
20. North Carolina Ratifying Convention, Declaration of Rights and Other Amendments (August 1, 1788), The Founders' Constitution, Bill of Rights, Document 10, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss10.html.
21. New York Ratification of the Constitution (July 26, 1788), The Founders' Constitution, Bill of Rights, Document 8, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss8.html. The New York text uses "cruel or unusual."
22. James Madison, resolutions in the House of Representatives, June 8, 1789, The Founders' Constitution, Bill of Rights, Document 11, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. The clause appears in the fourth resolution, placed in article 1, section 9, between clauses 3 and 4.
23. House of Representatives, debate on amendments to the Constitution, August 17, 1789, The Founders' Constitution, Amendment VIII, Document 14, https://press-pubs.uchicago.edu/founders/documents/amendVIIIs14.html. The remarks of Mr. Smith of South Carolina and Samuel Livermore and the vote on the clause are quoted from the Annals as reproduced there.
24. Stack v. Boyle, 342 U.S. 1 (1951) (Vinson, C.J.), argued October 18, 1951, decided November 5, 1951, https://www.law.cornell.edu/supremecourt/text/342/1. The twelve petitioners were indicted for conspiring to violate the Smith Act; bail was fixed at $50,000 each. Quotations are from the opinion text.
25. Carlson v. Landon, 342 U.S. 524 (1952), decided March 10, 1952, https://www.law.cornell.edu/supremecourt/text/342/524. The quoted passage about the English Bill of Rights is from the opinion text.
26. United States v. Salerno, 481 U.S. 739 (1987), argued January 21, 1987, decided May 26, 1987 (Rehnquist, C.J., for the Court, joined by White, Blackmun, Powell, O'Connor and Scalia; Marshall, J., dissenting, joined by Brennan; Stevens, J., dissenting), https://www.law.cornell.edu/supremecourt/text/481/739.
27. Schilb v. Kuebel, 404 U.S. 357 (1971) (Blackmun, J.), argued October 12, 1971, decided December 20, 1971, https://www.law.cornell.edu/supremecourt/text/404/357. Both quotations are from the opinion text.
28. Constitution Annotated, Excessive Fines, https://www.law.cornell.edu/constitution-conan/amendment-8/excessive-fines. The summary of Ex parte Watkins, Browning-Ferris, Austin and Bajakajian, and the quotations from Browning-Ferris and Bajakajian, are taken from this page and checked against the opinions.
29. Austin v. United States, 509 U.S. 602 (1993) (Blackmun, J., for the Court, joined by White, Stevens, O'Connor and Souter), argued April 20, 1993, decided June 28, 1993, https://www.law.cornell.edu/supremecourt/text/509/602.
30. Alexander v. United States, 509 U.S. 544 (1993) (Rehnquist, C.J.), argued January 12, 1993, decided June 28, 1993, https://www.law.cornell.edu/supremecourt/text/509/544. The quoted phrase is from the opinion; the case was vacated and remanded.
31. United States v. Bajakajian, 524 U.S. 321 (1998), No. 96-1487, argued November 4, 1997, decided June 22, 1998 (Thomas, J., for the Court, joined by Stevens, Souter, Ginsburg and Breyer; Kennedy, J., dissenting, joined by Rehnquist, O'Connor and Scalia), https://www.law.cornell.edu/supremecourt/text/96-1487. The facts ($357,144; $15,000 forfeiture ordered by the district court; $5,000 maximum fine) are from the syllabus.
32. Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023) (Roberts, C.J., for a unanimous Court; Gorsuch, J., concurring, joined by Jackson, J.), https://www.law.cornell.edu/supremecourt/text/22-166. This lesson could not confirm the U.S. Reports citation and did not read the concurrence.
33. Docket, Jouppi v. Alaska, No. 25-246, https://www.supremecourt.gov/docket/docketfiles/html/public/25-246.html. The petition was granted July 20, 2026, and argument was set for Tuesday, December 1, 2026.
34. Brief of Eighth Amendment Scholars as Amici Curiae in Support of Neither Party, Jouppi v. Alaska, No. 25-246 (filed September 10, 2026), https://www.supremecourt.gov/DocketPDF/25/25-246/423847/20260910171032474_Final%20-%20Jouppi%208A%20Scholars%20Amicus%20Brief.pdf. The brief quotes the petitioner's question presented, which the quotation in this lesson takes from it.
35. Fox News, report on Jouppi v. Alaska, published September 26, 2026, https://www.foxnews.com/politics/six-pack-beer-magna-carta-fix-problem-plaguing-americans-decades.amp. This is a press account, not a court document. It gives the facts used here: the 1969 Cessna valued at $95,000, the 2012 search, the Fairbanks to Beaver flight, the misdemeanor conviction, the $1,500 minimum fine and three days, and the $10,000 maximum fine.
36. Wilkerson v. Utah, 99 U.S. 130 (October Term 1878) (Clifford, J.), https://www.law.cornell.edu/supremecourt/text/99/130.
37. In re Kemmler, 136 U.S. 436 (1890) (Fuller, C.J.), decided May 19, 1890, https://www.law.cornell.edu/supremecourt/text/136/436.
38. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), argued November 18, 1946, decided January 13, 1947, https://www.law.cornell.edu/supremecourt/text/329/459. Justice Reed announced the judgment for a plurality; the four dissenters are referred to in Justice Frankfurter's concurrence, which speaks of "four members of the Court" finding a denial of due process.
39. Baze v. Rees, 553 U.S. 35 (2008), No. 07-5439, argued January 7, 2008, decided April 16, 2008 (Roberts, C.J., announcing the judgment for a plurality of three; Stevens, Scalia, Thomas and Breyer concurring in the judgment; Ginsburg, J., dissenting, joined by Souter), https://www.law.cornell.edu/supct/html/07-5439.ZO.html. The syllabus cites Resweber for the rule that an isolated mishap alone does not violate the Eighth Amendment.
40. Weems v. United States, 217 U.S. 349 (1910) (McKenna, J.), argued November 30 and December 1, 1909, decided May 2, 1910, https://www.law.cornell.edu/supremecourt/text/217/349. The sentence, the accessory penalties and the quoted precept are from the opinion; Justice White dissented.
41. Trop v. Dulles, 356 U.S. 86 (1958), decided March 31, 1958 (Warren, C.J., announcing the judgment, joined by Black, Douglas and Whittaker; Brennan, J., concurring; Frankfurter, J., dissenting, joined by Burton, Clark and Harlan), https://www.law.cornell.edu/supremecourt/text/356/86.
42. Constitution Annotated, Early Doctrine on Death Penalty, https://www.law.cornell.edu/constitution-conan/amendment-8/early-doctrine-on-death-penalty. The page quotes Trop on capital punishment and discusses Ring v. Arizona (2002); this lesson did not read Ring itself.
43. Constitution Annotated, Addiction, Alcoholism, and Homelessness under the Eighth Amendment, https://www.law.cornell.edu/constitution-conan/amendment-8/addiction-alcoholism-and-homelessness-under-the-eighth-amendment. The description of Powell v. Texas, 392 U.S. 514 (1968), as a plurality ruling is from this page; this lesson did not read Powell itself.
44. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), decided June 29, 1972, https://www.law.cornell.edu/supremecourt/text/408/238. The per curiam order, the listing of the separate opinions, and the Stewart and Burger passages are from the opinion text.
45. Gregg v. Georgia, 428 U.S. 153 (1976), No. 74-6257, argued March 31, 1976, decided July 2, 1976 (judgment announced by Stewart, Powell and Stevens; Brennan and Marshall, JJ., dissenting), https://www.govinfo.gov/content/pkg/USREPORTS-428/pdf/USREPORTS-428-153.pdf. The quotation is from the U.S. Reports volume.
46. Woodson v. North Carolina, 428 U.S. 280 (1976), argued March 31, 1976, decided July 2, 1976, https://www.law.cornell.edu/supremecourt/text/428/280. Justices Stewart, Powell and Stevens announced the judgment; Justices Brennan and Marshall concurred in the judgment on their own ground; Justice White, joined by the Chief Justice and Justice Rehnquist, dissented.
47. Lockett v. Ohio, 438 U.S. 586 (1978), argued January 17, 1978, decided July 3, 1978, https://www.law.cornell.edu/supremecourt/text/438/586. The syllabus describes the statute's limits on the sentencer's consideration of mitigating circumstances.
48. Coker v. Georgia, 433 U.S. 584 (1977), decided June 29, 1977 (White, J., announcing the judgment, joined by Stewart, Blackmun and Stevens), https://www.law.cornell.edu/supremecourt/text/433/584. The quoted phrase is from the plurality opinion.
49. Kennedy v. Louisiana, 554 U.S. 407 (2008), No. 07-343, argued April 16, 2008, decided June 25, 2008 (modified October 1, 2008) (Kennedy, J., joined by Stevens, Souter, Ginsburg and Breyer; Alito, J., dissenting, joined by Roberts, Scalia and Thomas), https://www.law.cornell.edu/supct/html/07-343.ZO.html. The quoted holding is from the syllabus.
50. Enmund v. Florida, 458 U.S. 782 (1982) (White, J.), argued March 23, 1982, decided July 2, 1982, https://www.law.cornell.edu/supremecourt/text/458/782. Justice O'Connor dissented, joined by the Chief Justice and Justices Powell and Rehnquist. The quoted phrase is from the syllabus and opinion.
51. Tison v. Arizona, 481 U.S. 137 (1987) (O'Connor, J., joined by Rehnquist, White, Powell and Scalia; Brennan, J., dissenting), argued November 3, 1986, decided April 21, 1987, https://www.law.cornell.edu/supremecourt/text/481/137.
52. Atkins v. Virginia, 536 U.S. 304 (2002) (Stevens, J., joined by O'Connor, Kennedy, Souter, Ginsburg and Breyer; Rehnquist, C.J., and Scalia, J., dissenting), argued February 20, 2002, decided June 20, 2002, https://www.law.cornell.edu/supremecourt/text/536/304.
53. Hall v. Florida, 572 U.S. 701 (2014) (Kennedy, J., joined by Ginsburg, Breyer, Sotomayor and Kagan), argued March 3, 2014, decided May 27, 2014, https://www.law.cornell.edu/supremecourt/text/12-10882. Hall presented evidence that included an IQ test score of 71; the Florida statute required a score of 70 or below.
54. Moore v. Texas, 581 U.S. 1 (2017) (Ginsburg, J., joined by Kennedy, Breyer, Sotomayor and Kagan; Roberts, C.J., dissenting, joined by Thomas and Alito), argued November 29, 2016, decided March 28, 2017, https://www.law.cornell.edu/supremecourt/text/15-797.
55. Amy Howe, "Court sidesteps death-row IQ dispute," SCOTUSblog (May 21, 2026), https://www.scotusblog.com/2026/05/court-sidesteps-death-row-iq-dispute/. The vote description, the length and joinders of the opinions, the five IQ scores and the procedural history are from this report.
56. Hamm v. Smith, No. 24-872, 608 U.S. ___ (May 21, 2026) (per curiam), slip opinion, https://www.supremecourt.gov/opinions/25pdf/24-872_ec8f.pdf. The order dismisses the writ as improvidently granted. The quotations from Justice Sotomayor's concurrence and Justice Thomas's dissent are from the slip opinion; this lesson did not read Justice Alito's dissent line by line.
57. Roper v. Simmons, 543 U.S. 551 (2005) (Kennedy, J., joined by Stevens, Souter, Ginsburg and Breyer), argued October 13, 2004, decided March 1, 2005, https://www.law.cornell.edu/supremecourt/text/543/551.
58. Graham v. Florida, 560 U.S. 48 (2010), No. 08-7412, argued November 9, 2009, decided May 17, 2010 (Kennedy, J., joined by Stevens, Ginsburg, Breyer and Sotomayor; Roberts, C.J., concurring in the judgment; Thomas, J., dissenting, joined by Scalia and in part by Alito; Alito, J., dissenting), https://www.law.cornell.edu/supremecourt/text/08-7412. The quoted passage is from the syllabus.
59. Miller v. Alabama, 567 U.S. 460 (2012), No. 10-9646, argued March 20, 2012, decided June 25, 2012 (Kagan, J., joined by Kennedy, Ginsburg, Breyer and Sotomayor; Roberts, C.J., dissenting, joined by Scalia, Thomas and Alito), https://www.law.cornell.edu/supremecourt/text/10-9646.
60. Montgomery v. Louisiana, 577 U.S. 190 (2016), No. 14-280, argued October 13, 2015, decided January 25, 2016 (Kennedy, J., joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan; Scalia, J., dissenting, joined by Thomas and Alito), https://www.law.cornell.edu/supremecourt/text/14-280.
61. Jones v. Mississippi, 593 U.S. 98 (2021), No. 18-1259, argued November 3, 2020, decided April 22, 2021 (Kavanaugh, J., joined by Roberts, Alito, Gorsuch and Barrett; Thomas, J., concurring in the judgment; Sotomayor, J., dissenting, joined by Breyer and Kagan), https://www.law.cornell.edu/supremecourt/text/18-1259.
62. Rummel v. Estelle, 445 U.S. 263 (1980) (Rehnquist, J.), argued January 7, 1980, decided March 18, 1980, https://www.law.cornell.edu/supremecourt/text/445/263.
63. Solem v. Helm, 463 U.S. 277 (1983) (Powell, J.), argued March 29, 1983, decided June 28, 1983, https://www.law.cornell.edu/supremecourt/text/463/277. The quotation "no penalty is per se constitutional" is from the opinion text; the syllabus lists the three criteria.
64. Harmelin v. Michigan, 501 U.S. 957 (1991), argued November 5, 1990, decided June 27, 1991 (Scalia, J., announcing the judgment, with an opinion joined in part by Rehnquist, C.J.; Kennedy, J., concurring in part and in the judgment, joined by O'Connor and Souter), https://www.law.cornell.edu/supremecourt/text/501/957.
65. Ewing v. California, 538 U.S. 11 (2003) (O'Connor, J., announcing the judgment, joined by Rehnquist, C.J., and Kennedy; Scalia and Thomas, JJ., concurring in the judgment), argued November 5, 2002, decided March 5, 2003, https://www.law.cornell.edu/supremecourt/text/538/11.
66. Lockyer v. Andrade, 538 U.S. 63 (2003) (O'Connor, J., joined by Rehnquist, C.J., and Scalia, Kennedy and Thomas; Souter, J., dissenting, joined by Stevens, Ginsburg and Breyer), decided March 5, 2003, https://www.law.cornell.edu/supremecourt/text/538/63.
67. Glossip v. Gross, 576 U.S. 863 (2015), No. 14-7955, argued April 29, 2015, decided June 29, 2015 (Alito, J., joined by Roberts, Scalia, Kennedy and Thomas), https://www.govinfo.gov/content/pkg/USREPORTS-576/pdf/USREPORTS-576-863.pdf.
68. Bucklew v. Precythe, 587 U.S. 119 (2019), No. 17-8151, argued November 6, 2018, decided April 1, 2019 (Gorsuch, J., joined by Roberts, Thomas, Alito and Kavanaugh; Breyer, J., dissenting, joined in part by Ginsburg, Sotomayor and Kagan), https://www.law.cornell.edu/supremecourt/text/17-8151. The quotations are from the opinion text.
69. Nance v. Ward, No. 21-439 (U.S. June 23, 2022) (Kagan, J., joined by Roberts, Breyer, Sotomayor and Kavanaugh; Barrett, J., dissenting, joined by Thomas, Alito and Gorsuch), argued April 25, 2022, https://www.law.cornell.edu/supremecourt/text/21-439. This lesson could not confirm the U.S. Reports citation.
70. Kelsey Dallas, "The state of the death penalty at the Supreme Court," SCOTUSblog (June 2, 2026), https://www.scotusblog.com/2026/06/the-state-of-the-death-penalty-at-the-supreme-court/. The execution counts, the statement that the Court has not paused an execution since July 2024, the account of Boyd v. Hamm and the count of cases on the 2026-27 docket are from this report. This lesson could not confirm later events.
71. Estelle v. Gamble, 429 U.S. 97 (1976) (Marshall, J.), argued October 5, 1976, decided November 30, 1976, https://www.law.cornell.edu/supremecourt/text/429/97.
72. Rhodes v. Chapman, 452 U.S. 337 (1981) (Powell, J.), argued March 2, 1981, decided June 15, 1981, https://www.law.cornell.edu/supremecourt/text/452/337.
73. Wilson v. Seiter, 501 U.S. 294 (1991) (Scalia, J.), decided June 17, 1991, https://www.law.cornell.edu/supremecourt/text/501/294.
74. Hudson v. McMillian, 503 U.S. 1 (1992) (O'Connor, J.), argued November 13, 1991, decided February 25, 1992, https://www.law.cornell.edu/supremecourt/text/503/1.
75. Helling v. McKinney, 509 U.S. 25 (1993) (White, J., joined by Rehnquist, C.J., Blackmun, Stevens, O'Connor, Kennedy and Souter; Thomas, J., dissenting, joined by Scalia), argued January 13, 1993, decided June 18, 1993, https://www.law.cornell.edu/supremecourt/text/509/25.
76. Farmer v. Brennan, 511 U.S. 825 (1994) (Souter, J.), No. 92-7247, argued January 12, 1994, decided June 6, 1994, https://www.law.cornell.edu/supct/html/92-7247.ZO.html.
77. Hope v. Pelzer, 536 U.S. 730 (2002) (Stevens, J., joined by O'Connor, Kennedy, Souter, Ginsburg and Breyer; Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia), argued April 17, 2002, decided June 27, 2002, https://www.law.cornell.edu/supremecourt/text/536/730.
78. Brown v. Plata, No. 09-1233 (U.S. May 23, 2011) (Kennedy, J., joined by Ginsburg, Breyer, Sotomayor and Kagan; Scalia, J., dissenting, joined by Thomas; Alito, J., dissenting, joined by Roberts, C.J.), argued November 30, 2010, https://www.law.cornell.edu/supct/html/09-1233.ZO.html. This lesson could not confirm the U.S. Reports citation and did not read the dissents.
79. Kingsley v. Hendrickson, No. 14-6368 (U.S. June 22, 2015) (Breyer, J., joined by Kennedy, Ginsburg, Sotomayor and Kagan; Scalia, J., dissenting, joined by Roberts and Thomas; Alito, J., dissenting), argued April 27, 2015, https://www.law.cornell.edu/supremecourt/text/14-6368. The claim was brought under the Fourteenth Amendment's Due Process Clause. This lesson could not confirm the U.S. Reports citation.
80. City of Grants Pass v. Johnson, 603 U.S. 520 (2024), No. 23-175, argued April 22, 2024, decided June 28, 2024 (Gorsuch, J., joined by Roberts, Thomas, Alito, Kavanaugh and Barrett; Thomas, J., concurring; Sotomayor, J., dissenting, joined by Kagan and Jackson), https://www.law.cornell.edu/supremecourt/text/23-175. The reporter citation is confirmed in the Court's Hamm v. Smith slip opinion.
81. Idaho Constitution, art. I, sec. 6, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect6/. The text is quoted from the Legislature's page.
82. Idaho Code section 19-2903 (right to bail; limitations), https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH29/SECT19-2903/. History: added 2009, ch. 90; amended 2015, ch. 182.
83. Idaho Code section 19-2905 (definitions, Idaho Bail Act), https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH29/SECT19-2905/.
84. Idaho Criminal Rule 46 (bail or release on own recognizance), Idaho Supreme Court, https://isc.idaho.gov/rules-procedure/print/icr/46. The quotations from subsections (a), (c)(11) and (f) are from that page.
85. Idaho Code section 19-2716 (methods of execution), https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH27/SECT19-2716/. The page states that Idaho statutes are updated to the website July 1 following the legislative session; the history line lists amendments in 2023 (ch. 141), 2025 (ch. 36) and 2026 (ch. 225, two sections).
86. Idaho House Bill 37 (2025), https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2025/legislation/H0037.pdf. The bill text amends section 19-2716 to make the firing squad the first method listed.
87. Idaho Code title 67, chapter 52 (Idaho Administrative Procedure Act), https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH52/.
88. Idaho Capital Sun, "Idaho will be only state with firing squad as main execution method after governor signs bill" (March 12, 2025), https://idahocapitalsun.com/2025/03/12/idaho-will-be-only-state-with-firing-squad-as-main-execution-method-after-governor-signs-bill. The signing date, effective date (July 1, 2026), the 58 to 11 House and 28 to 7 Senate votes, the count of nine people on death row, and the Creech and procedure details are from this report.
89. Idaho House Bill 803 (2026), bill text as posted by a news outlet, https://idahonews.com/resources/pdf/9d3d55e3-5207-456f-b9d4-c95ce8417199-H0803.pdf. The text amends sections 19-2716 and 19-2716A. Votes, dates and session-law chapter: Idaho Legislature bill page for H0803.
90. Idaho Code section 37-2744 (forfeitures), https://legislature.idaho.gov/statutesrules/idstat/Title37/T37CH27/SECT37-2744/. The history line lists an amendment in 2026 (ch. 168, sec. 2).
91. Idaho Code section 67-2341 (public camping or sleeping; prohibitions), https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH23/SECT67-2341/. History: added 2025, ch. 248.
92. Idaho Capital Sun, "An Idaho law penalizes people sleeping in public spaces; advocates say it harms more than it helps" (July 31, 2026), https://idahocapitalsun.com/2026/07/31/an-idaho-law-penalizes-people-sleeping-in-public-spaces-advocates-say-it-harms-more-than-it-helps.