Chapter Nine

 The Rights of the Criminally Accused Part Two

Trials, Sentencing, and Punishment

Chapter Outline

A.  Overview 

B.  The Sixth Amendment

1. Original Language of the Amendment

2. Modern "Translation" of the Sixth Amendment

3. Essential Trial Rights 

4. Right to a Speedy Trial 

5. Right to a Public Trial 

6. Right to an Impartial Jury

7. Right to be Informed of Charges 

8. Right to Confront Witnesses

9. Right to Call Witnesses 

10. Right to Counsel

C.  The Eighth Amendment

1. Original Language of the Amendment

2. Modern "Translation" of the Eighth Amendment

3. Bail 

4. Fines

5. Cruel and Unusual Punishments

6. Sentences

7. Conditions During Incarceration

8. The Death Penalty

A. Overview

While Chapter Eight examined the Fourth and Fifth Amendments and how they govern investigations, searches and seizures, arrests, warrants, and interrogations, this chapter analyzes the Sixth and Eighth Amendments. This chapter will use the same three-step approach as Chapter Eight to maintain clarity and organization. As before, we will look at the original text of each amendment, examine a "translation" of the amendment into plain English, and review the leading Supreme Court cases that shape how these rights are interpreted today.

B. The Sixth Amendment 

1. Original Language of the Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”— U.S. Const. amend. VI

2. Modern "Translation" of the Sixth Amendment

In plain English, this means that defendants in criminal cases have the right to:

1. Trial procedures that guarantee fairness; 

2. A speedy trial; 

3. A public trial;

4. The right to an impartial jury; 

5. The right to be informed of charges against them; 

6. The right to confront witnesses against them;

7. The right to call witnesses in their own defense ;

8. The right to assistance of counsel, meaning the right to have a lawyer.

The plain language of these eight phrases may seem straightforward at first glance, but their meaning has evolved over more than two centuries. The Supreme Court has expanded, clarified, and at times narrowed their scope as new legal challenges have emerged. In doing so, the Court has revisited basic assumptions about criminal procedure and adapted constitutional protections to the modern criminal justice system.

3. Essential Trial Rights

Basic trial protections that guarantee fairness were developed long ago, and many of them were based on the Fourteenth Amendment’s Due Process Clause in addition to Sixth Amendment trial rights.  In Coffin v. United States (1895), the Supreme Court strongly articulated the presumption of innocence as a foundational principle of American criminal justice, though later decisions clarified that this presumption operates primarily through the reasonable doubt standard, rather than as a separate constitutional principle.  Another core protection is the duty of prosecutors to disclose evidence that may help the defendant. In Brady v. Maryland (1963), the Court held that due process requires prosecutors to provide the defense with any evidence that is favorable to the accused and material to guilt or punishment. 

The trend toward protecting the rights defendants continued in 1970 when the Supreme Court decided In re Winship (1970), where they held that the burden of proof rests entirely on the government, which must prove every element of a crime beyond a reasonable doubt, the highest standard of proof in our legal system. This means jurors must be firmly convinced of the defendant’s guilt based on the evidence, with no reasonable hesitation. This is a much higher standard than reasonable suspicion or probable cause.  Although the Coffin, Brady, and Winship rulings arise from the Fourteenth Amendment’s Due Process Clause, rather than the Sixth Amendment, the Supreme Court recognizes these principles as fundamental rights that are essential to a fair trial (Legal Information Institute, n.d.).

4. Right to a Speedy Trial 

The Sixth Amendment guarantees the right to a speedy trial, but the Constitution does not specify a set time period for when a trial must occur after arrest, nor does it define what “speedy” means. The Supreme Court offered guidance in Barker v. Wingo (1972) by creating a four-factor balancing test that considers the length of the delay, the reason for the delay, whether the defendant asserted the right, and whether the delay prejudiced the defendant. The Court also emphasized that a defendant may effectively waive the right to a speedy trial by failing to assert it or by agreeing to repeated delays. It is worth noting that defendants rarely insist on their right to a speedy trial unless they are incarcerated pending trial. Delays often benefit defendants more than prosecutors because witnesses may forget facts, move away, or become unavailable over time (Rubine, 1972; National Association of Criminal Defense Lawyers [NACDL], n.d.).

Although defendants may waive their right to a speedy trial, thousands do not, and it remains essential to safeguard this right to protect defendants from undue delay and to ensure the integrity of the justice system. In Strunk v. United States (1973), the Supreme Court ruled that dismissal of charges is the only proper remedy for a proven violation of the speedy trial right, and in Doggett v. United States (1992), the Court held that extremely long, government-caused delays can violate this right even when a defendant cannot show specific prejudice.

Recent data shows the need for speedy trials.  In 2024, the Vera Institute of Justice and the Prison Policy Initiative reported that approximately two-thirds of people held in jail nationwide are not yet convicted, representing roughly 400,000 to 500,000 individuals awaiting trial. While no comprehensive national statistics track how long people are held before trial in all states, a CalMatters investigation found that in California alone nearly 6,000 people were held in county jails for longer than one year without a conviction or any imposed sentence as of 2021 (Vera Institute of Justice & Prison Policy Initiative, 2024; Lewis, 2021).

5. Right to a Public Trial 

The right to a public trial is also guaranteed. Holding trials in secret creates the potential for governmental abuse. Yet, there are limits on this right. Although the general public may attend federal and state trials and the press may report on them, Federal Rule of Criminal Procedure 53, written in the 1940s, prohibits televising, photographing, or otherwise recording federal courtroom proceedings. As a result, even high-profile federal trials still rely on courtroom sketch artists. By contrast, all states except New York allow trials to be televised and/or photographed, and even New York allows audiovisual recordings in limited circumstances (Ballard Spahr, 2024).

One exception is that federal juvenile proceedings are not open to the public under 18 U.S.C. § 5038, which was first enacted in 1974 and requires confidentiality to protect the privacy and rehabilitation interests of minors. Most states have similar rules governing juvenile matters. Similar confidentiality rules also apply in criminal proceedings involving juveniles and in cases involving adoption, child custody, and parental fitness (Justia, 2025).

The Supreme Court further refined the limits of the public trial right in Waller v. Georgia (1984), a case involving the temporary closure of a court hearing to the public in order to prevent the disclosure of sensitive wiretap evidence that would have compromised an ongoing criminal investigation. The Court held that a courtroom may be closed to the public only in rare circumstances where there is an overriding interest supported by specific findings, and only for the portion of the proceedings where closure is necessary. The Court also required judges to consider reasonable alternatives first, such as protecting a witness’s identity or limiting what is disclosed, and to ensure any closure is no broader than necessary.

6. Right to an Impartial Jury

Defendants are also entitled to impartial juries. This does not mean a defendant must have a jury trial. Defendants may choose to waive this right. In Patton v. United States (1930), the Supreme Court held that a criminal defendant may waive the right to a jury trial only if the waiver is knowing, voluntary, and intelligent, and if both the judge and the government agree. Some defendants prefer a bench trial, where a judge decides the case, because it can move more quickly or because they fear juror bias based on the nature of the charges. 

For defendants who choose jury trials, the impartiality of jurors can be compromised through discriminatory jury selection practices. The Supreme Court has made clear that the right to an impartial jury requires juries to be selected from a fair and representative cross-section of the community.  In Strauder v. West Virginia (1880), the Court held that states may not exclude jurors on the basis of race, recognizing that systematic exclusion of Black citizens undermines equal protection and the fairness of criminal trials. Nearly a century later, in Taylor v. Louisiana (1975), the Court ruled that women cannot be systematically excluded from jury pools, emphasizing that a diverse jury pool is essential to fairness and public confidence in the justice system. Building on this principle, Batson v. Kentucky (1986) held that prosecutors may not use peremptory strikes, which allow attorneys to remove potential jurors without stating a cause, to exclude jurors solely on the basis of race. When challenged, prosecutors must provide a race-neutral explanation, further protecting defendants from discrimination in jury selection.

Excessive trial publicity can also compromise a defendant’s ability to be tried before an impartial jury. In Irvin v. Dowd (1961), widespread media coverage in a small Indiana community repeatedly referred to the defendant as a “mad dog killer,” and eight of the twelve jurors admitted they believed he was guilty before the trial began.  The Court overturned the conviction, stressing that jurors must be truly impartial. Two years later, in Rideau v. Louisiana (1963), the Court reversed a conviction after the defendant’s filmed jailhouse confession was broadcast on local television three times to thousands of viewers, ruling that such exposure created a presumption of prejudice and required a change of venue. The most dramatic example of this issue is Sheppard v. Maxwell (1966), where the highly sensationalized trial of Dr. Sam Sheppard, accused of murdering his wife, was conducted in a chaotic atmosphere. Reporters filled the courtroom, jurors were exposed to inflammatory press coverage, and the judge made little effort to control media influence. The Court found that the trial judge failed to protect Sheppard’s rights and overturned the conviction, emphasizing that courts must take steps such as sequestering the jury, changing the venue, or limiting media coverage when publicity threatens fairness. 

Decades later, in Skilling v. United States (2010), the Court clarified that pretrial publicity does not automatically violate the Sixth Amendment, holding that former Enron executive Jeffrey Skilling received a fair trial in Houston because juror screening procedures were effective and no actual bias was shown. Although no single case spells out a test for when publicity has compromised a defendant's right to an impartial jury, courts take precedent cases into account and look for either real proof that jurors were biased, or they look for situations where the publicity was so extreme that the law assumes the jury could not be fair, even without individual proof of bias.

7. Right to be Informed of Charges 

The Sixth Amendment also guarantees that anyone accused of a crime has the right to be informed of the charges against them.  In Cole v. Arkansas (1948), the Court held that a defendant must be clearly told what crime they are charged with and cannot be punished based on a different legal theory than the one formally charged. In Hamilton v. Alabama (1961), the Court explained that an arraignment, which is the first formal court hearing after arrest where charges are read aloud, is a “critical stage” of the criminal process. During arraignment, the judge informs the defendant of the charges, explains their rights, and usually considers bail. The accused must know exactly what they are being charged with and have a fair chance to defend themselves from the very beginning of the case.  

Although the U.S. Constitution does not set a specific time limit between arrest and arraignment, the Supreme Court held in County of Riverside v. McLaughlin (1991) that individuals arrested without a warrant must receive a judicial determination of probable cause within 48 hours, absent extraordinary circumstances. Many states have adopted similar timelines for defendants' first court appearances, called arraignments, because they are often held at the same time as probable cause determinations and bail hearings. While the 48-hour rule technically applies to probable cause determinations, requiring an arraignment within the same timeframe helps ensure timely compliance with constitutional safeguards (National Conference of State Legislatures, 2023).

8. Right to Confront Witnesses

The Sixth Amendment also guarantees the right to confront witnesses, including one’s accuser. The phrase, “In all criminal prosecutions, the accused shall enjoy the right to … be confronted with the witnesses against him,” is known as the Confrontation Clause. This ensures that defense attorneys can challenge the prosecution’s evidence through live cross-examination, which allows them to test a witness’s truthfulness and reliability, something that cannot be achieved by reviewing written or recorded statements. In Crawford v. Washington (2004), the defendant’s wife made a recorded statement to police describing a stabbing incident, but then she asserted her marital privilege and did not testify at trial. Prosecutors sought to use her recorded statement instead. The Supreme Court rejected this request, ruling that testimonial statements cannot be admitted unless the witness is unavailable and the defendant had a prior opportunity to cross- examine them.  

Four years later, in Melendez-Diaz v. Massachusetts (2009), the Court held that forensic lab certificates are testimonial and forensic analysts must testify in person if their results are used at trial. The Court reaffirmed this principle in Bullcoming v. New Mexico (2011), ruling that a substitute analyst who did not perform or observe the lab testing cannot testify in place of the actual analyst. Together, these cases ensure that if the prosecution relies on testimonial evidence, the defendant has a constitutional right to confront and cross-examine the actual person providing it (Donahue, 1998).

While the federal Constitution sets a minimum standard for confrontation, some states impose stricter requirements based on their state constitutions. In Maryland v. Craig (1990), the United States Supreme Court held that child abuse victims may testify outside the defendant’s physical presence through alternative methods, like through closed-circuit television, if a judge finds that in-court testimony would cause serious emotional trauma to the child. By contrast, in Commonwealth v. Johnson, (1994), the Massachusetts Supreme Judicial Court interpreted Article 12 of the Massachusetts Declaration of Rights to require true face-to-face confrontation, even for child witnesses. That provision states that “every subject shall have a right … to meet the witnesses against him face to face.”  Public outcry followed because the ruling raised fears that child victims could be retraumatized and successful prosecutions could become more difficult.  

In response, Massachusetts voters adopted a constitutional amendment in 1996, commonly referenced as Article XLIII of the Amendments, permitting alternative testimony methods for children if a judge finds by clear and convincing evidence that testifying in the defendant’s physical presence would cause serious emotional trauma. The amendment allows testimony by two-way electronic devices, meaning real-time audio-visual technology that lets the defendant see and hear the child witness and communicate with their attorney during testimony. Although this amendment preserves real-time cross-examination, it also requires additional steps, procedures, and advocacy for child victims in Massachusetts compared with the federal standard (Donahue, 1998).

9. Right to Call Witnesses 

Defendants have a Sixth Amendment right to call witnesses in their defense, a protection known as the right to compulsory process. In Washington v. Texas (1967), the Supreme Court struck down a Texas rule that barred defendants from calling a co-defendant as a witness, holding that the state cannot arbitrarily block testimony that could help the defense. In Chambers v. Mississippi (1973), a defendant was prevented by rigid state evidence rules from presenting testimony that another man had repeatedly confessed to the crime and from cross-examining him. The Supreme Court determined that the rule was unconstitutional because it stopped the defendant from presenting important and reliable evidence. Together, these cases make clear that defendants must have a meaningful and fair opportunity to present their version of events.

10. Right to Counsel

The Sixth Amendment also guarantees the right to the assistance of counsel, meaning the right to be represented by an attorney. In Johnson v. Zerbst (1938), the Supreme Court held that indigent defendants in federal criminal prosecutions have a constitutional right to appointed counsel, unless that right is knowingly and voluntarily waived. Later, in Betts v. Brady (1942), the Court considered whether this same right applied to state criminal prosecutions. Smith Betts, who could not afford a lawyer, was charged with a felony in a Maryland state court and requested court-appointed counsel. The trial judge denied the request.  Betts represented himself at trial and was convicted. Writing for the majority, Justice Owen Roberts held that although the Sixth Amendment guarantees the right to counsel, that right had not yet been incorporated through the Fourteenth Amendment to apply to the states. Instead, the Court concluded that appointed counsel was required in state felony cases only under “special circumstances,” such as when a defendant was illiterate, mentally impaired, very young, or otherwise unable to adequately defend themselves due to the complexity of the case.  This ruling meant many poor defendants in state courts went to trial without lawyers until Betts was overturned by Gideon v. Wainwright (1963).

Image 9.1

(Florida Memory Project, 1961)

B. The Sixth Amendment -continued 

10. Right to Counsel - continued

Gideon v. Wainwright (1963) is one of the most important criminal procedure decisions in U.S. history because it ensures that defendants in both state and federal courts who cannot afford a lawyer have the right to appointed counsel, fundamentally reshaping the fairness of the criminal justice system. Although Gideon initially applied only to felony cases, later decisions extended the right to counsel to any case in which incarceration is imposed (Argersinger v. Hamlin, 1972; Scott v. Illinois, 1979).  

To examine the Gideon case further, click here to watch an excellent video from the Annenberg Classroom series titled One Man Changes the Constitution. You can also click here to order the Gideon's Trumpet paperback book or click here to stream the movie. 

In addition to guaranteeing the right to counsel, the Sixth Amendment also requires that representation be effective. The phrase “ineffective assistance of counsel” refers to situations where a defense lawyer’s performance is so poor that it violates the defendant’s constitutional right to a fair trial. In Strickland v. Washington (1984), the Supreme Court established a two-part test to determine when counsel is ineffective: (1) the attorney’s performance must fall below an objective standard of reasonableness, and (2) there must be a reasonable probability that the outcome would have been different if the lawyer had provided competent representation. 

The Supreme Court made clear that the right to effective assistance of counsel also applies during the plea bargaining process. In North Carolina v. Alford (1970), the Court held that a defendant may plead guilty while still maintaining innocence, as long as the plea is voluntary and the defendant believes it is in their best interest. This practice is now known as an Alford plea, and defendants need guidance from counsel to negotiate this type of plea.  One year later, in Santobello v. New York (1971), the Court ruled that prosecutors must honor the promises they make in a plea agreement. If the government breaks its promise, the plea may be withdrawn or the defendant resentenced. 

Over time, plea bargaining has become the dominant method of resolving cases. It is currently used to resolve 80 to 90 percent of criminal prosecutions.  The Supreme Court has recognized the importance of competent legal representation during plea negotiations. In Hill v. Lockhart (1985), the Court held that a guilty plea may be invalid if poor legal advice caused the defendant to plead guilty. In Missouri v. Frye (2012), the Court ruled that defense attorneys must communicate formal plea offers to their clients because failing to do so may deprive a defendant of a favorable deal. Similarly, in Lafler v. Cooper (2012), the Court held that a defendant receives ineffective assistance of counsel if incorrect legal advice leads them to reject a plea offer and receive a harsher sentence after trial. Together, these cases ensure that plea bargains are voluntary, honored by prosecutors, and negotiated with competent legal guidance.

Honoring a defendant’s right to counsel also means respecting a defendant’s choice to represent themselves.  In Faretta v. California (1975), the Supreme Court held that a defendant has a constitutional right to self-representation if they knowingly and voluntarily waive the right to counsel. In practice, when a defendant asks to proceed without a lawyer, the judge conducts a detailed colloquy (series of questions and warnings to ensure the defendant understands the risks) before granting the request. Courts often appoint a public defender as “standby counsel” to assist with procedural or technical issues if needed, but the defendant remains in control of the defense. Later cases clarified limits to this right. In Martinez v. Court of Appeal of California (2000), the Supreme Court held that defendants do not have a constitutional right to represent themselves on appeal, just at trial.  And in Indiana v. Edwards (2008), the Court ruled that judges may require counsel for defendants who, although competent to stand trial, have severe mental illness that prevents them from managing their own defense. Although defendants who represent themselves rarely achieve favorable outcomes, the right to self-representation is firmly established and must be honored.

C.  The Eighth Amendment

1. Original Language of the Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
— U.S. Const. amend. VIII

2. Modern "Translation" of the Eighth Amendment

In plain English, this means that the criminal justice system cannot: 

1. Require excessive bail;

2. Impose excessive fines;

3. Inflict cruel and unusual punishment in general; 

4. Impose disproportionately harsh sentences;

5. Allow prison conditions that are inhumane, which includes denial of safety or basic medical care, intentional harm to inmates, or conditions that create serious risks to those incarcerated; or

6. Apply the death penalty arbitrarily or discriminatorily, or without constitutional safeguards.
   
   

Just like with the Sixth Amendment, the plain language of these Eighth Amendment guarantees may seem straightforward at first. However, the interpretation of these clauses has evolved significantly over time because the Supreme Court has considered a wide range of punishment and incarceration cases. 

3. Bail 

Courts cannot require excessive bail, meaning the amount may not be higher than what is reasonably necessary to ensure the defendant returns to court. In most jurisdictions, bail operates through a cash bail system, where defendants pay money as a guarantee that they will appear in court for future hearings and their trial. If the defendant appears for all scheduled matters, the money is refunded, but if not, the funds are forfeited. Some defendants use bail bonds, meaning they pay a commercial bail bond agent a non-refundable fee, often 10 percent of the bail amount, and the agent posts the full bail on their behalf (Justia, n.d.; Stack v. Boyle, 1951).

Many critics argue that the cash bail system is fundamentally unfair because in many instances, defendants with financial means can simply post bail and await trial at home, while those who cannot afford bail may remain incarcerated, even in scenarios where defendants have similar charges and criminal records.  Such critics would also contend that even though individuals in both scenarios are presumed innocent, wealth can determine pretrial freedom, and that certain people are jailed solely because they are poor, not because they pose a danger or are likely to flee. In response to these concerns, several jurisdictions, including New Jersey, Illinois, and Washington, D.C., have significantly limited or eliminated cash bail and instead rely on risk assessments and other conditions of release to ensure court appearance and public safety. The California Supreme Court ruled that judges must consider whether a defendant can afford bail and use non-monetary release conditions when possible. However, cash bail has never been deemed unconstitutional by the Supreme Court (Pretrial Justice Institute, 2020; Illinois Pretrial Fairness Act, 2021).

The Supreme Court has recognized that bail is not meant to punish someone before trial. Its sole purpose is to ensure the accused appears in court. If the government seeks to detain a person pretrial based on public-safety concerns, the Constitution requires the prosecution to conduct an evidentiary hearing, called a "dangerousness hearing" in many states, to show evidence that the defendant poses a danger to the community and that no release conditions can reasonably ensure public safety (Legal Information Institute, n.d.; United States v. Salerno, 1987).

4. Fines

Excessive fines are also prohibited by the Eighth Amendment. In many cases, the penalty for a criminal conviction, whether reached by plea or jury verdict, may include paying a fine instead of, or in addition to, incarceration. These fines are often fixed by statute or sentencing guidelines and may not take into account a defendant’s income or ability to pay (Cornell Law School Legal Information Institute, n.d.).  

In Austin v. United States (1993), the Court held that civil forfeitures can be considered punishment and therefore entitled to Eighth Amendment protection. In that case, the government sought to seize a defendant’s auto-body shop and mobile home for a small-scale drug offense, even though the maximum criminal fine for his conduct was far lower, illustrating how forfeiture could be used in a punitive and disproportionate way. In United States v. Bajakajian (1998), the Court ruled that a forfeiture violates the Eighth Amendment when it is “grossly disproportional” to the gravity of the offense.  In that case, the government attempted to confiscate $357,144 from a traveler who failed to report carrying the cash out of the country, even though the offense carried a maximum fine of $5,000.  And in Timbs v. Indiana (2019) the Court strengthened protection against excessive financial penalties by holding that the Excessive Fines clause applies to the states.

5. Cruel and Unusual Punishments

Cruel and unusual punishments are also prohibited by the Eighth Amendment, but the Constitution appears to allow many punishments that are merely unusual without involving any cruelty. Although no Supreme Court cases directly address purely unusual punishments, there have been numerous state cases where judges imposed unusual sentences on defendants. When these cases were appealed, higher courts declined to review them. For example, in Shaw v. State (Ga. Ct. App. 1992), a domestic violence offender was required to wear a sign admitting his acts of abuse. In People v. Letterlough (N.Y. Ct. App. 1995), a DUI offender was required to place “DWI” license plates on his vehicle. In United States v. Gementera (9th Cir. 2004), a mail thief was required to stand outside a post office wearing a sign stating, “I stole mail.”

Courts have struck down unusual or creative sentences when the primary purpose appears to be public humiliation, rather than rehabilitation. For example, in State v. Driver (Ohio Ct. App. 1992), the court invalidated a sentencing requirement that a DUI defendant place a bumper sticker on his car announcing his conviction.  In State v. Burdin (Tenn. 1996), a similar “yard sign” requirement for a DUI offender was overturned as punitive shaming, rather than a legitimate correctional measure. Unusual or creative sentences are evaluated on a case-by-case basis, and courts look to whether the punishment serves valid sentencing purposes, such as rehabilitation, deterrence, and public safety, rather than simply imposing humiliation or degrading the defendant.

Punishments that are solely cruel, or are cruel and unusual, are clearly banned by the Eighth Amendment. In Wilkerson v. Utah (1879), the Supreme Court held that execution by firing squad was constitutional, but emphasized that punishments such as torture or burning someone alive would violate the Eighth Amendment. More than a century later, in Hope v. Pelzer (2002), the Court ruled that handcuffing an inmate to a “hitching post” in the sun for hours without water or bathroom breaks constituted cruel and unusual punishment because it amounted to gratuitous humiliation and physical abuse without any legitimate correctional purpose.

6. Sentences

The Eighth Amendment also prohibits disproportionately harsh sentences. In Solem v. Helm (1983), the Supreme Court held that a sentence of life in prison without the possibility of parole for a minor, non-violent offense violated the Eighth Amendment’s proportionality requirement. Other proportionality cases existed before Solem, but this case significantly strengthened the doctrine.  In order to address concerns about sentencing disparities, Congress tried to make sentences more fair and uniform through the Sentencing Reform Act of 1984, which created the Federal Sentencing Guidelines, effective November 1, 1987. These guidelines established sentencing ranges based on the seriousness of the offense and the defendant’s criminal history.  They also required judges to consider aggravating and mitigating factors. 

A major turning point for the Federal Sentencing Guidelines came when the Supreme Court decided United States v. Booker in 2005. Before Booker, the federal guidelines were mandatory, meaning judges had almost no discretion and were required to impose sentences within a narrow range determined by guideline calculations. However, in Booker, the Supreme Court held that making the guidelines mandatory violated defendants’ Sixth Amendment rights because judges were increasing sentences based on facts that had not been found by a jury. To fix this constitutional problem, the Court ruled that the guidelines must be advisory, not binding.  Now, judges must still calculate and consider the guideline range, but they may impose a higher or lower sentence if they provide a reasonable explanation grounded in the law and sentencing factors. This decision reshaped federal sentencing by restoring judicial discretion.

One example of the discretion gained by federal judges after United States v. Booker can be seen in drug sentencing cases formerly governed by the Anti-Drug Abuse Act of 1986, which created a 100:1 sentencing disparity between crack and powder cocaine offenses. Although the Supreme Court did not invalidate that disparity, increased judicial discretion and criticism of the Act that arose after the Booker case helped fuel legislative reform. In 2010, Congress finally succeeded in reducing the sentencing disparity between crack and powder cocaine to 18:1 by enacting the Fair Sentencing Act of 2010, significantly lowering mandatory minimum penalties for crack cocaine offenses and eliminating the mandatory minimum for simple possession 

Additional cases regarding sentencing have clarified the principle that punishment must be proportionate to both the crime and the offender. In Ewing v. California (2003), the Supreme Court upheld California’s “three-strikes” law, holding that a lengthy prison sentence for a repeat offender did not necessarily violate the Eighth Amendment’s proportionality requirement. In Miller v. Alabama (2012), the Court ruled that mandatory life-without-parole sentences for juveniles are unconstitutional because youth must be considered as a mitigating factor and individualized sentencing decisions are required. In Montgomery v. Louisiana (2016), the Court made Miller retroactive, requiring states to provide resentencing or parole opportunities for individuals who had been sentenced to mandatory life-without-parole as juveniles. In short, the Supreme Court has made clear that punishment cannot be one-size-fits-all and must reflect both what someone did and who they are.

7. Conditions During Incarceration

When individuals become incarcerated, the Eighth Amendment does not allow inhumane prison conditions, denial of safety or basic medical care, physical or mental abuse, or conditions that create serious risks to those incarcerated.  A federal statute, 42 U.S. Code § 1983, is supposed to be the vehicle that allows inmates to sue for violations of their Eighth Amendment rights when prison officials, acting under color of state law, deny medical care, fail to ensure safety, or inflict abuse.  Even though thousands of prisoners file §1983 suits each year, most do not proceed past the screening process. Many suits are dismissed at early stages due to procedural barriers, limited access to legal resources, failure to meet technical standards, or because they lack merit. This means even valid constitutional claims often struggle to proceed (Hanson & Daley 1995; Schlanger 2022 ). 

Regardless, some § 1983 lawsuits are successful.  In Estelle v. Gamble (1976), an inmate injured his back while lifting heavy cotton bales doing prison work in Texas. After the injury, he repeatedly sought medical care, complaining of severe pain, chest pains, and difficulty moving. His condition worsened over time, and he later reported long-term pain and physical limitations as a result of the untreated injury. Although prison medical staff saw him several times, he was ordered to return to work, and his symptoms were not properly treated. Gamble ultimately filed a lawsuit claiming prison officials knowingly disregarded his medical needs. The Supreme Court held that deliberate indifference to a prisoner’s serious medical needs violates the Eighth Amendment. The Court explained further that negligence or medical malpractice is not enough to sustain a  §1983 suit.  Officials must know of and intentionally ignore a serious health risk for their conduct to be unconstitutional.

Just as the Eighth Amendment prohibits denying incarcerated individuals basic medical care and personal safety, it also forbids subjecting them to physical or psychological abuse. In Hudson v. McMillian (1992), a Louisiana inmate was handcuffed and shackled when two correctional officers punched and kicked him, causing bruises, swelling, loosened teeth, and a cracked dental plate. Although the record indicate these injuries were not severe, the Supreme Court held that the Eighth Amendment prohibits excessive force even when a prisoner does not suffer serious injury. What matters is whether the force was applied “maliciously and sadistically” to cause harm rather than to maintain order. 

Despite the risk of psychological harm, the Supreme Court has not categorically banned solitary confinement. However, the Court has held that extreme or prolonged isolation may violate the Eighth Amendment in certain circumstances.  In Hutto v. Finney (1978), the Supreme Court upheld limits on the use of solitary confinement in Arkansas by approving a 30-day cap at a facility where prisoners had been held in overcrowded, unsanitary cells without basic necessities. The Court emphasized, however, that this 30-day limit was not intended to be a rigid or universal rule and that longer periods of isolation may be permissible in certain circumstances. In Wilkinson v. Austin (2005), the Court ruled that inmates must receive due process protections before being placed in Ohio’s “supermax” solitary units because the conditions were extremely isolating and potentially indefinite. Solitary confinement remains highly controversial, with civil-rights advocates arguing that it should be abolished due to its psychological harm, while corrections administrators contend that it is necessary to manage individuals who pose serious safety risks to themselves, correctional staff, and other inmates.

Conditions that expose incarcerated individuals to a serious risk of future or ongoing harm are also prohibited under the Eighth Amendment.  In Helling v. McKinney (1993), the Supreme Court held that prisoners may challenge conditions, such as exposure to secondhand smoke, that pose serious health risks even if no injury has yet occurred. In Farmer v. Brennan (1994), the Court articulated the “deliberate indifference” standard, holding that prison officials violate the Eighth Amendment only when they are aware of and disregard a substantial risk of serious harm to an inmate. And in Brown v. Plata (2011), the Court required California to reduce extreme prison overcrowding after finding that it caused systemic failures in medical and mental health care resulting in unconstitutional conditions.

8. The Death Penalty

Cases interpreting the Eighth Amendment also hold that states cannot apply the death penalty arbitrarily, discriminatorily, or without constitutional safeguards. The death penalty currently exists at the federal level and in twenty-seven states as of January, 2026.  The jurisdictions that have it must follow specific constitutional requirements. To understand these safeguards, it is helpful to look at the applicable precedent cases. 

 In Furman v. Georgia (1972) the Supreme Court halted the death penalty nationwide because it found that the system for imposing capital punishment violated the Eighth Amendment. The Court emphasized that death sentences were being applied arbitrarily, with people convicted of similar crimes receiving vastly different punishments depending largely on chance. It also highlighted racial disparities, noting that Black defendants, particularly those accused of harming white victims, were disproportionately sentenced to death. In addition, the Court criticized the random and unpredictable nature of capital sentencing and concluded that states lacked meaningful procedural safeguards, allowing juries too much unguided discretion and enabling prejudice to influence life-or-death decisions. Although the Court did not say the death penalty itself was unconstitutional, it required states to adopt clear guidelines to fix existing problems before capital punishment could be imposed. As a result, all existing death-penalty statutes were temporarily invalidated.

Four years later, in Gregg v. Georgia (1976), the Supreme Court reinstated the death penalty. The Court ruled that capital punishment is constitutional if states provide procedural safeguards that prevent arbitrary or discriminatory sentencing. These safeguards include bifurcated trials, where the guilt phase and the sentencing phase are separated. This means the jury first decides whether the defendant is guilty or not guilty and then participates in a separate proceeding to determine the sentence. Jurors must also receive guided discretion in determining the appropriate penalty, including instructions on how to apply statutory aggravating and mitigating factors. In addition, states must provide automatic appellate review of death sentences and may not impose mandatory death penalties. Instead, juries must make individualized sentencing determinations based on the facts of each case and the characteristics of each defendant.

Following the Gregg case, the Supreme Court continued to place limits on when the death penalty may be imposed. They ruled that the death penalty cannot be used for crimes where the victim does not die, holding that capital punishment is disproportionate for offenses such as rape, even when the crime is violent and serious (Coker v. Georgia, 1977). The Court also barred executing individuals with intellectual disabilities, recognizing that diminished culpability makes the death penalty unconstitutional in such cases (Atkins v. Virginia, 2002). Additionally, the Court banned executing of people who were under 18 years old at the time of the offense, noting that juveniles have less maturity, greater potential for rehabilitation, and should not be punished with society’s most severe penalty (Roper v. Simmons, 2005). Together, these decisions make clear that the death penalty is reserved only for the most culpable offenders and the gravest crimes.

Cases after Gregg have clarified how the death penalty may be carried out. In Baze v. Rees (2008), the Supreme Court upheld Kentucky’s three-drug lethal-injection protocol, ruling that a method of execution is constitutional unless it poses a substantial risk of severe pain compared to feasible alternatives. In Glossip v. Gross (2015), the Court reaffirmed this rule, allowing Oklahoma to use the sedative midazolam despite concerns it might not fully prevent pain, holding that inmates must identify a workable alternative method. In Bucklew v. Precythe (2019), the Court upheld Missouri’s use of lethal injection for a prisoner with a rare medical condition that he argued would cause extreme suffering. The Court ruled the defendant failed to propose a viable alternative method. These cases underscore that challenges to execution methods must show both a significant risk of serious pain and a reasonable alternative method. 

Conclusion

Civil rights and liberties must be respected throughout the criminal justice process, including trial proceedings, sentencing decisions, punishment, and even the imposition of the death penalty. Understanding these protections is vital to ensuring that the criminal justice system operates with fairness and accountability. This concern is especially important when the individuals most affected, including those who are detained or incarcerated, are out of public view.

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