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The Eighth Amendment states:

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

Current issues[]

Significant changes are now occurring in the treatment of convicted felons for reasons having to do with both technological and social factors. These changes are likely to result in challenges to conventional understanding of Eighth Amendment protections against excessive bail or fines, and cruel and unusual punishments. The changes are driven by growing determination to reduce crime, particularly successive crimes of repeat offenders, and by the counter pressure of overcrowding in prisons. But social decisions in this area are becoming more complex and difficult because of: scientific research on criminal behavior patterns; the emergence of technological alternatives to imprisonment; and the growing possibility that biochemical and genetic research will identify determinants of (or strong forces on) criminal behavior that are beyond the control of the offender, and thus challenge assumptions underlying concepts of both punishment and rehabilitation.

The emphasis on reducing crime by effective law enforcement and punishment (or rehabilitation or, at a minimum, incapacitation) has led to the greater use of preventive detention. This, in turn, led to a constitutional challenge, using the principle of prohibition of excessive bail, recently resolved by the Supreme Court.

The pressure of overcrowding, which has been found by some courts to constitute cruel and unusual punishment, is leading many local jurisdictions to experiment with alternatives to prison. These include electronically monitored house arrest, at least for non-violent offenders who have a home and a job; and for some other offenders, chemical, psychological, and behavioral treatments aimed at behavior modification. Even surgical intervention — e. g., castration — has been proposed by one court as an alternative to prison.

Alternatives to prison maybe challenged as cruel and unusual punishment. Courts have generally interpreted “cruel” to mean the imposition of bodily pain, but have recognized that this definition may change over time. Or the alternatives may be challenged as invasions of the rights of prisoners, who are considered to retain some privacy rights. As these techniques have been used so far, they always require the consent of the subject and are considered a benefit or privilege for the offender, who would otherwise go to prison or remain there longer. Some, however, question the reality of informed consent when the alternative is imprisonment.

Finally, to the degree that alternatives to prison are desirable options for the offender, there are questions about availability on an equitable basis and hence potential constitutional issues of discrimination. These issues arise because at least some of the alternatives to prison, such as electronically monitored home arrest and privately operated prisons, require prisoners either to pay the costs of the program or to have steady employment and assets, such as a fixed abode with telephone connections. Thus, those without means are likely to be ineligible. Challenges based on this factor could become even more insistent if risks of incarceration become significantly worse because of the spread of AIDS in prisons.