United States v. Bajakajian is the first and only case in which the Supreme Court has declared a criminal fine constitutionally excessive. There, the government sought the forfeiture of $357,144 from Hosep Krikor Bajakajian solely as a penalty for not declaring that amount to Customs when leaving the country. The Excessive Fines Clause applies to forfeitures of property, but does not apply to punitive damages in civil suits.
The Cruel and Unusual Punishments Clause regulates non-capital sentences far less closely than capital sentences. As a threshold inquiry, the Court will not inquire into a non-capital sentence unless the gravity of the sentence is disproportionate, even after deferring to the legislature. Next, the Court engages in a three-factor test, considering: the gravity of offense, an inter-jurisdictional comparison of the sentences for crime, and an intra-jurisdictional comparison of the sentence given. For example, the Eighth Amendment prohibits the imposition of the sentence of life without the possibility of parole on juvenile offenders if they did not commit homicide, or if automatically imposed by statute for homicide. Justices Antonin Scalia and Clarence Thomas have argued that the Court should not engage in Eighth Amendment proportionality review at all.
Capital sentences
The Cruel and Unusual Punishments Clause has more to say about capital sentences. First, the Clause entirely precludes the use of capital punishment for crimes other than murder. Even with murder, the defendant must personally kill, attempt to kill, or intend to kill. Second, the Clause entirely precludes the use of capital punishment against certain classes of defendants, such as the insane, the mentally retarded, juveniles at the time of the crime, and those who are not competent at the time of the execution. Third, the Clause prevents the arbitrary and discriminatory use of the death penalty. Nor can the death penalty be mandatory for those convicted of a certain offense. Aggravating factors must be found by a jury. Aggravating factors cannot be vague. The sentencing decision-maker must have the authority to consider all mitigating factors. Fourth, the Clause requires certain additional procedural rules in capital cases. For example, the jury must be permitted to consider a lesser included offense. Witherspoon v. Illinois held that jurisdictions could permit prosecutors for-cause strikes of jurors who would never impose the death penalty, but not jurors who were merely opposed to the death penalty. Such a jury is known as a death-qualified jury. Similarly, the defendant must be allowed to challenge for cause a juror who would impose the death penalty in every capital case.
Facts not found by a jury
provides: The Sixth Amendment to the United States Constitution provides: The Supreme Court has held that every fact that increases the maximum authorized sentence or minimum mandatory sentence must be named in the charging instrument, submitted to a jury, and proved beyond a reasonable doubt—whether or not statutory law labels that fact as an element of the offense or a sentencing factor. The only exception is the fact of prior conviction, which may be found by a judge. Because the relevant maximum is the authorized sentences that arises from the fact of conviction alone, without additional fact-finding, this principle invalidates mandatory sentencing guidelines that are the equivalent of increasing the maximum authorized sentence. This principle does not prevent the judge from deciding whether the sentences stemming from a multi-count indictment will be concurrent or consecutive based on judicial fact-finding. This rule was not retroactively applied in habeas cases. And, it is subject to the principles of harmless error analysis.
Double jeopardy
provides: The Double Jeopardy Clause, inter alia, prohibits multiple punishment for the same offense In Blockburger v. United States, the Supreme Court announced the following test: the government may separately punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislatively intends to depart; for example, Continuing Criminal Enterprise may be punished separately from its predicates, as can conspiracy.
