Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.

History

Sources

1884 Proposed Montana Constitution

Article 1, Section 20: That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Mont. Const. of 1884, art. I, § 20, available at https://courts.mt.gov/portals/189/library/docs/1884const.pdf.

1889 Montana Constitution

Article III, Section 20: Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted. Mont. Const. of 1889, art. III, § 20, available at https://courts.mt.gov/portals/189/library/docs/1889cons.pdf.

United States Constitution, Bill of Rights, Eighth Amendment

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

Drafting

Bill of Rights Committee Proposal: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal at 622, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf

Bill of Rights Committee Proposal Comments: The committee voted unanimously that this section be retained unchanged. It is thought that the section provides the judiciary and the legislature adequate flexibility to apply the principle that there shall not be excessive bail, excessive fines, or cruel and unusual punishments. No delegate proposals were received on this section. Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal Comments at 640, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf.

Floor Debate

Delegate Sullivan: “Mr. Chairman, I move that when this committee does rise and report, after having had under consideration Section 22 of Proposal I, that It recommends the same be adopted. The Committee voted unanimously that this section be retained unchanged. It is thought that the section provides the Judiciary and the Legislative adequate flexibility to apply the principle that there shall not be excessive bail, excessive fines, or cruel and unusual punishments. No delegates proposals were received on this provision. Mr. Chairman.” 5 Verbatim Transcript 1771 (Mar. 9, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf.

Adoption

All delegates voted “Aye”, none opposed. Unanimously passed by the Convention on March 9, 1972. 5 Verbatim Transcript 1771 (Mar. 9, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf.

Ratification

Article II, § 22 was ratified by the people of Montana as part of the Proposed 1972 Constitution. The 1972 Voter’s Pamphlet noted that Section 22 is “[i]dentical to the 1889 Constitution.” The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet), available at https://www.umt.edu/media/law/library/MontanaConstitution/Miscellaneous%20Documents/Const%20VIP.pdf

Interpretation

Case Law

Cruel and Unusual Punishment

Walker v. State: The Court found that the dignity provision (Art. II, § 4) of the Montana Constitution can be read together with the cruel and unusual punishment provision of Article II, Section 22 of the Montana Constitution to provide state citizens greater protections from cruel and unusual punishment than those provided by the federal constitution because the federal constitution does not expressly provide for the right to human dignity. 2003 MT 134, ¶ 73, 316 Mont. 103, 68 P.3d 872. The Court held that most cruel and unusual punishment questions implicating Article II, Section 22 can be referenced to that section alone, but that in “certain instances Montana’s constitutional right to individual dignity (Article II, Section 4) is also specially implicated” the Court must consider the two provisions together. Id. ¶ 75. The Court found that a behavior modification plan instituted by a Montana prison on a prisoner caused his serious mental illness to be greatly exacerbated and thus “deprived him of the basic necessity for human existence.” Id. ¶ 82 Therefore, after reading Article II, Sections 4 and 22 together, the Court held that the behavior modification plan and the prisoner’s living conditions “constitute[d] an affront to the inviolable right of human dignity possessed by the inmate and that such punishment constitutes cruel and unusual punishment when it exacerbates the inmate’s mental health.” Id. ¶ 84

State v. Rickman: The Court applied the United States Supreme Court’s holding that the cruel and unusual punishment clause of the Eighth Amendment bans sentences that are grossly disproportionate to the crime for which the defendant is convicted to Rickman’s claim that his sentence violated both the 8th Amendment and Article II, Section 22 of the Montana Constitution. 2008 MT 142, ¶ 15, 343 Mont. 120, 183 P.3d 49. The Court stated the general rule in Montana is that sentences within the statutory maximum guidelines do not violate Article II, Section 4, but that there is an exception to the general rule when “a sentence is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of justice.” Id. The nature of the crime committed is a weighty factor in a gross disproportionate analysis. Id. ¶ 17. Additionally, the Court affirmed that retribution is a component of punishment, and a sentencing judge may consider this during sentencing. Id. ¶ 25-17.

Death Penalty

State v. McKenzie: The death penalty does not violate Article II, Section 22 of the Montana Constitution. 177 Mont. 280, 581 P.2d 1205 (Mont. 1976)

Vernon Kills On Top v. State: However, the imposition of a death sentence must be reviewed for compliance with proportionality and individualized treatment requirements set forth by the United States Supreme Court in Enmund v. Florida and each case must be reviewed on its facts to ensure the death penalty is not disproportionate to the degree of defendant’s culpability for the victim’s death. 279 Mont. 384, 928 P.2d 182 (Mont. 1996).

Excessive Fines

State v. Johnson: The Court coextensively interprets the Eight Amendment’s Excessive Fines Clause and Montana’s Excessive Fines Clause because the two provisions are nearly identical. 2018 MT 277, ¶ 25, 393 Mont. 320, 430 P.3d 494. Criminal restitution is not within the purview of Article II, Section 22 because the primary purpose of criminal restitution is remediation, rather than punishment. Id. ¶ 36-37.

Excessive Bail

City of Billings v. Layzell: the Court held that Montana courts are constrained in setting bail by the eleven factors listed in § 49-9-301, MCA to ensure that bail is not excessive under the Eighth Amendment of the U.S. Constitution and Article II, Section 22 of the Montana Constitution. 242 Mont. 145, 149, 789 P. 2d 221, 223 (Mont. 1990). A trial court has the discretion to determine bail as long as the amount of bail is within those restrictions, and the bail amount will be upheld if reasonable. Id. The Court also ruled that a trial court “may not set bail which effectively guarantees pretrial detention as a means of punishing an indigent defendant.” Id.

Legislation

Montana Code Annotated Title 46, Chap 9. Bail:

• Part 1. Definition and Availability of Bail
• Part 2. Bail – General Procedural Provisions
• Part 3. The Amount of Bail
• Part 4. Furnishing Bail
• Part 5. Conditions of Bail - Violation Thereof

Montana Code Annotated Title 46, Chapter 18. Sentence and Judgement:

• Part 1. Policy and Procedure
• Part 2. Form of Sentence
• Part 3. Death Penalty
• Part 4. Factors that Reduce Sentence
• Part 5. Persistent Felony Offenders
• Part 6. Procedure After Conviction or Sentencing
• Part 7. Jail Work Release Program
• Part 8. Effect of Conviction
• Part 9. Appellate Review of Legal Sentences
• Part 10. Home Arrest
• Part 11. Expungement of Records

Commentary

Montana Constitutional Convention Study

Excessive Bail: “The [1889] Montana Constitution contains two provisions relating to bail. Article III, Section 20 provides: ‘Excessive bail shall not be required . . . .’ This provision is identical with the federal Eighth Amendment. The Montana Constitution also goes beyond the explicit wording of the federal document in Article III, Section 19: ‘All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.’ The rights reflected in those provisions have deep historical roots. The old English common law extended bail in all cases — partly because of the costs and difficulties of detention. Exceptions gradually were introduced until, by the mid-eighteenth century, bail was not allowed wherever an offense was of very substantial nature. This was at the time when there were in excess of 160 capital crimes; thus, offenses which were bailable were few and minor. In 1689, the English Bill of Rights announced the principle that bail must be reasonable; in this enactment. Parliament charged the ousted king with infringing the liberties of citizens by denying reasonable bail. ‘There are very good reasons for allowing a person accused of a crime to be free on reasonable bail.’ As stated by Chief Justice Vinson in a 1951 Supreme Court case, ‘this traditional right to freedom permits the unhampered preparation of a defense.’ Further, ‘unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Society may be entitled to assure that the accused will be present at his trial; however, if an accused is presumed innocent until convicted, he stands on the same footing as other citizens in society and does not belong in jail.’ Another rationale, stated in an old Supreme Court case, is: The statutes of the United States have been framed upon the theory that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment 'or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error. For these and other reasons, provisions on bail have found their way into nearly every constitutional list of procedural safeguards. The Montana constitutional provisions are supplemented by Title 95, Chapter 11 of the Revised Codes of Montana. Included in these statues are provisions for the defendant's release on his own recognizance, for overriding the presumption of entitlement to bail, for bail after conviction (largely discretionary) , for determining the amount of bail and so on. ” Montana Constitutional Convention Study No. 10, Bill of Rights, 152-154, (1972) (footnotes omitted).

Cruel and Unusual Punishment: “The Montana Constitution [Art. Ill, Sec. 20] contains a prohibition on inflicting ‘cruel and unusual punishments.’ The federal Constitution's Eighth Amendment contains a similar provision: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ The prohibition against cruel and unusual punishments is based on the long-standing principle of English law that the punishment should fit the crime. That is, the punishment should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged . The principle was announced in 1553 in a statute which pointed out that the security of the body politic depended less upon the fear of law with harsh penalties than upon the respect the subject felt for the government. The statute noted that laws without harsh penalties were more often obeyed and respected than their more rigorous counterparts. Blackstone, in his Commentaries , stated that the right to be free from cruel or unusual punishments ‘had a retrospect to some unprecedented proceedings in the court of King's bench, in the reign of King James the Second .’ The core idea expressed in this type of provision is the concern that the law be humane and that punishments sanctioned by the law do not shock the conscience of society--that they be proportionate to the offense for which the defendant was convicted. It is interesting that during the nineteenth century, the cruel and unusual punishment type of provision was thought to be obsolete; a similar criticism was noted above concerning Montana's constitutional provision on rehabilitation and prevention. However, in 1910, the U.S. Supreme Court announced that the ‘cruel and unusual punishment’ provision was alive, and that it was ‘not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ Since then, it has not become much easier to determine what constitutes a cruel and unusual punishment. Examples of interesting decisions under the Eighth Amendment include a Supreme Court case declaring that a statute which made it illegal to be addicted to drugs was cruel and unusual punishment. The court ruled that addiction was an illness — moreover, one which may be contracted innocently or involuntarily--and that therefore one addicted needed treatment not criminal conviction. The court also assumed that the Eighth Amendment was applicable to the states and that it could therefore be used to limit the states' power to punish certain crimes in certain ways. It does not appear that Montana courts have had occasion to adjudicate significantly in this area.” Montana Constitutional Convention Study No. 10, Bill of Rights, 179-186, (1972).

Attorney General Opinions

City with Gen. Gov’t Powers May Not Establish a Civ. Penalty and Collection Sys. for Motor Vehicle Parking Offenses, 40 Mont. Op. Att’y Gen. 31, 1984 Mont. A. G. (Jan. 18, 1984).

Law Review Articles

Matthew O. Clifford & Thomas P. Huff, Some Thoughts on the Meaning and Scope of the Montana Constitution’s “Dignity” Clause with Possible Applications, 61 Mont. L. Rev. 301, 325-32 (2000).

Amanda K. Eklund, The Death Penalty in Montana: A Violation of the Constitutional Right to Individual Dignity, 65 Mont. L. Rev. 135 (2004).

Steven Gow Calabresi, Individual Rights Under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States?, 94 Notre Dame L. Rev. 49, 116-25 (2018).

James R. Acker & Elizabeth R. Walsh, Challenging the Death Penalty Under State Constitutions, 42 Vand. L. Rev. 1299 (1989). William W. Berry III, Cruel State Punishments, 98 N.C. L. 1202 (2020).