Section 12.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  The court may dispense with bail if reasonably satisfied that the defendant or witness will appear when directed, except for a defendant charged with an offense punishable by life imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]




  A proposal of the 1978 Constitutional Convention deleted the former section 12, which read:  "No person shall be disqualified to serve as a juror because of sex."  This deletion appears to be one of the unspecified changes submitted for ratification under Question 34.  On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.


Law Journals and Reviews


  State v. Kumukau:  A Case for the Application of Eighth Amendment Proportionality Analysis.  13 UH L. Rev. 577.

  Risky Business:  Assessing Dangerousness in Hawai‘i.  24 UH L. Rev. 63.


Case Notes



  Section also protects persons from unreasonable or arbitrary denial of bail.  64 H. 527, 644 P.2d 968.

  Judicial discretion provided for in section applies only during pre-conviction stage.  66 H. 82, 657 P.2d 464.

  Cited:  56 H. 447, 539 P.2d 1197.


Cruel and unusual punishment.

  See also notes to U.S. Const. Amend. 8.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Given heinous character of offenses committed and primacy of retributive, incapacitative, and deterrent objectives, prescribed punishment not so disproportionate to proscribed conduct and of such duration as to shock conscience of reasonable persons or outrage moral sense of the community.  83 H. 335, 926 P.2d 1258.

  Not violated by ninety-day suspension of driver's license under §291-4 for drunken bicyclist where:  (1) no showing that disparity of risk between drunken bicyclists and drunken automobile drivers is so great; and (2) suspension not disproportionately onerous compared to more serious crimes in same jurisdiction and for the same offense in different jurisdictions.  87 H. 249, 953 P.2d 1347.

  Not violated by trial court's refusal to find strong mitigating circumstances pursuant to §706-606.5(4) (1998) and imposition of concurrent mandatory minimum ten-year terms where defendant could have reasonably been deemed to pose a danger to society, more serious crimes by repeat offenders may be punished in Hawaii by longer mandatory minimum terms, and other jurisdictions permitted significantly lengthier sentences for repeat offenders.  93 H. 87, 997 P.2d 13.

  Registration requirements under chapter 846E not cruel and unusual punishment under this section as registration requirements are not so punitive in nature as to overcome legislature's remedial purpose.  105 H. 222, 96 P.3d 242.

  As imposition of one-year term of probation, subject to condition that defendant undergo sex offender evaluation and treatment, for tying up and hitting nephew with belt (1) fell within the range of punishment prescribed by the applicable statutory provisions, (2) did not shock the conscience of reasonable persons, and (3) did not outrage the moral sense of the community, the family court did not violate this section by imposing this sentence.  107 H. 117, 111 P.3d 12.

  Given the destructive, deceitful, and wasteful, albeit nonviolent, character of defendant's offenses and the primacy of the retributive, incapacitative, and deterrent objectives, five consecutive ten-year terms of imprisonment did not reflect a plain and manifest abuse of discretion on the part of the trial court; such a sentence was not so disproportionate to defendant's crimes nor of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community, in light of the developing concepts of decency and fairness.  111 H. 267, 141 P.3d 440.



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