Episode 112: The Eighth Amendment

On today's episode, the Eighth Amendment grants us the right for protection against excessive bail, fines, or cruel and unusual punishment. But how do we define cruel and unusual? And how has that definition changed over the course of history? Is it still "an eye for an eye" out there? Walking us through everything from unreasonable bail to capital punishment is John Bessler, Associate Professor of Law at the University of Baltimore and Visiting Scholar at Minnesota Law School.

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Civics 101
Episode 112: The Eighth Amendment

CPB: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. 

Introduction: [00:00:05] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting Separation of powers. Executive order. National security council. Civics -- Civics -- Civics 101. 

Virginia Prescott: [00:00:24] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of our democracy. The Eighth Amendment of the Constitution's Bill of Rights forbids excessive bail, fines, or cruel and unusual punishment. But how much is too much? And how has the meaning of those words changed since the days of the stockade, chain gangs and eye-for-an-eye codes of justice. Joining us for a lesson in crime and punishment is John Bessler who teaches at the University of Baltimore and at Georgetown Law. He's a visiting scholar at Minnesota Law School. John thanks so much for joining us. 

John Bessler: [00:00:57] Thank you for having me. 

Virginia Prescott: [00:00:58] What does the Eighth Amendment say? 

John Bessler: [00:01:00] Well the Eighth Amendment is just 16 words, very short but it's generated enormous controversy over the years and it says that excessive bail should not be required nor excessive fines imposed nor cruel and unusual punishments inflicted. So that's the the basic text of the Eighth Amendment. 

Virginia Prescott: [00:01:16] So I think the sticking point here is often defining what cruel and unusual means. But let's start with why both. 

John Bessler: [00:01:24] Well there's a lot of controversy actually about that. Some people view it as a kind of a unitary concept cruel and unusual meaning something sort of inhuman or inhumane. 

[00:01:35] But some scholars say well we should really read them separately and cruel implies kind of a moral concept of cruelty. How do you treat somebody and unusual is defined as it has been long defined in English law as sort of uncommon or rare. And so that has a more of a gaging what's happening right now with particular punishment to see whether or not it's unusual. And actually there's a lot of different variations on this so the U.S. Constitution's Eighth Amendment says that cruel and unusual punishments are prohibited. But some states and actually the Northwest Ordinance refer to cruel or unusual punishment. So it's kind of a conundrum for scholars to decide how to actually read that clause. And jurists and scholars have both made a lot of arguments about what it actually means and there's been a lot of litigation over it. 

Virginia Prescott: [00:02:26] What are some examples are hypotheticals of what is considered a cruel punishment? 

John Bessler: [00:02:31] The cruel unusual punishments prohibition actually comes from the English Bill of Rights which comes from the late 17th century. And at that time -- William Blackstone later refers to this, he's writing in the 18th century he's writing about the English prohibition on cruel and unusual punishments. And he talks about how there is limits to the arbitrariness of the law and that the cruel unusual punishments clause sort of prohibits these wholly arbitrary kinds of punishments. One of the earliest cases in English law was of a person named Titus Oates. Titus Oates was a religious figure and he had provided false testimony perjured testimony that resulted in a number of people being executed. 

[00:03:12] But because he was a member of the clergy at that time he was not subjected to the death penalty and he was ordered to be whipped and to be put in the pillory and to be in prison for life in England. And there was a big controversy in the English Parliament then after his sentence and after the English Bill of Rights went into effect in 1689. That his punishment, that is, Oates' punishment, was unchristian and was cruel and unusual. And so that was the debate at that time about whether somebody who had been put in the pillory, been subjected to whipping for his entire life, should that sentence be set aside essentially. 

Virginia Prescott: [00:03:53] So obviously the standards change over time. You know somebody's being drawn and quartered at the time of the writing of the Constitution or in a stockade or hanging or dragging around chained. Who makes that decision of what is cruel and unusual? 

John Bessler: [00:04:08] Well the in the American legal system the U.S. Supreme Court is the final arbiter of what the U.S. Constitution means and following the adoption and ratification of the 14th Amendment in 1868 that applied the Eighth Amendment against the states. So if the U.S. Supreme Court declares that a punishment is unconstitutional it applies not just against the federal government but also against the states. 

Virginia Prescott: [00:04:30] Why was this amendment put into the Bill of Rights? 

John Bessler: [00:04:34] Well the amendment was put in the Bill of Rights because it was seen as an important constitutional protection for people. So there was a big debate about whether or not the should U.S. even have a bill of rights because people thought well we have all these natural rights do we really need a Bill of Rights? 

[00:04:49] And Jefferson convinced Madison that we needed to have a bill of rights and this was seen as one of the most important protections for people in the United States is to have this protection against excessive bail, excessive fines and against cruel and unusual punishments. 

Virginia Prescott: [00:05:01] We have focused on cruel and unusual punishment so far, but that first part: excessive bail shall not be required nor excessive fines imposed. So bail the purpose of it is to keep you in the system, so you come back for trial. 

John Bessler: [00:05:17] That's right. But not everybody is eligible for bail so it's been ruled by the U.S. Supreme Court that if you're a danger and would pose a danger you may not be eligible for bail so you do see people who are charged with murder for example who are not released on bail. And the Supreme Court says that that's OK because we need to protect the community. Not everybody's eligible for bail. But if you are eligible for bail, the law and the Constitution states it should not be excessive bail. 

Virginia Prescott: [00:05:44] There has been a movement and legislation either proposed or passed just recently in Atlanta to reform the way bail and fines are paid. So what is at issue there? 

John Bessler: [00:05:56] Well I think what's at issue and what we are seeing is really a debate around the country on this issue is that if somebody is charged with a crime and they don't have the financial means to pay bail or to pay a fine then the consequences of that may be that the person remains in the system, remains incarcerated and obviously being incarcerated has a lot of consequences. So, you are unable to keep a job. 

[00:06:20] And so this is a know important debate that's going on right now about bail reform and people I think are paying attention to it and it's been an issue that really hasn't been in the news until very recently. 

Virginia Prescott: [00:06:30] How about for fines, is excessive or unusual based on the price or the actual amount or excessive based on money paid for a crime? 

John Bessler: [00:06:39] The courts are the ones that decide what is excessive and you can imagine it's a very subjective concept to decide what is excessive bail, what is excessive fines, and those are the kinds of decisions that judges have discretion to to set bail to set the level of fine and then ultimately some cases get appealed all the way up the U.S. Supreme Court and the Supreme Court would ultimately determine whether or not there was an excessive amount that was for example charge for up for a fine. 

Virginia Prescott: [00:07:14] Well I'm thinking of things that I've read about you know grossly overcrowded prisons really bad conditions inside of prisons or how prisoners were treated by Sheriff Joe Arpaio and his deputies. The question is do convicted criminals have all constitutional rights? 

John Bessler: [00:07:30] They don't have all constitutional rights obviously you're deprived of your liberty when you're convicted of a crime and you're sent to prison. You can't go out of the prison. You're stuck there. But Justice Kennedy for example has written that there are certain rights that prisoners are not deprived of one of those that he talks about is the right to human dignity. And so human dignity has been described as the touchstone of the Eighth Amendment by the Supreme Court itself. 

[00:07:53] And so when you have you know horrendous prison conditions the Supreme Court does step in sometimes and so for example in a case called Brown versus Plata in California the Supreme Court said that you know California prisons are incredibly overcrowded there's inadequate medical care for people, inadequate psychiatric care for people and for that reason declared that the current state of the prison conditions in California actually violates the the cruel unusual punishments clause. 

Virginia Prescott: [00:08:22] There is in American prisons a disproportionate percentage based on the population of minorities incarcerated. Is this considered an Eighth Amendment issue? 

John Bessler: [00:08:33] Well it is. I mean I think for me it is certainly the U.S. Supreme Court in a death penalty case called McCleskey versus Kemp actually rejected reliance on use of statistics to prove that there was an Eighth Amendment violation and -- or equal protection violation of the Constitution based upon those statistics which showed that those who kill whites are much more likely to be executed than those who kill blacks for example. But the equal protection clause which I should mention is part of the Fourth Amendment -- the 14th Amendment guarantees equal protection of the laws. And from my research I discovered that the 14th Amendment was actually intended to constitutionalize the Civil Rights Act of 1866 and that act required like punishments between blacks and whites and we just simply haven't seen that in the administration of the death penalty certainly we see that there's study after study shows that those who kill whites are much more likely to get the death penalty than those who kill blacks. 

Virginia Prescott: [00:09:30] And the Eighth Amendment is primarily discussed in context of the death penalty. So when we talk about it, and how it affects us and our culture in society today is it really about capital punishment? 

John Bessler: [00:09:42] It's not entirely by capital punishment but that's where I think the public attention has been with respect to the battle over the meaning of the Eighth Amendment but it doesn't say in the Eighth Amendment that it only applied with certain punishment, it applies any kind of punishment. So a legislature can enact a punishment but the punishment cannot be itself cruel and unusual and so we have seen though a lot of litigation over capital punishment and that's really the modern era of capital punishment really begins at least before the U.S. Supreme Court in the 1970s. So in a case called Furman versus Georgia in 1972 the Supreme Court declared in a six sentence per curium opinion by the court that the the use of the death penalty violates the Eighth and 14th Amendment of the Constitution. And what happened then was over 30 states reenacted death penalty statutes and in 1976 the Supreme Court declared that the death penalty was not unconstitutional in Gregg versus Georgia. And so you have a situation now where the Supreme Court has been taking up issues relating to capital punishment but not really getting at the core of whether the penalty itself is unconstitutional so the Supreme Court has declared the death penalty unconstitutional for the insane, for juveniles, for those with intellectual disabilities, for those who played maybe a minor role in a particular crime. And so the Supreme Court is kind of tinkering around the edges with respect to the death penalty but hasn't addressed, again, like it did in the 1970s the core issue of whether the death penalty itself is actually a cruel unusual punishment. 

Virginia Prescott: [00:11:18] When does the Eighth Amendment apply and when doesn't it? 

John Bessler: [00:11:22] The Eighth Amendment Applies in a time that there is a punishment imposed. If it's imposed by the federal government, Eighth Amendment is potentially applicable to judge whether that punishment's unconstitutional. Same thing is true at the state level because of the 14th Amendment applying the eighth Amendment against the states. There are some areas where the Eighth Amendment does not reach. And so there was a case actually the Ingraham case which said that corporal punishment in schools is something that the Eighth Amendment was not designed to deal with. Now that's interesting because the like in South Africa the Constitutional Court there has actually outlawed corporal punishment within schools. So there's a difference in how different courts around the world treat that particular issue. But there's also of course other laws that deal with that issue. And so you know if somebody a school were to use corporal punishment that could be something that they could be sued for. And in court using other kinds of tools other than the Eighth Amendment but the Eighth Amendment applies to review decisions and finds those willing to bail and those relating to punishments in general. 

Virginia Prescott: [00:12:26] John Bessler, Are there any issues that we haven't talked about that you think are going to be litigated in the future perhaps based on Eighth Amendment? 

John Bessler: [00:12:34] Well I think one of the issues that you'll see is the Supreme Court's already declared that the execution of the intellectually disabled to be unconstitutional. I would expect that you might see the court take up a case at some point about those with severe mental illness. Might also be an issue that you might see. 

[00:12:52] I also think that there's going to be a continual sort of evolution on this issue because the standard that the Supreme Court itself has used since 1958 to interpret the Eighth Amendment is what's called the evolving standards of decency of a maturing society. And so as the as the world changes as American culture changes the standard that the court has used for decades actually invites the court to reassess whether or not particular punishments are appropriate. And right now you see Europe is already a death penalty free zone. There's actually two protocols in Europe that bar the use of the death penalty in peacetime and in wartime actually. South Africa's Constitutional Court declared the death penalty unconstitutional back in the mid 90s. And you have countries like Rwanda, Mongolia that have gotten rid of the death penalty. And so the U.S. is really in terms of a highly industrialized Western countries really alone in this. Japan still uses death penalty occasionally but it comes from a different cultural perspective than we do. So the place where we got the cruel unusual punishments clause from England no longer uses the death penalty and as long abandoned the death penalty. And so I think there will be a discussion at some point about whether or not the death penalty is appropriate before the U.S. Supreme Court again. Justice Breyer and Justice Ginsburg have actually asked for a full briefing on that issue. There is simply not enough votes yet to grant cert on that issue. You need four votes on the Supreme Court to grant cert, to grant review of the case. But once those four votes are there I think the court will eventually take up this issue and we'll have another discussion before the U.S. Supreme Court about this. 

[00:14:23] And it will be informed I think by the increasing arbitrariness of the death penalty along with the -- the racial discriminations. Those issues I think are still appropriate and ripe for the Supreme Court to take up again. 

Virginia Prescott: [00:14:37] John Bessler he's associate professor of the University of Baltimore, adjunct professor at Georgetown Law School and visiting scholar at the Minnesota Law School. A lot of credits there and thank you so much for joining us. 

John Bessler: [00:14:49] Thank you. 

Virginia Prescott: [00:14:50] This episode of Civics 101 was produced by Ben Henry and Hannah McCarthy. Executive producer is Erika Janik. Our music is from Broke for Free. If you'd like to know more about unusual punishments from the pillory the ducking stool, check out our Extra Credit newsletter. You can sign up at civics101podcast.org. And that's the place to submit your questions about how our democracy works either by e-mail or send us a voice memo. Again that civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio. 


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