The Eighth Amendment | National Constitution Center | Khan Academy

The Eighth Amendment | National Constitution Center | Khan Academy

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– [Kim] Hi, this is Kim from Khan Academy. Today, I’m learning about
the Eighth Amendment to the US Constitution, which prohibits the government from imposing excessive fines and bail or inflicting cruel and unusual punishment on individuals accused
or convicted of a crime. But what counts as excessive
or cruel and unusual? To learn more, I sought out the help of two experts on the Eighth Amendment. John Stinneford is the assistant director of The Criminal Justice Center at the University of Florida Law School. John Bessler is an
associate professor of law at the University of Baltimore Law School. So, Professor Bessler, why were the Framers so keen to include the Eighth Amendment? Why did they wanna protect
these rights in particular? – [Bessler] Well, these
rights were actually enshrined in the English Bill of Rights of 1689. And so when the Americans got in the dispute with Great Britain, they decided they wanted
to have the same rights that Englishmen had. And so it was not too surprising that when George Mason actually wrote the Virginia Declaration
of Rights in 1776, that he looked to English law to see what rights the English had because he wanted exactly the same rights. And so these 16 words
in the Eighth Amendment have been subject to a lot of
controversy over the years. But I think one of the reasons that the Founders wanted this was that, like the English would have problems with the Monarch imposing
excessive bail, excessive fines, inflicting cruel and unusual punishments, the Founders also knew that was a risk that there was abuse from the government in the United States and so they also wanted those rights. Because originally in the Constitution, these rights were not protected against. And the Bill of Rights
was ratified in 1791 which ensured that there’d be protections against these cruel
and unusual punishments and excessive bail and excessive fines. – [Stinneford] If you look
at the Eighth Amendment, there’s three clauses. The excessive bail clause, the excessive fines clause, and the cruel and unusual
punishments clause. And these all have one thing in common which is that these are
all penalties essentially that the government inflicts on people usually as the result of
either being accused of crime or of being convicted of crime. So if you’ve been arrested,
you’re waiting for trial, very often your only way to
get out of jail before trial is to make bail, and of course after you’ve been convicted the court might impose a fine on you or some other kind of punishment. So the Eighth Amendment is designed to prevent the government from doing things that are excessive. When the government punishes a person, that’s the most coercive
thing the government does short of war. Other than shooting you in battle, picking you up and
throwing you in a jail cell is about as bad as it gets. And so the Framers wanted to make sure that we had a constitutional protection when it comes to criminal punishment. – [Kim] So, in a lot of
cases in the Bill of Rights, you see the Framers reacting
to some historical evil that they hoped to prevent. For example, the Third Amendment says you can’t quarter soldiers
in private citizens homes because that had been such
an important tipping point in the American Revolution. Was there something that
the Framers had in mind as a particular historical evil
that they wanted to prevent? – [Bessler] Well, there
was some historical evils. The English Bill of Rights
went into place in 1689, and when that went into place it was actually a controversy in England around a person by the
name of Titus Oates. Titus Oates was somebody who
had made false accusations, Oates had committed perjury, resulted actually that allegation in the execution of 15 Catholics. And the plot that he had alleged was one to assassinate
the King of England. – [Stinneford] The question is
what to do with Oates, right? Because as a moral matter,
he’s about as bad as it gets. In fact, in 2005, English
historians voted him the worst Briton of the 17th century and the third worst Briton
of the last thousand years or something like that. So a very bad guy. You can think of him as
sort of a serial killer. But the problem is that the
actual crime he committed was the crime of perjury. And even though his perjury resulted in the deaths
of many innocent people, nonetheless he could only
be convicted of perjury which at the time was a misdemeanor, which meant that he could not
be executed for his crime. So when it came time for his sentencing, the judge, Chief Justice Jeffreys, who was a famous hanging
judge from English history, says to Oates, “Well, Oates, we can’t take your life, “we can’t take your limb, “but we have something
special prepared for you.” And it turns out that what
they had prepared for him was, number one, a huge fine. They fined him like 2,000 marks. They sentenced that he be
dragged across the city of London while being flogged. He was dragged from Aldgate to
Newgate while being flogged. And then two days later, just as the scabs were
starting to form on his wounds, he’s dragged back across
the city of London from Newgate to Tyburn
again while being flogged. Many people think the hope was that he would die from the flogging but, like a cockroach in a
nuclear war, he survived. – [Bessler] This punishment was actually a very severe punishment. And after the English Bill
of Rights was promulgated, the Titus Oates punishment was challenged. And some of the members
of the House of Lords actually called the punishment barbarous, inhuman and unchristian and contrary to the
English Bill of Rights. So there was no precedent to warrant the punishments of whipping and committing to prison for life for the crime of perjury. This punishment was eventually remitted in the sense that Oates
was later released. – [Stinneford] Although the House of Lords refused to vote to suspend
the judgment against Oates ’cause they hated his so much. They said so ill a man shouldn’t get the benefit of any relief. But they all agreed that the punishment was cruel and unusual. And what’s interesting is in the debate they say things like, this punishment is contrary
to law and ancient practice. It is without precedent and it’ll be a bad
precedent for the future. So, in other words, it’s cruel, and the way we know it’s cruel is because it’s so much harsher than has previously been inflicted for the crime of perjury. So the Oates case shows us that when the words cruel
and unusual were first used, they were used to describe punishments that are harsher than the
common law would permit, or harsher than longstanding
prior practice would permit. And this means, among other things, that the cruel and
unusual punishments clause is not limited to gruesome punishments like torture and the rack
and all that kind of thing. ‘Cause in fact the punishments
inflicted on Oates, although they were very harsh
for the crime of perjury, were not as harsh as
some other punishments that the common law permitted
for other crimes like treason. – [Kim] Wow. So that tells us a lot
about the English context of cruel and unusual punishment. Do we know what cruel and unusual meant to the Framers of the US Bill of Rights? – [Stinneford] Punishments
were cruel and unusual, again, if they’re too harsh in light of longstanding prior practice for the crime for which they’re inflicted. There’s another problem with statutory law or with decisions of a judge or a king, or a president for that matter, that’s also really relevant when we think about the
Eighth Amendment and that is sometimes the government
gets really mad at someone. They either think of a person
as an enemy of the state and they wanna inflict the
worst punishment they can on that person, or perhaps there’s a panic about
a certain group in society. For example, in American society recently, there have been panics about drug crime or panics about sex offenses. And every time that happens the government tries to respond
with new forms of punishment that are much, much harsher
than what came before. So the insight behind
the Eighth Amendment is that when the government wants
to inflict a new punishment, you have to compare it against
longstanding prior practice, that is you have to compare
it against the common law. So the common law was called the law of custom and long usage. So if something comported
with the common law, it was usual. If it was contrary to the common law, it was unusual. And that’s where we get the phrase cruel and unusual punishments. It’s basically punishments that are cruel in light of or in comparison to longstanding prior practice. So the basic point of the Eighth Amendment from a historical point of view is to prohibit the government from innovating in a cruel manner, making up new cruel punishments in response to some actual
or perceived provocation by a criminal. – [Bessler] When the US
Bill of Rights was adopted many years later, many decades later, they had their own issues that
they were struggling with. And so the history shows
that the American Founders probably meant something
different than the English meant because it was done
over a 100 years later, but no one knows exactly what was meant when they adopted that wording. To give an example, when the Bill was debated in Congress, a representative from South Carolina said that he objected to the words nor cruel and unusual punishments because he said the import
of them was too indefinite. And there was another legislator, Mr. Livermore from New Hampshire, who said that the clause seemed to express “A great deal of humanity, “in which account I
have no objection to it. “But as it seems to have no meaning in it, “I do not think it necessary. “What is meant by the
terms excessive bail?” He asked. “Who are to be the judges?” He also asked. “What is understood by excessive fines?” It lies to the court to determine. And so that’s really where we
are today in a lot of ways. The court is still deciding, in this case the US Supreme
Court is still deciding what the Eighth Amendment
language actually means today. – [Stinneford] The modern case law, specially starting in the 1970s, revolved a lot around the death penalty. And so the question was, is it still okay to execute people for various crimes short of murder? Since the 70s, the Court has continued to
do that in a number of areas. So it’s said you can’t execute the
mentally disabled anymore, you can’t execute minors, you can’t execute anyone
for a non-homicide offense. Although it’s limited the death penalty in the name of current
standards of decency, it’s really not clear how
the Court has set about to determine whether a punishment meets current standards of decency. When the Court is kind of on its own saying that a punishment violates current standards of decency, despite the fact that most democratically
elected legislators actually approve the practice, then it looks like the Court
is acting as a political body. It’s led the court to ignore what I think is the
real danger of cruelty, which is that when there’s a public panic and the legislature responds
by rationing up punishment to new and unprecedented
levels of punishment. And that’s actually happened quite a lot in the last 40 years. Every time there’s a panic, you predictably see the legislatures coming up with new punishments that are much, much harsher
than what came before. And so for example with sex offenders, there are now a bunch of states that actually impose chemical castration as a form of punishment for sex offenders. Now, castration as a form of punishment fell out of usage in the 13th century. We’re literally getting
medieval on sex offenders. But the Court can’t do
anything really to stop it, or at least hasn’t, because these are very
popular forms of punishment. Everyone hates sex offenders. – [Bessler] The UN has actually decided that anything more than 15-days
use of solitary confinement should not be permitted. Justice Anthony Kennedy actually raised the issue
of solitary confinement in recent opinion. He authored for the Supreme Court and he actually raised
the issue on his own, an oral argument at one point, talking about how long people actually spend
in solitary confinement in American prisons, including on death row. You have cases actually
where people are spending not just years but sometimes
decades on death row in these kinds of conditions. Justice Breyer just
wrote a dissent in a case where the person had been on death row for more than 40 years, so literally four decades in these kinds of very harsh
conditions of confinement. Other countries have decided that that is not something
that they want to permit and they’ve actually set a rule that anybody that’s on death row for a certain number of years for example would have their sentence
commuted to a life sentence because of the psychological aspect of waiting for one’s own death. – [Kim] In the Bill of Rights, this is the last of four
amendments, actually, that are concerned with
protections for the accused. So, why do you think there is
so much in the Bill of Rights about the justice system? Were the Framers particularly interested in making sure that
the accused had rights? – [Stinneford] Yeah, they were. And in particular
Americans were very devoted to the idea of the common
law as a source of rights. In fact, that’s why we had the American Revolution
in the first place, was that England was denying
to Americans common law rights like the right not to be taxed without representation in Parliament but also more specifically
to the criminal law they were denying them
the right to a jury trial in criminal cases. And so Americans wanted to make sure that when the US Constitution was adopted that those common law rights that had built up over time in England would be preserved in the new
American constitutional order. And many of those rights
had to do with criminal law, both criminal procedures and to some degree
subsequence of criminal law and of course criminal punishments. And, again, the reason gets back to what I said at the beginning which is that when the
government punishes someone, that’s about the worse thing it can do. And because the early Americans
who framed the Constitution were very powerfully
concerned with liberty, they wanted to make sure the government would
preserve their liberty, protect their liberty, and not become tyrannical. And so one of the main ways that they wanted to
make sure this happened was by limiting the
power of the government to punish whoever it wanted to for any reason that it wanted to. And so we have really the
majority of the protections in the Bill of Rights have to do with the protections
for criminal defendants. – [Kim] What about excessive
bail and excessive fines? How can we define what
kind of financial penalty is proportionate to a crime? – [Bessler] The courts
have said, essentially, they’ve looked at dictionary definitions, that excessive means
more than it’s necessary. One of the core principles actually go back to look at
Beccaria’s work in the 1760s. He talked about this
idea of a scale of crimes and a scale of punishments, and he said that there
should be proportionality between the two. And so that proportionality principle is one that we’re really
still wrestling with today. – [Stinneford] Now, the point of bail is not to punish someone but rather just to make sure
that they will appear at trial. And so the amount of money
you have to impose for bail doesn’t depend so much on
what crime you committed but what your financial resources are. It depends partially on the crime too but largely on your financial resources. So the amount of money necessary to make sure that a poor
man appears at trial is probably gonna be much lower than the amount of money necessary to make sure that a rich
man appears at trial. And so it’s a standard that depends partly on
the nature of the crime but also partially on the
nature of the offender. – [Kim] I imagine that what seemed like cruel and unusual
punishment in the 18th century might not be what we consider
cruel and unusual today. For example, we don’t do
whipping as a punishment anymore. How has what counts as
cruel and unusual punishment changed over time? – [Bessler] The law really
changes gradually over time, as you know. And so when you look back at history, they actually had a large collection of pretty gruesome punishments back in the 18th century. We had non-lethal corporal punishments, they used things like branding people. They of course were
whipping slaves back then. Slavery was still around. This is well before the Civil War ended and the destitution of slavery. And we also had things like ear cropping. People would get their ears cut off. In the Crimes Act of 1790, which was passed just the year before the ratification of the Eighth Amendment, Congress actually
authorized public whipping, lashing of people, and it also authorized the pillory, the same punishment that had
been used against Titus Oates. So there was these non-lethal
corporal punishments and really the death penalty is the last vestige of bodily punishment that the Supreme Court has
read the Eighth Amendment to allow the use of capital punishment. That issue is still a very live one before the Supreme Court, renouncing challenges about
lethal injection protocols. We saw a challenge to a
protocol in Kentucky in 2008. We saw one to protocol
in Oklahoma in 2015. These of course are things
that the Founding Fathers would never have envisioned. – [Stinneford] Lethal injection typically involves a three-drug cocktail. There’s a barbiturate which is
supposed to put you to sleep. There’s a paralyzing agent
which paralyzes your body and also stops your lungs from moving. And there’s a heart-stopping agent. Give the offender all three and they’re supposed to
die quickly and painlessly. But the problem is, if the sedative doesn’t put you completely, deeply unconscious, then the other two drugs are likely to make you suffer
quite a bit before you die. And so the question is, is this cruel and unusual or
is it not cruel and unusual? And to date the Supreme
Court has twice held that lethal injection
is not cruel and unusual and their main reason has been that the state’s not trying
to torture you to death and so if maybe you’re sometimes accidentally
tortured to death well, that’s just too bad, but it’s not a cruel
and unusual punishment. – [Bessler] So the (mumbles) has approved various methods of execution. At the same time, however, the Eighth Amendment has been
read to protect prisoners. So in general the Eighth Amendment is sort of a protective shield that prohibits prison guards from gratuitously beating up inmates. It requires prisons to provide some level of health care to prisoners because they cannot get it themselves, they are sort of wards of the state once they’re put in prison. It requires inmates be fed and sheltered. So in a lot of ways the Eighth Amendment
is a protective shield protecting inmates, but then in the use of
the capital punishment it becomes what I like to call, it’s kind of a Dr. Jekyll
and Mr. Hyde jurisprudence that the Eighth Amendment has right now. – [Kim] So, we’ve learned
that the Eighth Amendment seeks to limit the power of the government in meeting out punishment to people who have been accused
or convicted of a crime. Although it’s hard to tell exactly what constitutes
excessive fines or bail, in general it’s accepted
that those punishments should be proportional to
the crimes in question. Today, one of the biggest debates concerns whether or how
the Eighth Amendment may limit the death penalty. To learn more about the Eighth Amendment, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources
on US government and politics.

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