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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 Johnston aford is the assistant director of the Criminal Justice Center at the University of Florida law school john Besler 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 want to protect these rights in particular well these rights were actually enshrined in the English Bill of Rights of 1689 and so when the Americans got into dispute with with Great Britain they decided one 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 this 16 words in the 8th amendment have been subject to a lot of controversy over 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 neutral punishments the founders also knew that was a risk that there was abuse from the government in the United States and so they also one of those rights because originally in the Constitution these rights were not protected against and the the Bill of Rights was ratified in 1791 which ensured that their protections against these cruel news rapun assurance an excessive bail and excessive fines if you look at the 8th amendment there's three clauses right 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 crimes so if you've been arrested you're waiting for trial very often your only way to get out of jail before before trial is to make bail and of course after you think convicted the court might impose a fine on you or some other kind of punishment and so the Eighth Amendment is designed to prevent the government from doing things that are excessive you know when the government punishes a person that's the most coercive thing the government does short of war right other than you know shooting you in battle you know 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 so in a lot of cases in the Bill of Rights you see the framers reacting to some historical evil that they hope 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 well there there was some evils and the English Bill of Rights went into place in 1689 and when that went into place there was actually a controversy in England around a person by the name of Titus Oates Titus Oates was somebody who had false accusation was had committed perjury resulted actually that allegation of the execution of 15 Catholics and the plot that he'd alleged was one to assassinate the king of England the question is what to do with Oates right because as a sort of 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 could think of him as a 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 Jeffrey's 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'd 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 Tiber and again while being flogged many people think the hope was that he would die from the flogging but you know like a cockroach in a nuclear war he survived this punishment was actually a very severe punishment and after the English Bill of Rights was promulgated the Titus Oates his 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 and 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 although the House of Lords refused to vote to suspend the judgment against Oates because they hated him so much they said you know so ill a man shouldn't get the benefit of any relief but they all agreed that the punishment was cruel and unusual and with 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 there'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 right 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 long-standing prior practice would permit and this means that among other things that the the coolant unusual punishments Clause is not limited to gruesome punishments like torture and the rack and all that kind of thing because in fact the punishments inflicted on oats 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 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 so punishments were cruel and unusual again if they're too harsh in light of long-standing 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 want to inflict the worst punishment they can on that person or perhaps they are there's a panic about a certain group in society so 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 and so the insight behind the eighth amendment is that when the government wants to inflict a new punishment you have to compare it against long-standing prior practice that is you have to compare it against the common law right so the common law was called the law of custom and long usage right 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 long-standing 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 when the US Bill of Rights was 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 the American founders probably meant something different than the English meant because it was done over a hundred years later but no one knows exactly what was meant when they adopted that wording do you have an example when the bill was debated in Congress the delegate from South Carolina represented 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 of mr. Livermore from New Hampshire who said that the clause seems 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 were to be the judges he also asked what is understood by excessive fines it lies for 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 the modern case law especially starting in the 1970s revolved a lot around the death penalty and so the question was is it still okay to execute people for for various crimes short of murder since the 70s the court has continued to do that in a 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 courts acting as sort of a political body it's sort of led the court to ignore what I think it's the real danger of cruelty which is that when there's a public panic and the legislature responds by ratcheting up punishment to new and unprecedented levels of punishment and and that's actually happened quite a lot in the last 40 years and every time there's a panic you'll you predict ibly see the legislators coming up with new punishments that are much much harsher than what came before and so for example with regard to 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 you know everyone hates sex offenders 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 reason of opinion he authored for the Supreme Court he actually raised the issue on his own at oral argument at one point talking about how long people actually spend in solitary confinement and American prisons including including on death row and 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 for 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 settled 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 sort of waiting for one's own own death 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's so much in the Bill of Rights about the justice system were the framers particularly interested in making sure that the accused had rights yeah they were and in particular Americans were very devoted to the idea of the common law as a source of rights right 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 both criminal procedures and to some degree substantive criminal law and of course criminal punishments and and again the reason gets back to sort of what I said at the beginning which is that when the government punishes someone that's about the worst thing it can do and because you know the early Americans who frame 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 right 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 a really the majority of the protections in the bill of rights have to do with the protections for criminal defendants what about excessive bail and excessive fines how can we define what kind of financial penalty is proportionate to a crime the courts have said essentially they looked at dictionary definitions excessive means more than is necessary one of the core principles actually go back to look at Becca Ria'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 portion ality between the two and so that proportionality principle is one that we're really still wrestling with today the point of bail is not to punish someone but but rather just to make sure that they will appear at trial right 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 right it depends partially on the crime - but but largely on your financial resources so the amount of money necessary to make sure that a poor man appears at trial is probably going to be much lower than the amount of money necessary to make sure that a rich man appears at trial and so it is it's a standard that depends partly on the nature of the crime but also partially on the nature of the offender 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 the law 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 and we had non-lethal corporal punishments they use things like branding people they of course were whipping slaves back then slavery was still around this is well before the the civil war ended the institution of slavery and we also had things like ear cropping people would you know get their ears cut off in the Crimes Act of 1790 which was passed as the year before the ratification of the 8th amendment the Congress actually authorized public whipping lashing of people and it also authorized the pillory the same punishment that had been used against type is oaths so there there was there was these non-lethal corporal punishments and really the death penalty sort of the last vestige of a bodily punishment that the 8th amendment the Supreme Court has read the 8th amendment to allow the use of capital punishment that issue still a very live one before the Supreme Court we're now seeing challenges about lethal injection protocols we saw a challenge to protocol in Kentucky in 2008 we saw 1 to 2 a protocol in Oklahoma in 2015 these of course are things that the founding fathers would never have envisioned lethal injection typically involves a three-drug cocktail so 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 you know 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 so the Supreme Court 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 they cannot get it themselves they're sort of Ward's of the state once they're put in prison requires inmates be 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 kind of a it's kind of a dr. Jekyll and mr. Hyde kind of jurisprudence that the Eighth Amendment has right now so we've learned that the Eighth Amendment seeks to limit the power of the government in meaning out punishment to people who have been accused or convicted of a crime although it's hard to tell exactly what constitutes excessive 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