November 11, 2025 • 28 mins
Fairness is one of the first ideas we learn as kids, and it never stops shaping how we see justice. We sit down with Dr. Kerry Sautner, president and CEO of Eastern State Penitentiary Historic Site, to unpack the Eighth Amendment’s compact promise: no excessive bail or fines, and no cruel and unusual punishment. From there, the conversation opens into the human questions that text demands we face—what counts as cruel, who decides, and how do standards change as society and science evolve.
We trace the history behind the Amendment’s key words and why “unusual” was written to move with time. That leads us to the question of proportionality: Does the punishment fit the crime? We explore incorporation through the 14th Amendment, which extends these protections to the states, and examine how courts gauge national consensus by scanning state laws, jury practices, and expert evidence. Along the way, we examine solitary confinement and what medical research now shows about the brain after two weeks alone, raising the tension between tradition and proof.
The death penalty takes center stage as a case study in evolving standards of decency. We talk about juveniles, intellectual disability, and what neuroscience reveals about responsibility and foresight. We also confront the practical and ethical puzzles of lethal injection—its risk of severe pain, the refusal of medical professionals to participate, and what that says about dignity under the law. Throughout, we highlight the danger of irreversible error and why a system built to restrain government power must be careful, consistent, and humane, even with people who have done terrible harm.
If you care about criminal justice reform, constitutional law, or simply the difference between punishment and cruelty, this conversation will challenge and ground your thinking. Listen, share with a friend, and tell us where you draw the line on decency today. Subscribe for more deep dives, and leave a review to help others find the show.
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Episode Transcript
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SPEAKER_00 (00:02):
Welcome back, everyone.
Today I am very excited to havemy friend and civic colleague,
Dr.
Carrie Sodner, who is thepresident and chief executive
officer of Eastern StatePenitentiary Historic Site, a
museum that interprets thelegacy of America's criminal
justice reform from the site ofthe world's first penitentiary.
And we have an entire podcastepisode that I will link in our
(00:26):
notes about Eastern StatePenitentiary.
And it is wildly interesting,highly suggests it.
But, Dr.
Sottner, thank you so much forbeing here.
What is the Eighth Amendment?
Well, thank you for having me.
SPEAKER_01 (00:41):
And it's really exciting to talk about all this
history and all of theamendments.
So thank you so much for doingthis program because I know
these are short little bits, butwe could talk about this stuff
forever.
And I find, I know this soundsso weird.
I find the Eighth Amendment oneof the most fascinating.
And oddly enough, I'm just gonnabe honest about it, one of the
(01:03):
most successful.
It is a can of worms that youopen, but everybody's interested
in the Eighth Amendment.
So ever at a party and talkingto a seven-year-old or an
eight-year-old and have nothingto talk about, bring up, hey,
what do you think about thatEighth Amendment?
I will bet you a million dollarsthat kid is all in.
Because there is somethingintrinsically driven in every
(01:27):
human being to talk about whenthings are fair and unfair and
just and unjust.
And that's what the EighthAmendment really looks at.
It says, is this punishmentjust?
Is it fair?
Is it appropriate?
All those things.
Now I'm gonna read the actualwords in a minute, but I want to
let y'all know that we can haveunconstitutional parties
(01:49):
conversations that talk aboutthese things.
And the Eighth Amendment is theeasiest into the Constitution.
SPEAKER_00 (01:55):
I love that you talk about the accessibility for
little kids too, right?
Because I know that somebodylistening was like, what would a
seven-year-old know about theEighth Amendment?
But when you're talking aboutfairness and whether something
is just or not, I cannot tellyou.
I did teach kindergarten howmany times kids would say, Well,
that's not fair.
(02:17):
Even middle schoolers do it,high schoolers do it, adults do
it.
That's not fair.
So having these conversations isso interesting.
So, what is kind of the historybehind the Eighth Amendment?
SPEAKER_01 (02:29):
Yeah, and it really is thinking through like the
colonies saying, what is fairand what is just and what is
appropriate.
That's a word appropriate is theword that, you know, again, if
you're doing a constitutionalbingo card, especially with
court cases, a lot of the timesyou'll see the word appropriate.
And we get a lot of appropriateSupreme Court cases findings
(02:53):
because they're they're notgonna say this is what it is,
this is what it's not.
They're gonna use words likeappropriate, they're gonna use a
word like usual and normal andtypical, like all these same
words.
And so let's read, let's readthe Eighth Amendment first,
because rule number one don'ttake somebody's word for it.
Go back to the actual text ofthe constitution and read what
(03:15):
it actually says and then pickit apart.
That's our job.
So excessive bail shall not berequired, nor excessive fines
imposed, nor cruel and unusualpunishment inflicted.
So when we think about those, I,you know, I love to write this
on a piece of paper, on youknow, a big giant post-it note,
(03:35):
on all these pieces, and I startto diagram the sentences for
lack of a better word, eventhough I hated diagramming
sentences in school.
But we think of like, what doesthe word excessive bail mean?
And it says shall not berequired, nor excessive fines
imposed.
Again, they're saying excessiveis not okay, excessive is not
okay, nor cruel and unusualpunishment inflicted.
(03:59):
So, what it's telling you bythese words, and I find this
amendment more fascinating thanalmost any other amendment and
any other part of theconstitution, is it's saying
there's some discretion on this,there's some social
normalization on this that ishelping define what it means.
We talk quite often in ourconstitution, and especially in
(04:21):
the news today, aboutoriginalism and about, you know,
constitutional interpretationtoday, like the modern
interpretation.
And we we know we have methodsof in understanding and
interpreting the constitution.
And there's so many greatconversations on this.
The Eighth Amendment is sayingto you, unusual might change
(04:43):
over time.
What people thought was unusualpunishment 400 years ago, a
thousand years ago is verydifferent than what we may think
of unusual punishment today, orwhat is normal or typical
punishment?
And so this has an evolvingunderstanding based on what does
society deem is usual, normal,excessive, non-excessive, not
(05:10):
you, not common, not usual.
That's why they put those wordsinto it.
And it was intentional.
So you can pick something fromthe 1600s, a punishment that was
deemed normal.
It was typically used at thetime.
That's what would make it seemto be usual, normal, typically
(05:30):
used, and say that is veryunusual in the 1800s.
So go ahead, Liz, pick one, pickanyone.
Pick any punishment, drawing andquartering.
Great one.
Big fan of Scottish history.
William Wallace, an amazingstory, really, really
fascinating, extremelydepressing.
I will tell you, I lived inScotland the first time I got
(05:52):
really deep into understandingWilliam Wallace's history.
And I remember getting to theend of the story and had no idea
that he actually died that way.
But it's the saddest ending.
So I want to pre-game everybody.
It is using drawing andquartering, which is extremely
violent, extremely painful.
If that was put on the docket asa prescribed punishment for
(06:13):
somebody's crime today, thatwould be considered unusual.
It would be considered cruel andunusual.
And so in the 1600s, in the1500s, that may have been
typical and normal and notconsidered cruel and unusual.
But it also says it does thepunishment fit the crime.
So those two things play intocruel as well.
(06:35):
So somebody could have stolen aloaf of bread and be given life.
And that you can say, that'scruel.
That doesn't fit.
It doesn't match.
There's a technique that you'retaught as a kindergarten
teacher.
And Liz, I know you were akindergarten teacher that you
work with kids about that thesize of the size of the issue
and the size of the reactionshould line up.
(06:58):
So the size of the problem, weused to say all the time, okay,
how big's the problem?
How big's your reaction?
Because as little kids, we'realso talking about things that
are fair and unfair, but we'realso really emotional about
that.
So sometimes we're like, that'snot fair.
And it's actually is prettyfair.
So you have to look at those.
And that's what these words arelooking at too.
So does the crime and thepunishment fit each other?
(07:20):
And if they do not, then it isunjust and unfair.
And the Eighth Amendment willprotect you from the government
doing that, protect you from thefederal government doing that at
first.
And then after incorporation ofthe Reconstruction Amendments
and incorporation over theyears, you start to see that
being truly incorporated in the1950s, the 1960s, and the 19,
(07:41):
all the way to the 1990s.
Remember, those Bill of Rightsin 1791, when they're spelled
out and written out and amendedto the Constitution, they apply
to what the federal governmentcan't do.
Yes.
It isn't until later, after theReconstruction Amendments, and
then the process ofincorporation, that these most
of the amendments areincorporated saying the state
(08:03):
government can't do that either.
So incorporation, differenttopic, different podcast, but
also one that really appliesbecause these things aren't just
so simple.
They're really connecting thedots between due process in the
constitution, Eighth Amendmentto the 14th Amendment and
incorporation as well.
SPEAKER_00 (08:23):
So can I ask, I think more of a modern day
example?
Because I was like drawing andquartering or tarring and
feathering, right?
That's like that is that's wayback when.
But we're looking at like now,like things like the death
penalty.
I know that that's been aconversation within the Eighth
Amendment and you know, theincorporation of that, right?
(08:45):
And there are still some statesthat have death penalty, there
are some states that don't.
But can you kind of walk us alittle bit through death
penalty, whether or not that'scruel and unusual, and like kind
of who is allowed to get thedeath penalty and who is
absolutely not allowed to getthe death penalty?
SPEAKER_01 (09:03):
It's a it's a great question.
And this this is when you'llhear this line from famous court
cases, uh evolving standards ofdecency.
And that is why am I blanking onhis name?
It just went right out of myhead as soon as I quoted him.
Warren, Earl Warren, sorry, ittook me a minute to get his name
back.
So it was Earl Warren that comesup with this.
(09:24):
Like, how do we they've beenusing it for a while, they've
been saying this about theEighth Amendment, but now he
starts to coin the term.
And then we see this evolvingstandards of decency.
It's saying, what do we find asa society today?
What's what is what do we see asa decent application of the law,
of humanity, of human dignity,even when a person maybe has
(09:48):
taken somebody else's life anddignity and had no standard of
decency for them.
And this is the part about theconstitution.
When you look at all thesecases, it's usually not the
people you like that theconstitution stands up for.
It's almost always the peopleyou don't like that it stands up
for.
But that's the case of a truejust society, is if we can stand
(10:10):
up for those who have thesmallest voice, those that we
don't deem, maybe personally, asgood people, the law sticks to
everyone and it should be fairlyapplied to everybody.
That's why sometimes these casesare the worst, like the worst of
us, the worst of humankind'sbehavior.
(10:31):
We see that terrible heavier andwe still say it has to apply
here too, because that's whereyou get a fair and just system.
Number one, when you look atcourt cases, especially the
death penalty cases, I want usto be really mindful of how many
death penalty cases, whenexamined, are found incorrect.
(10:53):
They're the only ones that aretruly examined.
So let's start there.
They're the only ones thatlooked at.
And then we're saying on top ofit that a high majority, the
majority of them are not beingfound to be appropriate cases,
meaning they should not havecome to this outcome.
So the reason why we talk aboutdeath penalty all the time is
one, this is where we're doingthe research.
(11:14):
And two, do you want thegovernment getting it wrong?
Your job as a citizen is to givethe power to the government
through these laws, throughthese policies, through these
practices, through thisconstitution.
We are sovereign.
We are giving them the power.
And the thing that is thescariest is if they apply it
wrong.
Because how about if they applyit to the innocent?
(11:34):
How about if they apply it toyour friend?
And so we have to look at itlike that.
And over the years, we havequestioned that and said, what
is the standard of decencyaround kids, around people with
mental disabilities, people withspecial needs, and do they apply
the same way?
And you know what comes intoplay here huge and creates a
(11:57):
huge change.
Science.
So the more that we learn abouthow brains work, the more that
we understand about how brainsare different, can we apply the
same rules to people who may notbe able to, physically, mentally
able to understand outcomes,understand A plus B winds up
(12:22):
being C.
Should you be held accountablefor C when you didn't know that
would happen?
And so that is where we've seenthis law kind of and the
application of the EighthAmendment change over time and
saying, what is what is a justsociety that we put a
15-year-old in and have themhave a death sentence when we
(12:48):
now know that their braindoesn't work the way it does and
doesn't have that outcome, thatexecutive functioning to
understand, oh, if I do this,this will happen.
And you know what's prettyfascinating about this?
One of those cases about a15-year-old was actually a
15-year-old that was held atEastern State Penitentiary
Historic Site in Philadelphia.
I know.
What happens when you're ahistory nerd like us and you go
(13:10):
down rabbit holes at night andyou have access to an archives?
And it is, it was a 15-year-old,and he actually murdered his
grandmother, who was hiscaregiver at the time.
And we know that there was a lotnow today.
We see that there was a lot ofmental health issues going on
there.
We see that there was abusegoing on there.
And what we find from the caseis that the community of
(13:32):
Philadelphia stood up and acrossPennsylvania and said, whoa,
whoa, whoa, we don't do this.
We know what he did was wrong,but we're not gonna, we're not
gonna allow this death sentenceto be moved forward.
That goes to a list of casesthat go all the way up to the
Supreme Court and that starts tochange how we see kids in
(13:53):
punishment.
Do we see it as a cruel andunusual punishment for children,
for minors?
Now, two things.
That's gone back and forth,because nothing's straight line
with the Constitution.
That's gone back and forth inour society over the last 100
years.
And at times people have said,absolutely no, that is not
(14:15):
acceptable.
And then there was a rise in the80s, the 70s and the 80s, and
then it dropped back down againas more science came into play
and more understanding of thethe way our brain works.
But we look at that and we say,how does society see it?
And how does society react tothis as well?
When you look at the 70s and80s, you have a huge epidemic in
(14:37):
our society of violence fromyoung people.
We have a high percentage, highpercentage of our population is
under 18.
And you also have a rise incrime under 18.
And you see a bipartisanmovement to increase punishment
as well.
We're talking Clinton, we'retalking, you know, even before
Clinton, we're talking Nixon,we're talking Eisenhower across
(15:00):
the board.
So when we look at these, welook at these in a nonpartisan
way.
We look at the law, and we lookat the standards of decency in
our community as well.
And what is norm and what isnot.
When they looked, the SupremeCourt looked back at the state
cases, but they found across thestates that the norm was people
with mental disabilities andjuveniles should not be
(15:24):
sentenced to death.
And so that's why the Supremesaid, okay, we're gonna settle
this, we're gonna move thisforward.
SPEAKER_00 (15:31):
It's it's so interesting.
And I love that I think part ofthe thing that frustrates people
is that the constitution createsall these complications, but I
also love that it does becausewhen we're talking about
someone's life, right?
We're talking about life,liberty, and the pursuit of
happiness from the Declarationof Independence.
When we're talking about takingsomeone's life as a punishment,
(15:54):
there needs to be complications.
There needs to be nuance becausewe can't just say, you know, I
now I'm literally gonna, as soonas we're done with this, go down
this rabbit hole of the kid fromEastern State Penitentiary.
And, you know, even looking atexecution methods, how those
have changed, right?
(16:14):
It is, it's so fascinating.
And can you you talked aboutstandards of decency?
Can you just quickly explain toour listeners what is standards
of decency?
What does that mean?
Right?
Because here in Arizona, wemight have different standards
of decency than in Pennsylvaniaor small towns versus big like
(16:36):
there's so much nuance to it.
So what does standards ofdecency mean?
SPEAKER_01 (16:40):
Yeah, the courts are really trying to come up with a
with a test and say, what is theaverage and the norm?
Remember, when you're looking atthe Supreme Court, they're
looking at when they're, youknow, think cases get to the
Supreme Court because there's aninconsistency at the lower
courts level.
And so the the methods and thetests that come up through the
court's process, no matter whatthe topic is, are really trying
(17:02):
to say we started noticing apattern.
And in that pattern, fromlooking at the the original
constitution and how it wasframed at the time, and looking
at these cases coming up fromthe courts, we're we're noticing
a pattern here.
So they're trying to say, look,look across all the states and
look what we're defining as apeople that our standards are,
(17:25):
that our standards of how do weapply punishment?
How do we apply what is cruel,what is unusual.
And so that's what they'retrying to define and saying, how
do we see that across the board?
And this is what it gets really,really hard when we talk about
crime and violence and pain,because when we see this up
(17:47):
close, the law has to beconsistent for all.
The law has to be consistentthat it's not applying something
differently because you're afemale to a male, because you
you are black because you'rewhite.
And this is when we they have tolook at the standard across the
society and not in just onearea, but across the entire
(18:08):
society.
Now, what we have in the Statesis you're right, a little bit of
discussion and dialogue anddebate around these issues, and
where do we level that and wheredo we see it's okay?
And we look at things likesolitary confinement.
You could say that we know bylike medically, that two more
(18:29):
than two weeks, even under morethan two weeks, creates an
extreme mental health damage tohuman beings to be in solitary
confinement for more than twoweeks.
That is life-altering, changingyour chemical makeup of your
brain.
And that's just standard, not ifyou had additional medical needs
and mental needs before that.
(18:49):
25 states have deemed it innerit illegal in that state to keep
somebody in solitary confinementfor more than two weeks.
25.
Not everybody, even though weknow this.
So, where how does this kind ofdialogue come up and go around
it?
And where does the EighthAmendment come into play around
this?
But it is very hard.
(19:10):
It's very hard when you see painand there is trauma, and there
is trauma in all levels of thecriminal justice system, both by
the people that have committedan offense, a harm, and by those
who have received the harm andtheir families as well.
But this is why we go back tothe system should be blind and
(19:31):
should be looking at this with alevel of decency and a fairness
of the application of the law.
This is rule of law.
This is all these base things.
This is natural rights that thegovernment shall never take it.
But at the end of the day, whatyou said in the beginning of
this is perfect.
You better be right about this.
You better make sure, withoutdoubt, without a reasonable
(19:55):
doubt, that you did not get thiswrong.
And this is what makes people soconcerned when we're looking at
the Eighth Amendment and wherewe're looking at things like the
death penalty and how to applythe death penalty, that if so
many of these cases come back,that there should have been
doubt, or the the informationwasn't there for the jurors to
have doubt, or it was, it wasthe system wasn't being used the
(20:20):
way that the constitutionalframework set it up, then we've
got a problem.
But that's our job.
That's our job as people, ascitizens, to say we want a fair
and just system.
So we have to watch it, we haveto measure it, we have to ask
questions, we have to tease itapart.
Because at the end of the day,you know, I go back to
Blackstone, and this is 1600s inEngland.
(20:42):
And correct me if I get itwrong, Liz, because sometimes I
will forget the exact timeperiod.
But Blackstone is who comes upwith the idea that you have to
have create a system that is soright to ensure that people who
are innocent are not, are not atthe the mercy of a bad system,
that one person getting free isworth missing 10 because that
(21:07):
one person was innocent and thatis not okay.
That's what we frame ourconstitution on.
We frame it on a fear of thegovernment overstepping its
boundaries.
That's the the structuralconstitution, that's the Bill of
Rights.
We don't trust man to get itright in the system.
So we better put a lot of checksand balances in here to get it
right.
(21:27):
And again, the 14th Amendmentcomes around and says, guess
what?
We're not, we're a littleparanoid about the states too.
And so I don't think that likehaving having a reasonable
suspicion that our governmentcould get it wrong or our courts
could get it wrong is not a badthing.
But we need to step in andputting strong guardrails to do
right at the same time to ensurethat people are protected,
(21:49):
because the role of thegovernment is to keep the
citizens safe and protected.
I do want to tease out thebinary note that we do of the
perpetrator or the personcausing harm and the victim.
When we really look at thesethings for women at least, and
it's similar to men, but forwomen, it's 70% of those people
are exactly the same person.
(22:09):
So the person that committedharm is also a person that has
been victimized.
So we can't separate it becausebinaries are real easy, and
that's not life, and that's nothuman beings either.
SPEAKER_00 (22:20):
Yes.
And I'm glad you said thatbecause I do want to.
The podcast we did on theEastern State Penitentiary for
the Arizona Civics podcast, Iwill link it in our show notes.
Curry and I, I mean, we reallyget into like what is the
purpose of the justice system,how many people the justice
system touches.
Because I think that there aretimes where people are like,
(22:40):
well, that doesn't apply to me,whatever.
It it widely applies, whetheryou know somebody who is
incarcerated, we talk aboutchildren, we talk about solitary
confinement, like there is somuch more to this conversation.
But Arizona or the ArizonaCivics podcast give us gives us
the long form.
This is kind of the short form.
(23:01):
Dr.
Sonder, is there anything elsethat you want people to know
about the Eighth Amendmentbefore we kind of close out this
podcast?
SPEAKER_01 (23:10):
I just want to take a real quick beat back to your
last question about modernconversation.
So I think it was two years ago,maybe three years ago, the
Supreme Court case on lethalinjection.
And I I feel like such a weirdothat I'm getting you guys jazzed
about this by talking aboutlethal injection.
Fascinating case.
Absolutely fascinating.
(23:30):
I believe it didn't go for fullreview.
I believe it went for anexpedient review.
So you're gonna have to look alittle bit closer and we'll
hopefully find it and link it inthe in the podcast notes.
I want you to look at that onebecause I had I had a lot of
grappling trouble with that onebecause some people have a
different reaction to lethalinjection.
(23:52):
And so the question was reallyaround the Eighth Amendment and
how their body reacts to lethalinjection and what is the level
of pain, pain that goes throughto be able to apply that ruling
of the courts that this person'slife should be terminated.
And and no doctors will do it,and medical facility will not do
(24:15):
it because when we look at ourdoctors, they swear an oath to
uphold human life.
And so there are no doctors andno nurses in that system that
are applying it.
That was for me kind of thismoment of like, whoa, whoa,
whoa, what's going on here?
So I I I put it back to you allto say, wait a minute here, what
(24:36):
are how are these societal normsand these societal moments and
standards of decency applying inreally complex ways in our
justice system?
And how do we, knowing that,does that make you think
differently about thatparticular case?
And I'm not saying about, youknow, people come at the death
(24:58):
penalty in a lot of differentways.
And everybody has, in some ways,a moral and an ethical, a legal,
and a human way that they'recoming at the death penalty.
And I think what's important forus as people in this community
is to put it all on the tableand talk through it.
Because I think thoseperspectives or how we elevate
ourselves as a society to cometo consensus and say, who do we
(25:20):
want to be?
And what do we feel isappropriate and decent in our
society?
SPEAKER_00 (25:27):
Because there have been many instances where lethal
injection has not worked thefirst time.
And I believe you're talkingabout Ham versus Smith in 2023.
So the court had declined toreview the lower court's
holding.
But it is it's an interestingconversation.
And I think, you know, youtalked about getting jazzed
(25:48):
about it, but it is, and I lovethat you frame it from these all
these different lenses, right?
Of we have to really understand.
We can't just harm peoplebecause they've harmed others.
Like that's not how the systemworks.
We still have to have humandecency, doctors uphold an oath,
and you know, it's just aninteresting again.
(26:10):
I feel like we can talk aboutthis.
We could probably have an entireseries on the Eighth Amendment
and what is cruel and unusualpunishment.
But again, please look up thesecases.
I will put these all in the shownotes.
Dr.
Sautner, I feel again, I feellike you and I can talk about
this forever because we bothnerd out on it.
And Supreme Court cases areinteresting because they show
(26:31):
sometimes what the standards ofthe time are, but they also show
that it's not linear, right?
It's not, like you said, it'snot on a binary.
There's so there's so muchnuance to consider.
So again, thank you.
Also, if you are inPhiladelphia, go to the Eastern
State Penitentiary.
It is so fascinating.
And please listen to, I keepsaying it, but please listen to
(26:55):
the podcast on Eastern Statebecause I learned so much.
It is just, it's just sofascinating.
So, Dr.
Sutner, thank you so much.
SPEAKER_01 (27:04):
Thank you for having me and excited to you know get
out there and talk about thejustice system more and more.
Welcome back, everyone.
Today I am very excited to havemy friend and civic colleague,
Dr.
Carrie Sodner, who is thepresident and chief executive
officer of Eastern StatePenitentiary Historic Site, a
museum that interprets thelegacy of America's criminal
justice reform from the site ofthe world's first penitentiary.
And we have an entire podcastepisode that I will link in our
(00:26):
notes about Eastern StatePenitentiary.
And it is wildly interesting,highly suggests it.
But, Dr.
Sottner, thank you so much forbeing here.
What is the Eighth Amendment?
Well, thank you for having me.
SPEAKER_01 (00:41):
And it's really exciting to talk about all this
history and all of theamendments.
So thank you so much for doingthis program because I know
these are short little bits, butwe could talk about this stuff
forever.
And I find, I know this soundsso weird.
I find the Eighth Amendment oneof the most fascinating.
And oddly enough, I'm just gonnabe honest about it, one of the
(01:03):
most successful.
It is a can of worms that youopen, but everybody's interested
in the Eighth Amendment.
So ever at a party and talkingto a seven-year-old or an
eight-year-old and have nothingto talk about, bring up, hey,
what do you think about thatEighth Amendment?
I will bet you a million dollarsthat kid is all in.
Because there is somethingintrinsically driven in every
(01:27):
human being to talk about whenthings are fair and unfair and
just and unjust.
And that's what the EighthAmendment really looks at.
It says, is this punishmentjust?
Is it fair?
Is it appropriate?
All those things.
Now I'm gonna read the actualwords in a minute, but I want to
let y'all know that we can haveunconstitutional parties
(01:49):
conversations that talk aboutthese things.
And the Eighth Amendment is theeasiest into the Constitution.
SPEAKER_00 (01:55):
I love that you talk about the accessibility for
little kids too, right?
Because I know that somebodylistening was like, what would a
seven-year-old know about theEighth Amendment?
But when you're talking aboutfairness and whether something
is just or not, I cannot tellyou.
I did teach kindergarten howmany times kids would say, Well,
that's not fair.
(02:17):
Even middle schoolers do it,high schoolers do it, adults do
it.
That's not fair.
So having these conversations isso interesting.
So, what is kind of the historybehind the Eighth Amendment?
SPEAKER_01 (02:29):
Yeah, and it really is thinking through like the
colonies saying, what is fairand what is just and what is
appropriate.
That's a word appropriate is theword that, you know, again, if
you're doing a constitutionalbingo card, especially with
court cases, a lot of the timesyou'll see the word appropriate.
And we get a lot of appropriateSupreme Court cases findings
(02:53):
because they're they're notgonna say this is what it is,
this is what it's not.
They're gonna use words likeappropriate, they're gonna use a
word like usual and normal andtypical, like all these same
words.
And so let's read, let's readthe Eighth Amendment first,
because rule number one don'ttake somebody's word for it.
Go back to the actual text ofthe constitution and read what
(03:15):
it actually says and then pickit apart.
That's our job.
So excessive bail shall not berequired, nor excessive fines
imposed, nor cruel and unusualpunishment inflicted.
So when we think about those, I,you know, I love to write this
on a piece of paper, on youknow, a big giant post-it note,
(03:35):
on all these pieces, and I startto diagram the sentences for
lack of a better word, eventhough I hated diagramming
sentences in school.
But we think of like, what doesthe word excessive bail mean?
And it says shall not berequired, nor excessive fines
imposed.
Again, they're saying excessiveis not okay, excessive is not
okay, nor cruel and unusualpunishment inflicted.
(03:59):
So, what it's telling you bythese words, and I find this
amendment more fascinating thanalmost any other amendment and
any other part of theconstitution, is it's saying
there's some discretion on this,there's some social
normalization on this that ishelping define what it means.
We talk quite often in ourconstitution, and especially in
(04:21):
the news today, aboutoriginalism and about, you know,
constitutional interpretationtoday, like the modern
interpretation.
And we we know we have methodsof in understanding and
interpreting the constitution.
And there's so many greatconversations on this.
The Eighth Amendment is sayingto you, unusual might change
(04:43):
over time.
What people thought was unusualpunishment 400 years ago, a
thousand years ago is verydifferent than what we may think
of unusual punishment today, orwhat is normal or typical
punishment?
And so this has an evolvingunderstanding based on what does
society deem is usual, normal,excessive, non-excessive, not
(05:10):
you, not common, not usual.
That's why they put those wordsinto it.
And it was intentional.
So you can pick something fromthe 1600s, a punishment that was
deemed normal.
It was typically used at thetime.
That's what would make it seemto be usual, normal, typically
(05:30):
used, and say that is veryunusual in the 1800s.
So go ahead, Liz, pick one, pickanyone.
Pick any punishment, drawing andquartering.
Great one.
Big fan of Scottish history.
William Wallace, an amazingstory, really, really
fascinating, extremelydepressing.
I will tell you, I lived inScotland the first time I got
(05:52):
really deep into understandingWilliam Wallace's history.
And I remember getting to theend of the story and had no idea
that he actually died that way.
But it's the saddest ending.
So I want to pre-game everybody.
It is using drawing andquartering, which is extremely
violent, extremely painful.
If that was put on the docket asa prescribed punishment for
(06:13):
somebody's crime today, thatwould be considered unusual.
It would be considered cruel andunusual.
And so in the 1600s, in the1500s, that may have been
typical and normal and notconsidered cruel and unusual.
But it also says it does thepunishment fit the crime.
So those two things play intocruel as well.
(06:35):
So somebody could have stolen aloaf of bread and be given life.
And that you can say, that'scruel.
That doesn't fit.
It doesn't match.
There's a technique that you'retaught as a kindergarten
teacher.
And Liz, I know you were akindergarten teacher that you
work with kids about that thesize of the size of the issue
and the size of the reactionshould line up.
(06:58):
So the size of the problem, weused to say all the time, okay,
how big's the problem?
How big's your reaction?
Because as little kids, we'realso talking about things that
are fair and unfair, but we'realso really emotional about
that.
So sometimes we're like, that'snot fair.
And it's actually is prettyfair.
So you have to look at those.
And that's what these words arelooking at too.
So does the crime and thepunishment fit each other?
(07:20):
And if they do not, then it isunjust and unfair.
And the Eighth Amendment willprotect you from the government
doing that, protect you from thefederal government doing that at
first.
And then after incorporation ofthe Reconstruction Amendments
and incorporation over theyears, you start to see that
being truly incorporated in the1950s, the 1960s, and the 19,
(07:41):
all the way to the 1990s.
Remember, those Bill of Rightsin 1791, when they're spelled
out and written out and amendedto the Constitution, they apply
to what the federal governmentcan't do.
Yes.
It isn't until later, after theReconstruction Amendments, and
then the process ofincorporation, that these most
of the amendments areincorporated saying the state
(08:03):
government can't do that either.
So incorporation, differenttopic, different podcast, but
also one that really appliesbecause these things aren't just
so simple.
They're really connecting thedots between due process in the
constitution, Eighth Amendmentto the 14th Amendment and
incorporation as well.
SPEAKER_00 (08:23):
So can I ask, I think more of a modern day
example?
Because I was like drawing andquartering or tarring and
feathering, right?
That's like that is that's wayback when.
But we're looking at like now,like things like the death
penalty.
I know that that's been aconversation within the Eighth
Amendment and you know, theincorporation of that, right?
(08:45):
And there are still some statesthat have death penalty, there
are some states that don't.
But can you kind of walk us alittle bit through death
penalty, whether or not that'scruel and unusual, and like kind
of who is allowed to get thedeath penalty and who is
absolutely not allowed to getthe death penalty?
SPEAKER_01 (09:03):
It's a it's a great question.
And this this is when you'llhear this line from famous court
cases, uh evolving standards ofdecency.
And that is why am I blanking onhis name?
It just went right out of myhead as soon as I quoted him.
Warren, Earl Warren, sorry, ittook me a minute to get his name
back.
So it was Earl Warren that comesup with this.
(09:24):
Like, how do we they've beenusing it for a while, they've
been saying this about theEighth Amendment, but now he
starts to coin the term.
And then we see this evolvingstandards of decency.
It's saying, what do we find asa society today?
What's what is what do we see asa decent application of the law,
of humanity, of human dignity,even when a person maybe has
(09:48):
taken somebody else's life anddignity and had no standard of
decency for them.
And this is the part about theconstitution.
When you look at all thesecases, it's usually not the
people you like that theconstitution stands up for.
It's almost always the peopleyou don't like that it stands up
for.
But that's the case of a truejust society, is if we can stand
(10:10):
up for those who have thesmallest voice, those that we
don't deem, maybe personally, asgood people, the law sticks to
everyone and it should be fairlyapplied to everybody.
That's why sometimes these casesare the worst, like the worst of
us, the worst of humankind'sbehavior.
(10:31):
We see that terrible heavier andwe still say it has to apply
here too, because that's whereyou get a fair and just system.
Number one, when you look atcourt cases, especially the
death penalty cases, I want usto be really mindful of how many
death penalty cases, whenexamined, are found incorrect.
(10:53):
They're the only ones that aretruly examined.
So let's start there.
They're the only ones thatlooked at.
And then we're saying on top ofit that a high majority, the
majority of them are not beingfound to be appropriate cases,
meaning they should not havecome to this outcome.
So the reason why we talk aboutdeath penalty all the time is
one, this is where we're doingthe research.
(11:14):
And two, do you want thegovernment getting it wrong?
Your job as a citizen is to givethe power to the government
through these laws, throughthese policies, through these
practices, through thisconstitution.
We are sovereign.
We are giving them the power.
And the thing that is thescariest is if they apply it
wrong.
Because how about if they applyit to the innocent?
(11:34):
How about if they apply it toyour friend?
And so we have to look at itlike that.
And over the years, we havequestioned that and said, what
is the standard of decencyaround kids, around people with
mental disabilities, people withspecial needs, and do they apply
the same way?
And you know what comes intoplay here huge and creates a
(11:57):
huge change.
Science.
So the more that we learn abouthow brains work, the more that
we understand about how brainsare different, can we apply the
same rules to people who may notbe able to, physically, mentally
able to understand outcomes,understand A plus B winds up
(12:22):
being C.
Should you be held accountablefor C when you didn't know that
would happen?
And so that is where we've seenthis law kind of and the
application of the EighthAmendment change over time and
saying, what is what is a justsociety that we put a
15-year-old in and have themhave a death sentence when we
(12:48):
now know that their braindoesn't work the way it does and
doesn't have that outcome, thatexecutive functioning to
understand, oh, if I do this,this will happen.
And you know what's prettyfascinating about this?
One of those cases about a15-year-old was actually a
15-year-old that was held atEastern State Penitentiary
Historic Site in Philadelphia.
I know.
What happens when you're ahistory nerd like us and you go
(13:10):
down rabbit holes at night andyou have access to an archives?
And it is, it was a 15-year-old,and he actually murdered his
grandmother, who was hiscaregiver at the time.
And we know that there was a lotnow today.
We see that there was a lot ofmental health issues going on
there.
We see that there was abusegoing on there.
And what we find from the caseis that the community of
(13:32):
Philadelphia stood up and acrossPennsylvania and said, whoa,
whoa, whoa, we don't do this.
We know what he did was wrong,but we're not gonna, we're not
gonna allow this death sentenceto be moved forward.
That goes to a list of casesthat go all the way up to the
Supreme Court and that starts tochange how we see kids in
(13:53):
punishment.
Do we see it as a cruel andunusual punishment for children,
for minors?
Now, two things.
That's gone back and forth,because nothing's straight line
with the Constitution.
That's gone back and forth inour society over the last 100
years.
And at times people have said,absolutely no, that is not
(14:15):
acceptable.
And then there was a rise in the80s, the 70s and the 80s, and
then it dropped back down againas more science came into play
and more understanding of thethe way our brain works.
But we look at that and we say,how does society see it?
And how does society react tothis as well?
When you look at the 70s and80s, you have a huge epidemic in
(14:37):
our society of violence fromyoung people.
We have a high percentage, highpercentage of our population is
under 18.
And you also have a rise incrime under 18.
And you see a bipartisanmovement to increase punishment
as well.
We're talking Clinton, we'retalking, you know, even before
Clinton, we're talking Nixon,we're talking Eisenhower across
(15:00):
the board.
So when we look at these, welook at these in a nonpartisan
way.
We look at the law, and we lookat the standards of decency in
our community as well.
And what is norm and what isnot.
When they looked, the SupremeCourt looked back at the state
cases, but they found across thestates that the norm was people
with mental disabilities andjuveniles should not be
(15:24):
sentenced to death.
And so that's why the Supremesaid, okay, we're gonna settle
this, we're gonna move thisforward.
SPEAKER_00 (15:31):
It's it's so interesting.
And I love that I think part ofthe thing that frustrates people
is that the constitution createsall these complications, but I
also love that it does becausewhen we're talking about
someone's life, right?
We're talking about life,liberty, and the pursuit of
happiness from the Declarationof Independence.
When we're talking about takingsomeone's life as a punishment,
(15:54):
there needs to be complications.
There needs to be nuance becausewe can't just say, you know, I
now I'm literally gonna, as soonas we're done with this, go down
this rabbit hole of the kid fromEastern State Penitentiary.
And, you know, even looking atexecution methods, how those
have changed, right?
(16:14):
It is, it's so fascinating.
And can you you talked aboutstandards of decency?
Can you just quickly explain toour listeners what is standards
of decency?
What does that mean?
Right?
Because here in Arizona, wemight have different standards
of decency than in Pennsylvaniaor small towns versus big like
(16:36):
there's so much nuance to it.
So what does standards ofdecency mean?
SPEAKER_01 (16:40):
Yeah, the courts are really trying to come up with a
with a test and say, what is theaverage and the norm?
Remember, when you're looking atthe Supreme Court, they're
looking at when they're, youknow, think cases get to the
Supreme Court because there's aninconsistency at the lower
courts level.
And so the the methods and thetests that come up through the
court's process, no matter whatthe topic is, are really trying
(17:02):
to say we started noticing apattern.
And in that pattern, fromlooking at the the original
constitution and how it wasframed at the time, and looking
at these cases coming up fromthe courts, we're we're noticing
a pattern here.
So they're trying to say, look,look across all the states and
look what we're defining as apeople that our standards are,
(17:25):
that our standards of how do weapply punishment?
How do we apply what is cruel,what is unusual.
And so that's what they'retrying to define and saying, how
do we see that across the board?
And this is what it gets really,really hard when we talk about
crime and violence and pain,because when we see this up
(17:47):
close, the law has to beconsistent for all.
The law has to be consistentthat it's not applying something
differently because you're afemale to a male, because you
you are black because you'rewhite.
And this is when we they have tolook at the standard across the
society and not in just onearea, but across the entire
(18:08):
society.
Now, what we have in the Statesis you're right, a little bit of
discussion and dialogue anddebate around these issues, and
where do we level that and wheredo we see it's okay?
And we look at things likesolitary confinement.
You could say that we know bylike medically, that two more
(18:29):
than two weeks, even under morethan two weeks, creates an
extreme mental health damage tohuman beings to be in solitary
confinement for more than twoweeks.
That is life-altering, changingyour chemical makeup of your
brain.
And that's just standard, not ifyou had additional medical needs
and mental needs before that.
(18:49):
25 states have deemed it innerit illegal in that state to keep
somebody in solitary confinementfor more than two weeks.
25.
Not everybody, even though weknow this.
So, where how does this kind ofdialogue come up and go around
it?
And where does the EighthAmendment come into play around
this?
But it is very hard.
(19:10):
It's very hard when you see painand there is trauma, and there
is trauma in all levels of thecriminal justice system, both by
the people that have committedan offense, a harm, and by those
who have received the harm andtheir families as well.
But this is why we go back tothe system should be blind and
(19:31):
should be looking at this with alevel of decency and a fairness
of the application of the law.
This is rule of law.
This is all these base things.
This is natural rights that thegovernment shall never take it.
But at the end of the day, whatyou said in the beginning of
this is perfect.
You better be right about this.
You better make sure, withoutdoubt, without a reasonable
(19:55):
doubt, that you did not get thiswrong.
And this is what makes people soconcerned when we're looking at
the Eighth Amendment and wherewe're looking at things like the
death penalty and how to applythe death penalty, that if so
many of these cases come back,that there should have been
doubt, or the the informationwasn't there for the jurors to
have doubt, or it was, it wasthe system wasn't being used the
(20:20):
way that the constitutionalframework set it up, then we've
got a problem.
But that's our job.
That's our job as people, ascitizens, to say we want a fair
and just system.
So we have to watch it, we haveto measure it, we have to ask
questions, we have to tease itapart.
Because at the end of the day,you know, I go back to
Blackstone, and this is 1600s inEngland.
(20:42):
And correct me if I get itwrong, Liz, because sometimes I
will forget the exact timeperiod.
But Blackstone is who comes upwith the idea that you have to
have create a system that is soright to ensure that people who
are innocent are not, are not atthe the mercy of a bad system,
that one person getting free isworth missing 10 because that
(21:07):
one person was innocent and thatis not okay.
That's what we frame ourconstitution on.
We frame it on a fear of thegovernment overstepping its
boundaries.
That's the the structuralconstitution, that's the Bill of
Rights.
We don't trust man to get itright in the system.
So we better put a lot of checksand balances in here to get it
right.
(21:27):
And again, the 14th Amendmentcomes around and says, guess
what?
We're not, we're a littleparanoid about the states too.
And so I don't think that likehaving having a reasonable
suspicion that our governmentcould get it wrong or our courts
could get it wrong is not a badthing.
But we need to step in andputting strong guardrails to do
right at the same time to ensurethat people are protected,
(21:49):
because the role of thegovernment is to keep the
citizens safe and protected.
I do want to tease out thebinary note that we do of the
perpetrator or the personcausing harm and the victim.
When we really look at thesethings for women at least, and
it's similar to men, but forwomen, it's 70% of those people
are exactly the same person.
(22:09):
So the person that committedharm is also a person that has
been victimized.
So we can't separate it becausebinaries are real easy, and
that's not life, and that's nothuman beings either.
SPEAKER_00 (22:20):
Yes.
And I'm glad you said thatbecause I do want to.
The podcast we did on theEastern State Penitentiary for
the Arizona Civics podcast, Iwill link it in our show notes.
Curry and I, I mean, we reallyget into like what is the
purpose of the justice system,how many people the justice
system touches.
Because I think that there aretimes where people are like,
(22:40):
well, that doesn't apply to me,whatever.
It it widely applies, whetheryou know somebody who is
incarcerated, we talk aboutchildren, we talk about solitary
confinement, like there is somuch more to this conversation.
But Arizona or the ArizonaCivics podcast give us gives us
the long form.
This is kind of the short form.
(23:01):
Dr.
Sonder, is there anything elsethat you want people to know
about the Eighth Amendmentbefore we kind of close out this
podcast?
SPEAKER_01 (23:10):
I just want to take a real quick beat back to your
last question about modernconversation.
So I think it was two years ago,maybe three years ago, the
Supreme Court case on lethalinjection.
And I I feel like such a weirdothat I'm getting you guys jazzed
about this by talking aboutlethal injection.
Fascinating case.
Absolutely fascinating.
(23:30):
I believe it didn't go for fullreview.
I believe it went for anexpedient review.
So you're gonna have to look alittle bit closer and we'll
hopefully find it and link it inthe in the podcast notes.
I want you to look at that onebecause I had I had a lot of
grappling trouble with that onebecause some people have a
different reaction to lethalinjection.
(23:52):
And so the question was reallyaround the Eighth Amendment and
how their body reacts to lethalinjection and what is the level
of pain, pain that goes throughto be able to apply that ruling
of the courts that this person'slife should be terminated.
And and no doctors will do it,and medical facility will not do
(24:15):
it because when we look at ourdoctors, they swear an oath to
uphold human life.
And so there are no doctors andno nurses in that system that
are applying it.
That was for me kind of thismoment of like, whoa, whoa,
whoa, what's going on here?
So I I I put it back to you allto say, wait a minute here, what
(24:36):
are how are these societal normsand these societal moments and
standards of decency applying inreally complex ways in our
justice system?
And how do we, knowing that,does that make you think
differently about thatparticular case?
And I'm not saying about, youknow, people come at the death
(24:58):
penalty in a lot of differentways.
And everybody has, in some ways,a moral and an ethical, a legal,
and a human way that they'recoming at the death penalty.
And I think what's important forus as people in this community
is to put it all on the tableand talk through it.
Because I think thoseperspectives or how we elevate
ourselves as a society to cometo consensus and say, who do we
(25:20):
want to be?
And what do we feel isappropriate and decent in our
society?
SPEAKER_00 (25:27):
Because there have been many instances where lethal
injection has not worked thefirst time.
And I believe you're talkingabout Ham versus Smith in 2023.
So the court had declined toreview the lower court's
holding.
But it is it's an interestingconversation.
And I think, you know, youtalked about getting jazzed
(25:48):
about it, but it is, and I lovethat you frame it from these all
these different lenses, right?
Of we have to really understand.
We can't just harm peoplebecause they've harmed others.
Like that's not how the systemworks.
We still have to have humandecency, doctors uphold an oath,
and you know, it's just aninteresting again.
(26:10):
I feel like we can talk aboutthis.
We could probably have an entireseries on the Eighth Amendment
and what is cruel and unusualpunishment.
But again, please look up thesecases.
I will put these all in the shownotes.
Dr.
Sautner, I feel again, I feellike you and I can talk about
this forever because we bothnerd out on it.
And Supreme Court cases areinteresting because they show
(26:31):
sometimes what the standards ofthe time are, but they also show
that it's not linear, right?
It's not, like you said, it'snot on a binary.
There's so there's so muchnuance to consider.
So again, thank you.
Also, if you are inPhiladelphia, go to the Eastern
State Penitentiary.
It is so fascinating.
And please listen to, I keepsaying it, but please listen to
(26:55):
the podcast on Eastern Statebecause I learned so much.
It is just, it's just sofascinating.
So, Dr.
Sutner, thank you so much.
SPEAKER_01 (27:04):
Thank you for having me and excited to you know get
out there and talk about thejustice system more and more.
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