Why The Eighth Amendment Still Shapes Who We Are As A Society

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.

Eastern State Penitentiary Episode

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Chapters

• 1:35 Welcome And Guest Introduction
• 2:09 Why The Eighth Amendment Grabs Everyone
• 4:31 Reading The Text And Key Terms
• 6:11 Unusual Changes Over Time
• 7:08 Does The Punishment Fit The Crime
• 8:56 Incorporation And The 14th Amendment
• 9:59 Death Penalty And Evolving Decency
• 12:28 Science, Youth, And Mental Capacity
• 14:31 Juvenile Cases And Public Response
• 16:06 Defining Standards Of Decency
• 17:14 Solitary Confinement And State Norms
• 19:11 Error Risk And Guardrails In Justice
• 20:56 Lethal Injection And Medical Ethics
• 22:56 Closing Thoughts And Further Resources

Transcript

SPEAKER_00: 0:49

Welcome back, everyone. Today I am very excited to have my friend and civic colleague, Dr. Carrie Sodner, who is the president and chief executive officer of Eastern State Penitentiary Historic Site, a museum that interprets the legacy of America's criminal justice reform from the site of the world's first penitentiary. And we have an entire podcast episode that I will link in our notes about Eastern State Penitentiary. And it is wildly interesting, highly suggests it. But, Dr. Sottner, thank you so much for being here. What is the Eighth Amendment? Well, thank you for having me.

SPEAKER_01: 1:28

And it's really exciting to talk about all this history and all of the amendments. So thank you so much for doing this program because I know these are short little bits, but we could talk about this stuff forever. And I find, I know this sounds so weird. I find the Eighth Amendment one of the most fascinating. And oddly enough, I'm just gonna be honest about it, one of the most successful. It is a can of worms that you open, but everybody's interested in the Eighth Amendment. So ever at a party and talking to a seven-year-old or an eight-year-old and have nothing to talk about, bring up, hey, what do you think about that Eighth Amendment? I will bet you a million dollars that kid is all in. Because there is something intrinsically driven in every human being to talk about when things are fair and unfair and just and unjust. And that's what the Eighth Amendment really looks at. It says, is this punishment just? Is it fair? Is it appropriate? All those things. Now I'm gonna read the actual words in a minute, but I want to let y'all know that we can have unconstitutional parties conversations that talk about these things. And the Eighth Amendment is the easiest into the Constitution.

SPEAKER_00: 2:42

I love that you talk about the accessibility for little kids too, right? Because I know that somebody listening was like, what would a seven-year-old know about the Eighth Amendment? But when you're talking about fairness and whether something is just or not, I cannot tell you. I did teach kindergarten how many times kids would say, Well, that's not fair. Even middle schoolers do it, high schoolers do it, adults do it. That's not fair. So having these conversations is so interesting. So, what is kind of the history behind the Eighth Amendment?

SPEAKER_01: 3:16

Yeah, and it really is thinking through like the colonies saying, what is fair and what is just and what is appropriate. That's a word appropriate is the word that, you know, again, if you're doing a constitutional bingo card, especially with court cases, a lot of the times you'll see the word appropriate. And we get a lot of appropriate Supreme Court cases findings because they're they're not gonna say this is what it is, this is what it's not. They're gonna use words like appropriate, they're gonna use a word like usual and normal and typical, like all these same words. And so let's read, let's read the Eighth Amendment first, because rule number one don't take somebody's word for it. Go back to the actual text of the constitution and read what it actually says and then pick it apart. That's our job. So excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. So when we think about those, I, you know, I love to write this on a piece of paper, on you know, a big giant post-it note, on all these pieces, and I start to diagram the sentences for lack of a better word, even though I hated diagramming sentences in school. But we think of like, what does the word excessive bail mean? And it says shall not be required, nor excessive fines imposed. Again, they're saying excessive is not okay, excessive is not okay, nor cruel and unusual punishment inflicted. So, what it's telling you by these words, and I find this amendment more fascinating than almost any other amendment and any other part of the constitution, is it's saying there's some discretion on this, there's some social normalization on this that is helping define what it means. We talk quite often in our constitution, and especially in the news today, about originalism and about, you know, constitutional interpretation today, like the modern interpretation. And we we know we have methods of in understanding and interpreting the constitution. And there's so many great conversations on this. The Eighth Amendment is saying to you, unusual might change over time. What people thought was unusual punishment 400 years ago, a thousand years ago is very different than what we may think of unusual punishment today, or what is normal or typical punishment? And so this has an evolving understanding based on what does society deem is usual, normal, excessive, non-excessive, not you, not common, not usual. That's why they put those words into it. And it was intentional. So you can pick something from the 1600s, a punishment that was deemed normal. It was typically used at the time. That's what would make it seem to be usual, normal, typically used, and say that is very unusual in the 1800s. So go ahead, Liz, pick one, pick anyone. Pick any punishment, drawing and quartering. Great one. Big fan of Scottish history. William Wallace, an amazing story, really, really fascinating, extremely depressing. I will tell you, I lived in Scotland the first time I got really deep into understanding William Wallace's history. And I remember getting to the end 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 and quartering, which is extremely violent, extremely painful. If that was put on the docket as a prescribed punishment for somebody's crime today, that would be considered unusual. It would be considered cruel and unusual. And so in the 1600s, in the 1500s, that may have been typical and normal and not considered cruel and unusual. But it also says it does the punishment fit the crime. So those two things play into cruel as well. So somebody could have stolen a loaf of bread and be given life. And that you can say, that's cruel. That doesn't fit. It doesn't match. There's a technique that you're taught as a kindergarten teacher. And Liz, I know you were a kindergarten teacher that you work with kids about that the size of the size of the issue and the size of the reaction should line up. So the size of the problem, we used to say all the time, okay, how big's the problem? How big's your reaction? Because as little kids, we're also talking about things that are fair and unfair, but we're also really emotional about that. So sometimes we're like, that's not fair. And it's actually is pretty fair. So you have to look at those. And that's what these words are looking at too. So does the crime and the punishment fit each other? And if they do not, then it is unjust and unfair. And the Eighth Amendment will protect you from the government doing that, protect you from the federal government doing that at first. And then after incorporation of the Reconstruction Amendments and incorporation over the years, you start to see that being truly incorporated in the 1950s, the 1960s, and the 19, all the way to the 1990s. Remember, those Bill of Rights in 1791, when they're spelled out and written out and amended to the Constitution, they apply to what the federal government can't do. Yes. It isn't until later, after the Reconstruction Amendments, and then the process of incorporation, that these most of the amendments are incorporated saying the state government can't do that either. So incorporation, different topic, different podcast, but also one that really applies because these things aren't just so simple. They're really connecting the dots between due process in the constitution, Eighth Amendment to the 14th Amendment and incorporation as well.

SPEAKER_00: 9:09

So can I ask, I think more of a modern day example? Because I was like drawing and quartering or tarring and feathering, right? That's like that is that's way back when. But we're looking at like now, like things like the death penalty. I know that that's been a conversation within the Eighth Amendment and you know, the incorporation of that, right? And there are still some states that have death penalty, there are some states that don't. But can you kind of walk us a little bit through death penalty, whether or not that's cruel and unusual, and like kind of who is allowed to get the death penalty and who is absolutely not allowed to get the death penalty?

SPEAKER_01: 9:50

It's a it's a great question. And this this is when you'll hear this line from famous court cases, uh evolving standards of decency. And that is why am I blanking on his name? It just went right out of my head as soon as I quoted him. Warren, Earl Warren, sorry, it took me a minute to get his name back. So it was Earl Warren that comes up with this. Like, how do we they've been using it for a while, they've been saying this about the Eighth Amendment, but now he starts to coin the term. And then we see this evolving standards of decency. It's saying, what do we find as a society today? What's what is what do we see as a decent application of the law, of humanity, of human dignity, even when a person maybe has taken somebody else's life and dignity and had no standard of decency for them. And this is the part about the constitution. When you look at all these cases, it's usually not the people you like that the constitution stands up for. It's almost always the people you don't like that it stands up for. But that's the case of a true just society, is if we can stand up for those who have the smallest voice, those that we don't deem, maybe personally, as good people, the law sticks to everyone and it should be fairly applied to everybody. That's why sometimes these cases are the worst, like the worst of us, the worst of humankind's behavior. We see that terrible heavier and we still say it has to apply here too, because that's where you get a fair and just system. Number one, when you look at court cases, especially the death penalty cases, I want us to be really mindful of how many death penalty cases, when examined, are found incorrect. They're the only ones that are truly examined. So let's start there. They're the only ones that looked at. And then we're saying on top of it that a high majority, the majority of them are not being found to be appropriate cases, meaning they should not have come to this outcome. So the reason why we talk about death penalty all the time is one, this is where we're doing the research. And two, do you want the government getting it wrong? Your job as a citizen is to give the power to the government through these laws, through these policies, through these practices, through this constitution. We are sovereign. We are giving them the power. And the thing that is the scariest is if they apply it wrong. Because how about if they apply it to the innocent? How about if they apply it to your friend? And so we have to look at it like that. And over the years, we have questioned that and said, what is the standard of decency around kids, around people with mental disabilities, people with special needs, and do they apply the same way? And you know what comes into play here huge and creates a huge change. Science. So the more that we learn about how brains work, the more that we understand about how brains are different, can we apply the same rules to people who may not be able to, physically, mentally able to understand outcomes, understand A plus B winds up being C. Should you be held accountable for C when you didn't know that would happen? And so that is where we've seen this law kind of and the application of the Eighth Amendment change over time and saying, what is what is a just society that we put a 15-year-old in and have them have a death sentence when we now know that their brain doesn't work the way it does and doesn't have that outcome, that executive functioning to understand, oh, if I do this, this will happen. And you know what's pretty fascinating about this? One of those cases about a 15-year-old was actually a 15-year-old that was held at Eastern State Penitentiary Historic Site in Philadelphia. I know. What happens when you're a history nerd like us and you go down rabbit holes at night and you have access to an archives? And it is, it was a 15-year-old, and he actually murdered his grandmother, who was his caregiver at the time. And we know that there was a lot now today. We see that there was a lot of mental health issues going on there. We see that there was abuse going on there. And what we find from the case is that the community of Philadelphia stood up and across Pennsylvania 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 sentence to be moved forward. That goes to a list of cases that go all the way up to the Supreme Court and that starts to change how we see kids in punishment. Do we see it as a cruel and unusual 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 in our society over the last 100 years. And at times people have said, absolutely no, that is not acceptable. And then there was a rise in the 80s, the 70s and the 80s, and then it dropped back down again as more science came into play and more understanding of the the way our brain works. But we look at that and we say, how does society see it? And how does society react to this as well? When you look at the 70s and 80s, you have a huge epidemic in our society of violence from young people. We have a high percentage, high percentage of our population is under 18. And you also have a rise in crime under 18. And you see a bipartisan movement to increase punishment as well. We're talking Clinton, we're talking, you know, even before Clinton, we're talking Nixon, we're talking Eisenhower across the board. So when we look at these, we look at these in a nonpartisan way. We look at the law, and we look at the standards of decency in our community as well. And what is norm and what is not. When they looked, the Supreme Court looked back at the state cases, but they found across the states that the norm was people with mental disabilities and juveniles should not be sentenced to death. And so that's why the Supreme said, okay, we're gonna settle this, we're gonna move this forward.

SPEAKER_00: 16:18

It's it's so interesting. And I love that I think part of the thing that frustrates people is that the constitution creates all these complications, but I also love that it does because when we're talking about someone's life, right? We're talking about life, liberty, and the pursuit of happiness from the Declaration of Independence. When we're talking about taking someone's life as a punishment, there needs to be complications. There needs to be nuance because we can't just say, you know, I now I'm literally gonna, as soon as we're done with this, go down this rabbit hole of the kid from Eastern State Penitentiary. And, you know, even looking at execution methods, how those have changed, right? It is, it's so fascinating. And can you you talked about standards of decency? Can you just quickly explain to our listeners what is standards of decency? What does that mean? Right? Because here in Arizona, we might have different standards of decency than in Pennsylvania or small towns versus big like there's so much nuance to it. So what does standards of decency mean?

SPEAKER_01: 17:26

Yeah, the courts are really trying to come up with a with a test and say, what is the average and the norm? Remember, when you're looking at the Supreme Court, they're looking at when they're, you know, think cases get to the Supreme Court because there's an inconsistency at the lower courts level. And so the the methods and the tests that come up through the court's process, no matter what the topic is, are really trying to say we started noticing a pattern. And in that pattern, from looking at the the original constitution and how it was framed at the time, and looking at these cases coming up from the 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 a people that our standards are, that our standards of how do we apply punishment? How do we apply what is cruel, what is unusual. And so that's what they're trying 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 close, the law has to be consistent for all. The law has to be consistent that it's not applying something differently because you're a female to a male, because you you are black because you're white. And this is when we they have to look at the standard across the society and not in just one area, but across the entire society. Now, what we have in the States is you're right, a little bit of discussion and dialogue and debate around these issues, and where do we level that and where do we see it's okay? And we look at things like solitary confinement. You could say that we know by like medically, that two more than two weeks, even under more than two weeks, creates an extreme mental health damage to human beings to be in solitary confinement for more than two weeks. That is life-altering, changing your chemical makeup of your brain. And that's just standard, not if you had additional medical needs and mental needs before that. 25 states have deemed it inner it illegal in that state to keep somebody in solitary confinement for more than two weeks. 25. Not everybody, even though we know this. So, where how does this kind of dialogue come up and go around it? And where does the Eighth Amendment come into play around this? But it is very hard. It's very hard when you see pain and there is trauma, and there is trauma in all levels of the criminal justice system, both by the people that have committed an offense, a harm, and by those who have received the harm and their families as well. But this is why we go back to the system should be blind and should be looking at this with a level 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 the government shall never take it. But at the end of the day, what you said in the beginning of this is perfect. You better be right about this. You better make sure, without doubt, without a reasonable doubt, that you did not get this wrong. And this is what makes people so concerned when we're looking at the Eighth Amendment and where we're looking at things like the death penalty and how to apply the death penalty, that if so many of these cases come back, that there should have been doubt, or the the information wasn't there for the jurors to have doubt, or it was, it was the system wasn't being used the way that the constitutional framework set it up, then we've got a problem. But that's our job. That's our job as people, as citizens, to say we want a fair and just system. So we have to watch it, we have to measure it, we have to ask questions, we have to tease it apart. Because at the end of the day, you know, I go back to Blackstone, and this is 1600s in England. And correct me if I get it wrong, Liz, because sometimes I will forget the exact time period. But Blackstone is who comes up with the idea that you have to have create a system that is so right to ensure that people who are innocent are not, are not at the the mercy of a bad system, that one person getting free is worth missing 10 because that one person was innocent and that is not okay. That's what we frame our constitution on. We frame it on a fear of the government overstepping its boundaries. That's the the structural constitution, that's the Bill of Rights. We don't trust man to get it right in the system. So we better put a lot of checks and balances in here to get it right. And again, the 14th Amendment comes around and says, guess what? We're not, we're a little paranoid about the states too. And so I don't think that like having having a reasonable suspicion that our government could get it wrong or our courts could get it wrong is not a bad thing. But we need to step in and putting strong guardrails to do right at the same time to ensure that people are protected, because the role of the government is to keep the citizens safe and protected. I do want to tease out the binary note that we do of the perpetrator or the person causing harm and the victim. When we really look at these things for women at least, and it's similar to men, but for women, it's 70% of those people are exactly the same person. So the person that committed harm is also a person that has been victimized. So we can't separate it because binaries are real easy, and that's not life, and that's not human beings either.

SPEAKER_00: 23:07

Yes. And I'm glad you said that because I do want to. The podcast we did on the Eastern State Penitentiary for the Arizona Civics podcast, I will link it in our show notes. Curry and I, I mean, we really get into like what is the purpose of the justice system, how many people the justice system touches. Because I think that there are times where people are like, well, that doesn't apply to me, whatever. It it widely applies, whether you know somebody who is incarcerated, we talk about children, we talk about solitary confinement, like there is so much more to this conversation. But Arizona or the Arizona Civics podcast give us gives us the long form. This is kind of the short form. Dr. Sonder, is there anything else that you want people to know about the Eighth Amendment before we kind of close out this podcast?

SPEAKER_01: 23:56

I just want to take a real quick beat back to your last question about modern conversation. So I think it was two years ago, maybe three years ago, the Supreme Court case on lethal injection. And I I feel like such a weirdo that I'm getting you guys jazzed about this by talking about lethal injection. Fascinating case. Absolutely fascinating. I believe it didn't go for full review. I believe it went for an expedient review. So you're gonna have to look a little bit closer and we'll hopefully find it and link it in the in the podcast notes. I want you to look at that one because I had I had a lot of grappling trouble with that one because some people have a different reaction to lethal injection. And so the question was really around the Eighth Amendment and how their body reacts to lethal injection and what is the level of pain, pain that goes through to be able to apply that ruling of the courts that this person's life should be terminated. And and no doctors will do it, and medical facility will not do it because when we look at our doctors, they swear an oath to uphold human life. And so there are no doctors and no nurses in that system that are applying it. That was for me kind of this moment of like, whoa, whoa, whoa, what's going on here? So I I I put it back to you all to say, wait a minute here, what are how are these societal norms and these societal moments and standards of decency applying in really complex ways in our justice system? And how do we, knowing that, does that make you think differently about that particular case? And I'm not saying about, you know, people come at the death penalty in a lot of different ways. And everybody has, in some ways, a moral and an ethical, a legal, and a human way that they're coming at the death penalty. And I think what's important for us as people in this community is to put it all on the table and talk through it. Because I think those perspectives or how we elevate ourselves as a society to come to consensus and say, who do we want to be? And what do we feel is appropriate and decent in our society?

SPEAKER_00: 26:14

Because there have been many instances where lethal injection has not worked the first time. And I believe you're talking about Ham versus Smith in 2023. So the court had declined to review the lower court's holding. But it is it's an interesting conversation. And I think, you know, you talked about getting jazzed about it, but it is, and I love that you frame it from these all these different lenses, right? Of we have to really understand. We can't just harm people because they've harmed others. Like that's not how the system works. We still have to have human decency, doctors uphold an oath, and you know, it's just an interesting again. I feel like we can talk about this. We could probably have an entire series on the Eighth Amendment and what is cruel and unusual punishment. But again, please look up these cases. I will put these all in the show notes. Dr. Sautner, I feel again, I feel like you and I can talk about this forever because we both nerd out on it. And Supreme Court cases are interesting because they show sometimes what the standards of the time are, but they also show that it's not linear, right? It's not, like you said, it's not on a binary. There's so there's so much nuance to consider. So again, thank you. Also, if you are in Philadelphia, go to the Eastern State Penitentiary. It is so fascinating. And please listen to, I keep saying it, but please listen to the podcast on Eastern State because I learned so much. It is just, it's just so fascinating. So, Dr. Sutner, thank you so much.

SPEAKER_01: 27:50

Thank you for having me and excited to you know get out there and talk about the justice system more and more.