329. What is the 8th Amendment?

Today, Emma and Brittany break down the 8th Amendment to the Constitution.

Here’s a transcript of our conversation:

Brittany: Hi, Emma.

Emma: Hi, Brittany.

Brittany: So, we haven’t talked about amendments in a while, and I think it’s because I don’t wanna say we went through the important ones cuz they’re all important. But I went through the ones that were my favorite basically. But the Eighth Amendment is one I think that doesn’t get enough credit for being as important as it is cuz I think things like, you know, property rights or like un warrants or warrants and like search and seizures, things like that, they get a free speech, you know, gun rights, those get a lot of attention. So the Eighth Amendment, though is very important. So the Eighth Amendment is pretty straightforward. It prohibits the federal government from imposing excessive bail, excessive fines, and cruel or unusual punishments, which sounds very scary because it is. So let’s break this down a little bit. I’m gonna start with, bail. So let’s talk about excessive bail. The word excessive means like too much think too big, right? Too much. So when a person is arrested, they have to go to court, everybody gets their day in court, right? But that doesn’t happen in like right? When you get arrested, if you were to, you know, get pulled over for a speeding ticket and you had a warrant out for your arrest for something you did a while ago and you get taken to jail, you’re not gonna go to court that night. So you’re gonna have to wait for that day. So if you don’t wanna stay in jail, then you can pay a fine. That is basically a promise that says, I’m paying this to let you know that I’m not gonna run away before my court appearance, even though I guess you still could, but you know what I mean. The government needs that money to basically be like, all right, you just gave us a deposit promising to show up for your court appearance. So this was put in the constitution to protect individuals from being ha held in jail for a long amount of time before they’ve gone to court, right? Because think about this, the whole point of a court case is to prove if a person is guilty or innocent, right? So holding them in jail until their court date is basically saying you are guilty because that’s what it is. You know, we’re incarcerating you because you did something bad, but you can’t actually say that a person did something bad until they’ve gone to court. Yeah. Because of our legal system, we have a very important rule and that is that everybody is innocent until proven guilty. So you cannot say somebody has done something until a court, or, you know, a judge or a jury says, Nope, you did this. They look at all the evidence and they make that decision. So making sure bail wasn’t super expensive protects people who may not have a lot of money. Right. The founders didn’t want it to be that you only got out on bail if you were rich. So we’ve had a huge problem with that though in this country, like a huge problem. So governments are setting bail amounts way too high. And what that means is lower-income people who are arrested, they can’t afford to make that payment where people with more money can and there’s things they’re called like bail bonds where you can call and get assistance, but from what heard bill bonds, like there’s so much interest meaning, and actually I think we had a whole episode on interest a while ago. Yeah. But that means like, so every month that you have to make a payment, you’re actually paying an extra percentage. Like that’s why they give you the money. Right. Cause it wouldn’t make any sense for a company to just say, yeah, here’s some money. Pay it back. Right. So they charge a little bit extra too, that’s how they make their money on it. So the bail bonds are not always a good option for people cuz that’s gonna end up costing them way more. So this happens all the time and as we’re learning now, you know, it’s actually a huge violation of the eighth amendment. But just some instances like this aren’t just something like, oh, that would be sad if that happens. It happens a lot, especially if we look at like the drug war, right? People will get pulled over maybe and they have, you know, cannabis or marijuana in their car. And a lot of times, and I’m not saying only low-income people do that because there’s a lot of people, that’s why it’s almost becoming legal, right? because there’s so many people. But there’s a lot of people who are not only low-income, but maybe they’re minorities, right? So they get thrown in jail and then they can’t afford to get out. And this is causing a huge imbalance in our, prison system. And I know we have, last time I checked we had an even bigger prison system than China, which, you know, we’ve had Wow. Yeah. We’ve had a few. Wow. Yeah. We’ve had a few episodes, talking about China, Connor and I, cuz it scares me. And so if you think about that, it’s crazy, right? And it’s because we’re throwing people away for little things. But, this perpetuate like starts a really bad cycle that continues because we put people in jail for bail. Maybe they can’t get their day in court, maybe the court case gets pushed back and they’re just stuck in a jail cell rotting before they’ve ever been convicted of anything. Yeah. So this is very, very scary. There’s also something to say for this though, and that is that these are specifically for people, I mean the bail reform movement, I would call it. Cuz there’s a big movement right now. Yeah. Saying like, let’s reform this, let’s make it so bail is not this excessive and let’s make it so it’s only for violent offenders. Because right now, if you were involved in a nonviolent offense and you haven’t hurt anyone, violence means, you know, hurting somebody. So if you haven’t hurt anybody, why do we need to keep you locked up? You may have committed something that’s a crime and you need to go to court for that, but it seems like non-violent crimes are the ones that we need to be worried about. You know? Oh, what if this person gets out and does something? Again, somebody could lose their life. Somebody could get very hurt. So, the bail reform movement is saying like, you know, maybe we abolish bail altogether. We get rid of it for these non-violent offenses and keep it only for violence. So that I think is really important, because again, it’s crazy to me that this has been allowed to happen because if you read the eighth amendment, you’re like, wait a second, this is not like it says flat out in it. Like, you can’t do this. So Yeah. Crazy stuff. Emma, do you wanna tackle the next part of the eighth amendment?

Emma: Yes. The next part talks about something called cruel and unusual punishment, which sounds crazy. And it is crazy because we have a rule in our legal system that says the punishment must fit the crime. So that means that your punishment can’t be so outrageous that it’s way worse than what you did. So say if you stole something from a grocery store or you know, something small like a piece of gum off the shelf, the government can’t cut off your hand. Which by the way, that was a pretty radical concept at the time of these amendments being drafted because there were parts of the world where. Yes. If you stole something, you could be beheaded, you could be.

Brittany: The Aladdin.

Emma: Yeah, exactly.

Brittany: Remember Aladdin or Jasmine’s hand, like it almost gets cut off.

Emma: Exactly. Yeah. There were all around the world. It was more common than not to have crazy outrageous punishments like that even being put to death for, you know, considerably small crimes. So basically this whole idea is that, you know, a punishment needs to fit the crime. If you got a life sentence in jail for speeding in your car or for jaywalking, that would also be cruel and unusual. but there’s another element of this that’s very interesting and quite controversial and it’s torture. So a lot of what the government was trying to do here was basically say, you know, we can’t torture people to try and get them to confess stuff or to try and, you know, punish them for a crime. It needs to be a fair punishment. And something interesting that, and something really bad that our government also does kind of secretly and doesn’t want people to talk about is we have tortured, you know, people that we’ve accused of being in wars against us and accused of terrorism and they haven’t been proven guilty. And we find all sorts of crazy ways to get around that. Like doing it in other countries or doing it in Cuba and Guantanamo Bay, I believe. And there are all of these weird things that our government does to basically get around the Eighth Amendment and get around our own rules that we’ve made for ourselves saying that we can’t do these cruel and unusual punishments. And I don’t think we necessarily need to go into exactly what those are, but I will say, they’ve done some really terrible things to people, to human beings who have not been proven guilty. And that’s something that a lot of people have a huge problem with. And this was a big, sort of topic of conversation when we had a lot of involvement in the Middle East. We still do have quite a bit of involvement, but especially when it was kinda at its peak when we were in, Iraq and dealing with all sorts of these, you know, war on terror type things. Torture was a big part of that. And it’s a really negative, element of our country’s history in my opinion, because it shows that we basically have these rules that we hold for ourselves, but then we don’t treat the rest of the world by our own rules. And I think that’s a big problem. Another thing that we’ve, that we kind of touched on here is the drug war and how, you know, people who are committing crimes that involve drugs, maybe they have, certain drugs in their possession or they’re using something that may be harmful to their body and the government decides to lock someone up for life for doing something that only affects themselves. That’s something that seems pretty cruel and unusual when someone’s making a personal decision. Maybe it’s not the best decision to take drugs, but, you know they make that choice and then the government says, because you chose to do that, you chose to ingest that in your body. We’re going to lock you up forever and you’ll never be able to see your friends and family, or we’re gonna charge you all of this money to be able to get out. Like we’ve talked about bail. So it’s a pretty crazy thing that there are certain things our country will do and everyone just sort of turns a blind eye and kinda pretends not to see it. Or maybe they don’t even understand that we have these rights, to begin with. I think that’s a big reason why it’s so important that we talk about the Bill of Rights and we talk about all of these amendments that protect us because we can’t stand up for ourselves if we dunno what those rights are.

Brittany: No, I think you’re absolutely right. And I think it’s also important to remember why these amendments came about. It wasn’t just like, you know, it might, well no you don’t, might be in danger. You know, blah, blah, blah. The founders and the framers, they saw this firsthand. They lived it, they saw all these terrible things happening and there was no amendment or no written constitution to help them. England has a lot of different documents like the Magna Carta, which I believe we’ve talked about before, that kind of make up this, law of the land, but they didn’t have a written constitution that expressly gives them these rights. And I mean, think about what happened to the colonists when the British soldiers were occupying the territories, right? Yeah. A lot of terrible things happened. Cruel and unusual punishment happened all the time, just drafting the declaration would’ve been, would be gotten all of them killed and hung and all sorts of terrible things. So, and I mean, people were, if you did a crime and you know, against a British shoulder, you could just be thrown in jail to kind of rot there. So these weren’t just made because they sound like good ideas. And I think that’s important to remember with every single amendment we have. I know Connor and I talked about the quartering of soldiers once and how that feels like a silly amendment because I think we think like, well that’s never gonna happen. But I think one thing that the government has shown us time and time again is that the things we think they’re not capable of doing, they’re absolutely capable of doing. Yes. So it’s even, in fact, before you guys were born, Hurricane Katrina was a thing where you did actually kind of have soldiers. Yeah. Occupying literally a state and telling people they had to leave their homes. And so again, you never know what’s gonna happen. But I do think the Eighth Amendment is very important, especially to criminal justice reform. And there’s some real horror stories about, bales and also excessive fines, which we didn’t hit on as much that Yeah. You know, you can’t find somebody, you can’t give somebody a parking ticket for like five, well, no, not $5,000. Nobody would ever do that, right? I don’t think so. Hopefully. But again, maybe, I dunno, I never put anything past any member of the government. So, I think we covered that and I’d encourage all of you to go out and maybe do your own research on some examples of how these things have been violated by the government.

Emma: Yeah, absolutely. And as we kind of wrap up today, again, like Brittany said, They are all the law of the land and they’re all in the Constitution for a reason. It’s because these are real problems that our founders and our framers knew were so important. They actually had to make it a rule that the government couldn’t do this stuff to us. So unless we all know what those rights are, we’re not gonna be able to defend them. And I promise you all if we just forget about these and no one knows what they are and no one cares what they are, and they think, oh, the constitution’s just an old piece of paper, it doesn’t matter. I promised you these rights will go away. So not to be scary, but it’s important that we know these things so that we can protect them. But we’ll wrap it up here today, guys. Thank you so much for listening and we will talk to you all again soon.

Brittany: Talk to you soon.

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