Carol Steiker
speaker
64 appearances
1 recordings
1 series
first heard Jan 2025
last heard Jan 2025
Carol Steiker’s voice in public audio — every appearance, attributed to the second.
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Utah was not yet a state. It was a federal territory. And it was settled then, as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. So he didn't want to use hanging because you don't bleed when you're hanged, but you do bleed when you're shot. And so Mormon territory used the firing squad as a form of execution.
All right, here's the original text of the Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
So what's interesting, the court first says, very hard to know what this means. But then they go on to say, the one thing we can say with some certainty is that it had something to do with torture. That torture's not good. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.
My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death, the Supreme Court and Capital Punishment. In 1878, the question was whether firing squads were cruel and unusual punishment. Court says that's not torturous. It's not unnecessary cruelty. And we know that because, you know, we've used it a lot as a punishment for deserters in wartime.
So the court says we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.
So there was a really unpopular king there.
King James II, who was Catholic and was thought to be favoring Catholics over Protestants, so there was a lot of Catholic-Protestant tension.
King James was not happy about that and wanted to punish hundreds and hundreds of people who he felt were involved in some way in this rebellion against him.
known now historically as the Bloody Assizes, court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.
Some in really grotesque ways, like being drawn and quartered, which means having your four limbs tied to four horses who would be sent off in different directions to pull your body apart. Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally or put in pillories.
So we're talking four years after the bloodiest sizes, the English Bill of Rights was passed and makes specific reference to the depredations of King James II.
The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president, but what if he turned out to be like a king?
And then when the original Constitution was proposed, before there was a Bill of Rights added to it, it was the delegation from Virginia that suggested that the Eighth Amendment be added to it.
The framers saw themselves not only as learning from the past, but as going further and breaking from the past. These guys were revolutionaries. I mean, we think of them today as like old dead guys, you know, who are on the dollar bill or whatever. But they really saw themselves as revolutionaries in many ways, including in punishment practices.
At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?
So there was some question about, like, what does this language exactly mean and which practices that we now accept as sometimes necessary are going to be deemed to be cruel and unusual going forward?
And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles. And then followed by a form of civil death in which he would be under surveillance and deprived of the right to vote or hold any office until the end of his life.
Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.
So sort of patting, you know, us Americans as being more advanced, if you will.
And there's some really interesting language written in Weems. And this is the language. I'm going to read it to you. Legislation, both statutory and constitutional, is enacted from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes.
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