Evolving Away from Evolving Standards of Decency

Abstract

In Graham v. Florida, the Supreme Court held that imposing a life sentence without possibility of parole on a juvenile nonhomicide offender violates the Cruel and Unusual Punishments Clause. To support this conclusion, the Court found that there was a societal consensus against the punishment, despite the fact that such punishment was authorized in the federal system, thirty-seven states, and the District of Columbia, and despite the lack of any apparent trend toward abolition of the punishment. Graham represents the fourth time in the last eight years that the Supreme Court has found a societal consensus against a punishment that appeared to enjoy significant public support. Graham is the second case in the last two years in which the Court found a societal consensus against a punishment that appeared to be increasing, rather than decreasing, in popularity.

The Supreme Court’s decision to invalidate punishments despite their popularity seems fine at first blush. The Bill of Rights was designed largely to protect unpopular minorities from the tyranny of the majority. And what minority group is more unpopular, and thus in need of protection, than convicted criminals?

But there’s a deeper problem here. Since 1958, the Supreme Court has used the “evolving standards of decency test” as the primary standard for determining whether a punishment is cruel and unusual. This test holds that a punishment is unconstitutional if it no longer comports with societal moral standards, measured primarily in terms of legislative enactments and jury verdicts. But in Graham and several other recent cases, the Court has found certain punishments to violate current standards of decency despite the fact that many legislatures approved them and that juries continued to impose them.

These cases reveal that the Supreme Court’s Eighth Amendment jurisprudence is evolving away from any real reliance on the evolving standards of decency test. Although the Court gives lip service to the idea that there must be a societal consensus against the punishments it strikes down, it no longer uses the test as a true ground for its decisions.

This change in the Court’s approach is not necessarily a bad thing. The evolving standards of decency test is inherently majoritarian, and is thus a poor protection for criminal offenders when public opinion turns against them. Unfortunately, the Supreme Court has effectively replaced this test with an unfettered reliance on its own “independent judgment,” with no external constitutional standard to guide its decisions. This approach to constitutional jurisprudence runs contrary to basic principles of separation of powers, and does not appear to be sustainable over the long run.

As the Supreme Court prepares to leave the evolving standards of decency test behind, it is a good time to reexamine the original meaning of the Cruel and Unusual Punishments Clause. In a prior article, I have shown that the word unusual originally meant “contrary to long usage,” and that the Cruel and Unusual Punishments Clause was originally meant to prevent legislatures and courts from ratcheting up the severity of punishment significantly beyond what prior practice would allow. I will suggest in this article that the Supreme Court could probably have reached substantially the same result it did in Graham by relying on the original meaning of the Cruel and Unusual Punishments Clause. Had the Court done so, the result would have been more plausible and the Court’s jurisprudence in this area more sustainable.

Keywords: Cruel and Unusual, Eighth Amendment, Punishment, Constitution, Bill of Rights, Evolving Standards of Decency, Criminal