The Arbiters of Decency: A Study of Legislators' Eighth Amendment Role

51 Pages Posted: 11 Mar 2018 Last revised: 4 Nov 2018

See all articles by David Niven

David Niven

University of Cincinnati - Department of Political Science

Aliza Cover

University of Idaho College of Law

Date Written: 2018

Abstract

Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position on the death penalty, their subject matter, and any references they made to the courts and Constitution. We also collected basic facts about the legislators, including about political party, race, education, and profession. We present our quantitative and qualitative findings here.

Building upon these findings, we critically examine the Court’s use of legislation as an “objective indicator” of “evolving standards of decency.” We identify disconnects between legislative outcomes and community “standards of decency,” and we analyze legislators’ understanding of their constitutional significance and why their level of self-awareness may matter. Finally, we consider how legislative debates – rather than outcomes alone – might provide insights into contemporary values. In particular, the strong concern we observed over wrongful execution may support more robust Eighth Amendment protections for those claiming actual innocence.

Keywords: Death Penalty, Capital Punishment, Eighth Amendment, Constitutional Law, Legislation, Evolving Standards of Decency, Innocence, Legislative History

Suggested Citation

Niven, David and Cover, Aliza, The Arbiters of Decency: A Study of Legislators' Eighth Amendment Role (2018). 93 Wash. L. Rev. 1397, Available at SSRN: https://ssrn.com/abstract=3135539

David Niven

University of Cincinnati - Department of Political Science ( email )

1110 Crosley Tower
Cincinnati, OH 45219

Aliza Cover (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
69
Abstract Views
616
Rank
598,765
PlumX Metrics