Evolving Standards of Decency

Evolving Standards of Decency

The Eighth Amendment's final clause forbids the infliction of “cruel and unusual punishments,” and it supplies no list of forbidden sanctions and no definition of either adjective.¹ The Court's earliest applications of the Clause were correspondingly narrow: they examined particular methods of execution, such as electrocution and public shooting, to see whether a method was too cruel to pass constitutional muster.² A reading that stopped there would have confined the Clause to the torturous modes of punishment the founding generation already condemned, which is how some nineteenth-century courts and commentators described its design.³ The Court did not stop there, and the rule it adopted in place of a frozen reading is the baseline for everything else in this reading.

The governing formulation comes from Trop v. Dulles, where a plurality wrote that the Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”⁴ Earlier, Weems v. United States had said that the Clause “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”⁵ Building on those statements, Gregg v. Georgia observed that the Amendment has not been regarded as a static concept, and Coker v. Georgia added that the prohibition is not confined to the barbarous methods generally outlawed in the eighteenth century.⁶ The Clause is therefore read flexibly, and its content is set by the standards of decency that prevail now.

The reason for measuring punishment by current standards lies in what the word cruel asks of a judge. Cruelty is a moral judgment, so the yardstick stays the same while its application shifts as the basic mores of society shift.⁷ A claim that a punishment is excessive is accordingly judged by the norms that currently prevail, and neither the practices of 1685, when Lord Jeffreys presided over the Bloody Assizes, nor those of the year the Bill of Rights was adopted, supply the measure.⁸ The mechanism is easy to see once the alternative is spelled out. A Clause frozen at 1791 would forbid only sanctions that civilized society had already repudiated, and those are the sanctions a legislature is least likely to enact, so the guarantee would protect against almost nothing that was actually at risk. Justice O'Connor, dissenting in Roper v. Simmons, agreed on this point even though she disagreed with the result: she wrote that the command would be little more than a dead letter if it barred only sanctions, like the execution of children under seven, that society had already repudiated in 1791.⁹

Making the standard evolve raises the question of whose standards the Court is applying, and the answer is built to keep the Justices' personal preferences out of it. The inquiry looks to objective indicia that reflect the public attitude toward a given sanction, and it does not call for a subjective judgment.¹⁰ First among those indicia are the decisions of state legislatures, because legislative choices are the strongest evidence of where the community stands, and the sentencing decisions of juries serve as a further reliable index of contemporary values.¹¹ The reason for anchoring the inquiry this way is functional: enacted statutes and actual verdicts are facts that anyone can count and check, so a decision resting on them can be tested against the record, whereas a decision resting on one Justice's private sense of decency cannot. A later part of this reading takes up how the Court weighs that evidence. For now it is enough to see that the standards being measured are the ones the community has expressed through its own institutions.

Courts Are Not Legislators

The Eighth Amendment restrains the exercise of legislative power, which means judges have a genuine job to do, because some punishments are barred whether or not a legislature has approved them.¹² The obligation to keep punishments within constitutional bounds does not, however, permit judges to act as they might if they were legislators, so the Clause is applied with an awareness of the limited role courts play.¹³ That limit is the reason the inquiry begins with objective indicia. A Justice who struck down a sentence only because it seemed harsh would be making the policy choice that the Constitution leaves to elected bodies, and the requirement of outside evidence forces the Court to show that the community itself has moved before it declares a practice indecent. A challenge to a punishment is therefore argued with enactments and sentencing data, and an argument that a sentence is merely unwise has nothing in the Clause to rest on.

Public Acceptance Is Not Conclusive

Objective evidence of public attitudes carries great weight, but it does not end the inquiry, because the Court also brings its own judgment to bear on whether the punishment is acceptable.¹⁴ The basis for that second step is that the Clause rests on human dignity: a penalty must accord with the dignity of man, which means at least that it not be excessive.¹⁵ A rule that treated majority support as conclusive would protect an offender only as far as the majority chose to, and that would defeat the point of a constitutional limit, since the people the Clause most often protects are those convicted of heinous crimes. By protecting even those offenders, the Amendment reaffirms the government's duty to respect the dignity of all persons.¹⁶ Public opinion therefore operates as strong evidence of decency that the Court weighs alongside its own judgment.

The Rule at Work

The reversal on juvenile executions shows the rule moving in one direction. In Stanford v. Kentucky in 1989, the Court counted state practice, found that 22 of the 37 death penalty States permitted the execution of 16-year-olds and that 25 permitted it for 17-year-olds, and concluded that no national consensus existed against it.¹⁷ Christopher Simmons was 17 when he committed first-degree murder, and after Missouri sentenced him to death, its Supreme Court set the sentence aside.¹⁸ In Roper the Court affirmed, held that the Eighth and Fourteenth Amendments forbid the death penalty for offenders who were under 18 when they committed their crimes, and overruled Stanford, relying on the growth in the number of States prohibiting juvenile executions since that decision and on its own independent judgment that the penalty is disproportionate for juveniles.¹⁹ The standard stayed constant across the two decisions, while the evidence it measured and the Court's judgment about that evidence changed, which is how the same Court could uphold the execution of 16- and 17-year-olds in one era and forbid it in another.

The same method can also leave a punishment in place. Gregg asked whether death is, under all circumstances, cruel and unusual punishment for murder, and the Court answered no, pointing to the long history of acceptance of the penalty, the reenactment of death penalty statutes by at least 35 States in the four years after Furman v. Georgia, and jury sentencing decisions that were compatible with those legislative judgments.²⁰ Justices Brennan and Marshall dissented in Gregg, but theirs is a dissenting view, and the Court's baseline is that capital punishment for murder is not invariably unconstitutional.²¹ What separates Gregg from Roper is the evidence each Court measured, since both applied the same test, and what the Court did not do in either case is treat the practice of an earlier century as controlling.

On an exam stem noting that 16- and 17-year-olds were executed in earlier centuries, the argument that this history settles the constitutional question fails, because practice in 1791 does not fix the Clause's meaning.²² This forward-looking method also differs from the one used to recognize unwritten fundamental rights under the Due Process Clause, which asks whether the asserted right is deeply rooted in the Nation's history and tradition, so a history-and-tradition argument that works there does not carry over to the Eighth Amendment.²³ Once the Court has asked what current standards say, the remaining question is what makes a punishment excessive, and the next section turns to the two tests that answer it.