AuthorBerry, William W., III


In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices.

The Court's evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court's applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments.

Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level--to limit punishments in certain circumstances--and on a macro-level--to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences.

In short, the Article demonstrates that society's standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.

INTRODUCTION I. EIGHTH AMENDMENT JUDICIAL REVIEW A. The Spectrum of Judicial Review B. Evolving Standards: The Eighth Amendment Model II. EIGHTH AMENDMENTMAJORITARIANISM A. Coker, Enmund, & Tison: Early Applications B. Atkins, Roper, & Kennedy: The Death Penalty C. Graham & Miller: JLWOP D. Hall v. Florida and Moore v. Texas: The Most Recent Applications E. Micro vs. Macro Applications III. EVOLVED STANDARDS (MICRO LEVEL) A. JLWOP Sentences 1. Felony Murders 2. Intellectually Disabled Offenders B. Death Sentences 1. Mental Illness 2. Methods of Execution C. Other Categories of Differentness 1. Other Possible Categories of "Different" Punishments a. Mandatory LWOP b. Non-Homicide LWOP 2. Other Possible Categories of "Different " Offenders IV. Evolved Standards (Macro Level) A. JLWOP Abolition B. Death Penalty Abolition V. Why the Justices Should Evolve A. Jurisprudential Consistency B. Eighth Amendment Normative Values C. Evolving Justices? CONCLUSION INTRODUCTION

If we do not step forward, then we step back. If we do not protect a right, then we deny it.

--Paul Martin

In 1972, the United States Supreme Court held that the death penalty, as applied, constituted a "cruel and unusual punishment" that violated the Eighth Amendment to the United States Constitution. (1) The public backlash was immediate, and the response from state legislatures was swift. (2) Within a year, thirty-five states had passed new capital statutes, and in 1976, the Court held that several state capital statutes were constitutional. (3) Indeed, the Supreme Court has not held that the Eighth Amendment completely bars any punishment since Furman. (4)

The core criticism of Furman, and a concern of several of the dissenting justices, centered around the legitimacy of the Court's decision to strike down a state statute, as doing so arguably meant substituting the judgment of the Court for the will of the people. (5) The majority believed, by contrast, that the state capital schemes violated the individual rights of criminal offenders (and the Constitution) by imposing the death penalty in an arbitrary and random manner. (6)

The counter-majoritarian difficulty--the legitimacy of five justices overruling state statutes--rests at the heart of much of the academic debate in constitutional law during the late twentieth century. (7) While this tension between respecting majority will and protecting the individual constitutional rights of political minorities has not stopped the Court from striking down state and federal statutes in other contexts, (8) the Court has demonstrated a reluctance to limit state punishment practices under the Eighth Amendment. (9) Indeed, with respect to the imposition of substantive punishments, the Eighth Amendment largely remained a dead letter for over two decades in the 1980s and 1990s. (10)

In the past decade, however, the Court has taken baby steps and started to impose some categorical limitations on state punishment practices under the Eighth Amendment. For instance, the Court has proscribed death sentences for intellectually disabled offenders, (11) juvenile offenders, (12) and child rape. (13) More recently, the Court has prohibited juvenile life-without-parole sentences in non-homicide cases (14) and when imposed as a mandatory sentence. (15)

During this era of Supreme Court passivity, a proliferation of cruel and unusual punishments has emerged in the United States. The United States remains one of the few Western nations that still use capital punishment, (16) and its current usage is rife with error, (17) racial disparity, (18) arbitrary imposition, (19) and innocent individuals sentenced to death. (20) Similarly, American use of life-without-parole (LWOP) sentences dwarfs that of the rest of the world, with almost 50,000 offenders serving LWOP sentences. (21) Further, the United States is the only country in the world that allows the imposition of LWOP sentences on juvenile offenders. (22)

These practices are part of a larger mass incarceration epidemic in America, (23) with the United States responsible for a quarter of the world's prison population despite only having five percent of the world's total population. (24) Indeed, over the past decade, the United States has housed the largest prison population in the history of the world. (25)

This Article argues that the concerns of the counter-majoritarian difficulty with respect to deferring to the will of the people should have no bearing on the Court's application of the Eighth Amendment to state punishment practices, at least under the Court's current doctrine. In its application of the Eighth Amendment, the Supreme Court uses the evolving standards of decency doctrine to demarcate the line between constitutional punishments and cruel and unusual punishments. (26) What constitutes a cruel and unusual punishment is not static--the Supreme Court has made clear that the "evolving standards of decency" change over time, consistent with the maturing of society. (27)

What has happened is that society's standards have evolved, but the Court's cases have not. The views of the justices, perhaps, are still evolving to catch up with the shift in societal standards. A number of cruel and unusual punishments persist, but the Court seems unwilling to restrict these legislative overreaches.

The core of the Court's evolving standards doctrine mandates assessing the majoritarian practices of states. It does not substitute the Court's judgment for that of a particular state; it strikes down state punishment practices that are outliers as compared to the evolved standard--respecting the democratic norm of society. Further, the evolving-standards-of-decency doctrine ensures the protection of some individual rights by taking the step to strike down excessive state punishment practices. Finally, the Court's approach promotes judicial legitimacy, in theory, by simultaneously respecting democratic norms and individual rights.

After demonstrating why there is no counter-majoritarian tension related to the Court's Eighth Amendment doctrine and thus no reason not to apply the doctrine, the Article offers a holistic approach to the application of the Court's Eighth Amendment doctrine to current punishment practices in the United States. This assessment examines punishments on a micro (limiting a particular application) and a macro (complete prohibition) level. This includes explaining why current societal standards provide a basis both for the abolition of juvenile life-without-parole (JLWOP) sentences and the death penalty.

In Part I, the Article argues that the evolving standards doctrine enables judicial intervention through its simultaneous advancement of a prodemocratic analysis that supports the protection of individual rights. In Part II, the Article establishes that the Court's use of the doctrine has historically been a majoritarian exercise. Given the absence of counter-majoritarian restrictions, Parts III and IV provide a road map for the evolving justices to apply the evolved standards to restrict excessive punishments. Part III explores the application of the doctrine to punishments on a micro level, identifying possible categorical exceptions similar to the Court's recent cases. Part IV of the Article examines the application of the evolving standards to punishments on a macro level, demonstrating the increasingly compelling basis for a determination that the Eighth Amendment prohibits both juvenile LWOP and the death penalty. Finally, Part V concludes the Article by briefly assessing whether and when the justices might evolve and constitutionalize society's evolved standards.


    In the application of constitutional provisions to state legislative enactments, (28) a wide range of approaches is possible. (29) On this spectrum of judicial review, (30) a judge may adopt, at one extreme, a position completely deferential to state legislatures, (31) refusing to apply the constitutional provision to the statute. (32) On the other extreme, a judge could impose his or her political will, essentially acting as a super-legislator, using "constitutional interpretation" to substitute his or her political judgment for the determination of the legislature. (33) As discussed below, the ideal falls somewhere between these two extremes, and seeks to balance some level of deference to state legislative enactments with the protection of individual liberties guaranteed by the Constitution. (34)

    The substitution of judicial will for legislative will and the larger justifications for the proper scope of judicial review have long been the subject of academic...

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