Evolving standards as a judicial mandate: necessary or superfluous?

• Author: Klimko, Katheryn

1. DEMOCRATIC EVOLUTION OF "STANDARDS OF DECENCY" IN CRIMINAL PUNISHMENT

   Judicial regulation of criminal punishment is fairly uncontroversial, although few have seriously considered how an alternative system, one in which the state legislatures and enacted statutes predominantly controlled the law of criminal punishment, would differ. (1) Upon comparison to the law of corporal punishment, an area controlled by the legislature, it appears that the public naturally uses a form of progressive civility without being forced to do so as judges compel in Eighth Amendment law. Some criminal punishments clearly fall within Eighth Amendment prohibitions, violating the Cruel and Unusual Punishments Clause; (2) certainly, courts should address and forbid such punishments. Whether other, less extreme punishments violate the clause, however, is more controversial. (3) The Supreme Court addressed many such punishments through its evolving standards of decency test. (4)

   Much of the change in what the law forbids as "cruel and unusual," however, comes not through the Court and its evolving standards of decency test but instead through legislative changes that are often driven by evolving public opinion. (5) The changes in criminal punishment that have resulted from court opinions were based on several factors, notably including public opinion. (6) The Court's determination of public opinion, however, is complex: it examines statutory law, applications of statutes in jury sentences, general public views, and recent state trends. (7) In addition to considering public opinion, the Court considers the opinions of its members, the views of expert organizations (professional and religious), and, occasionally, international norms. (8) Judicial emphasis on sources other than public opinion drives the "evol[ution of] standards of decency" at a faster rate than would simple reliance on general public opinion, frequently outpacing societal views on which punishments should be prohibited. (9)

   An examination of state laws indicates that states are increasingly banning corporal punishment, thereby rendering inconsequential judicial standards of decency. Because the Eighth Amendment does not forbid noncriminal corporal punishment of children by parents and teachers, (10) and because state courts generally defer to the legislature in determining the legality of such punishment, (11) development of this area of law is primarily statutory (12) and therefore driven in great part by changes in public opinion. Hence, allowing the legislature to determine the legality of punishment does not hamper the evolution of standards of decency. Instead, legislative determinations provide a more natural change in law, occurring at a rate that more closely corresponds to the change in public opinion. In light of the natural change in public opinion about the legality of noncriminal corporal punishment, judicial interference in borderline-objectionable punishments has proven less necessary than proponents of the judicial regulation approach predicted.

   Even in the absence of judicial mandates, the legality of criminal punishments would not stagnate, forbidding only those punishments proscribed in 1791. Public opinion gradually has moved in favor of more humane forms of criminal punishment. Much as it has effected change in the realm of noncriminal corporal punishment, the democratic process likely would yield changes in the law of criminal punishments similar to those brought by the courts' doctrine of evolving standards of decency, but at a pace more consistent with the actual evolution of public standards of decency. (13)

2. CRIMINAL PUNISHMENT AND THE EIGHTH AMENDMENT

   Supreme Court evaluations of the legality of criminal punishment focus on the Eighth Amendment. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (14) Certain forms of criminal punishment undoubtedly fall within the Eighth Amendment's prohibition. (15) The status of other punishments, particularly of those that were considered humane at, or after, the Amendment's ratification, but that now are frowned upon, is less clear. Some commentators assert that a change in societal views should render a given punishment cruel and unusual, (16) while others believe that, although other, more humane forms of punishment may--and likely should--be used, such controversial punishment does not violate the Eighth Amendment. (17) Currently, the Supreme Court examines all criminal punishments under its evolving standards of decency framework, creating what may be considered premature evolution of punishment illegality in the United States.

   The history of Eighth Amendment law, especially regarding the death penalty, provides important background regarding the Court's current jurisprudence and the factors it considers in determining the constitutionality of a form of criminal punishment. In Wilkerson v. Utah, (18) the Supreme Court held that certain punishments are cruel and unusual regardless of the crime committed. (19) However, the Court held that death by shooting was permissible because it was a common historical method of execution in the territory at the time. (20) In Weems v. United States, (21) the Court rejected the proposition that the Eighth Amendment reaches only inhuman, barbarous, or torturous punishments; (22) it stated in its 1910 opinion, "time works changes, brings into existence new conditions and purposes." (23) The Court held that the Cruel and Unusual Punishments Clause "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." (24) Even in the early twentieth century, the Court already deemed it necessary to consider modern standards in determining whether a punishment would be considered cruel and unusual, rather than relying on what punishments were considered to violate the Eighth Amendment in 1791.

   Weems shows that the notion of evolving standards existed in Eighth Amendment law even before the Court explicitly adopted the phrase. The phrase itself was not coined until 1958, when Chief Justice Earl Warren wrote in Trop v. Dulles (25) that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (26) This line is the basis for the Court's evolving standards of decency analysis, which has become its standard way to examine punishments.

   Chief Justice Warren's evolving standards of decency analysis quickly gained strong support on the Court. In Furman v. Georgia, (27) Justice Brennan's concurring opinion discussed the manner in which the Court once interpreted the Eighth Amendment as prohibiting merely those punishments that were considered cruel and unusual in 1791 when the Amendment was ratified. (28) Justice Brennan then stated that the Weems Court "decisively repudiated the 'historical' interpretation of the Clause." (29) Justice Marshall's concurrence proposed that any punishment abhorred by the population must be held unconstitutional. (30) But not all members of the Court agreed with Justices Brennan and Marshall. In dissent, Justice Blackmun, though he did not repudiate the Court's determination that what punishments are cruel and unusual may change over time, disagreed with how the Court analyzed the situation: He stated that insufficient time had passed and not enough evidence existed to justify a change in what the Eighth Amendment permitted. (31)

   Although the Court in Furman overturned the defendant's death sentence, (32) it did not hold that the death penalty was per se unconstitutional. Following Furman, thirty-seven states reenacted statutes to ensure that their death penalty procedures complied with the Court's recent decision. (33) These states' actions reveal that, at the time, public opinion remained strongly in favor of the death penalty. After examining Georgia's rewritten death penalty laws, the Court determined that they passed scrutiny in Gregg v. Georgia (34) because "a large proportion of American society continues to regard [capital punishment] as an appropriate and necessary criminal sanction." (35) The Court did hold that a constitutionally permissible penalty cannot be excessive: it must not involve unnecessary infliction of pain nor be grossly out of proportion to the crime's severity. (36)

   The methods of execution used in the United States constitute an area of law that, although regulated by courts, has experienced significant development because of changes in public opinion. Five methods of execution are generally used in at least one state. (37) Lethal injection has become the most popular form of execution in the country, permitted in thirty-six states. (38) Although no state has any other primary method of execution, nine states also permit electrocution, four permit usage of the gas chamber, three states permit hanging, and three permit a firing squad. (39) Until the 1890s, hanging was the primary means of execution in the United States. (40) Other permissible methods in the nation's early years included beheading, breaking at the wheel, drowning, and burning. (41) New York introduced the electric chair in 1888, ostensibly as a more humane alternative to hanging, (42) although the state likely had other motivations for its new method as well, including minimizing the unruliness and sympathy for the criminal offender that sometimes occurred during hangings. (43) The introduction of the electric chair thus began a transformation from public executions, predominantly hangings, to more private executions with far fewer witnesses, signifying a change in purpose from warning the community to exacting retribution against a particular offender. (44) The introduction also marked a transformation toward a view of execution as an operation requiring specialized knowledge and preparation. (45)

   As the years passed, states began to...