The states are right: arguing for the continued use of state legislatures in forming a national consensus for the evolving standards of decency.

• Author: Lemon-Strauss, Jacob

INTRODUCTION

"Whatever is humane, is wise--whatever is wise, is just--and whatever is wise, just, and humane, will be found to be the true interest of states, whether criminals or foreign enemies are the objects of their legislation." (1)

The Eighth Amendment has spawned a great torrent of scholarship and jurisprudence. The United States Supreme Court, and the scholarship that has followed its decisions, has split the Eighth Amendment's admonition that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (2) into different sets of analysis for civil punitive awards, imprisonment, and capital punishment. (3) Overall, scholars have criticized the Court for its rigidity and formalism in Eighth Amendment jurisprudence regarding the length and form of punishment. (4)

The solution that most scholars propose to the perceived formalism is an increased role in proportionality for death penalty cases. (5) However, looking at Eighth Amendment jurisprudence in its entirety, the more logical solution to cleanse the messy jurisprudence is to adopt the mode of analysis that the Court already uses for death penalty cases and apply it to non-capital punishment cases. Both capital and non-capital punishment cases involving the Cruel and Unusual Punishment Clause involve an objective indicia analysis to determine whether the punishment in question is in line with the "evolving standards of decency that mark the progress of a maturing society." (6)

In the large field of Eighth Amendment scholarship, very little attention has been paid to the use of legislatures to determine the objective indicia of the current standard of decency. (7) Most of that scholastic attention has been negative. (8) This note will argue why the Court is correct in using state legislatures to determine a national consensus and why that mode of analysis should be used for cases involving both deprivation of liberty and life.

In Part I, I will give background on the history of the constitutionality of punishments in this country. In Part II, I posit a new justification for the use of state legislatures to determine a national consensus namely that state criminal law, which is representative of the morals of the community, acts as the best objective indicator of consensus. Also, I will respond to counterarguments to the national consensus standard. In Part III, I will argue that the national consensus standard analysis should be used for both capital punishment cases and imprisonment cases; I will use Graham v. Florida and Sullivan v. Florida as case studies to illustrate the new mode of analysis.

1. A SURVEY OF THE SUPREME COURT'S CRUEL AND UNUSUAL JURISPRUDENCE GENERALLY

   The Supreme Court has created different jurisprudential tracks for capital and non-capital punishment. This section will provide a survey of the current state of decisions and how the Court arrived at its current standards for capital and non-capital punishment.

   1. Capital Punishment Jurisprudence

      The birth of Eighth Amendment analysis was Weems v. United States, (9) in which the Court made three important statements that have resonated throughout the history of the Eighth Amendment. First, the Court gave the progressive Eighth Amendment life by stating, "[t]he clause of the Constitution... may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened.... " (10) Second, the Weems Court declared that a cruel and unusual punishment "exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The State thereby suffers nothing and loses no power." (11) Cruel and unusual punishment, therefore, is an illegitimate use of state power as it is contrary to the objectives of criminal law. The third important element of Weems was the introduction of proportionality to the realm of the Eighth Amendment. (12) The Court reasoned, "it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (13)

      Almost fifty years later, the Court again found that the Eighth Amendment was progressive in Trop v. Dulles. (14) At issue in that case was whether denationalization was a constitutional punishment for military deserters. (15) Agreeing with the Weems Court that the words of the Eighth Amendment are not precise, the Court held that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (16)

      After Furman v. Georgia (17) put a hold on executions in this country, states tried to bring their death penalty statutes in accordance with the Supreme Court's holdings. (18) The Court reviewed five of these statutes in Gregg v. Georgia. (19) The Court adopted a two-prong test to evaluate the constitutionality of a given punishment under the Eighth Amendment. (20) First, the Court looked to the state legislatures to understand whether a national consensus existed in favor of the death penalty. (21) The second test created by the Court was that a "penalty also must accord with 'the dignity of man,' which is the 'basic concept underlying the Eighth Amendment.'" (22) The Court created a two-part analysis for this test: a purely normative question and a proportionality question. (23)

      In the years following Gregg, the Court has refined its objective indicia test to include both jury sentencing (24) and the direction of change in state legislatures. (25) Furthermore, while there was once a presumption of upholding state laws, (26) the current Court has abolished that presumption. (27) If, after the Court's analysis, a sentencing regime is only barely on the side of unconstitutionality, the Court will hold that regime unconstitutional. (28)

      In cases where no consensus emerges from looking to objective indicia, the Court has adopted two tiebreakers. First, the court looks to see if the punishment meets the penological goals of deterrence and retribution; second, the Court looks to see if the punishment is proportional to the crime. (29)

   2. Non-Capital Punishment Cases

      The analytical process for non-capital punishment cases is somewhat similar to that of capital punishment cases. The cases involve a proportionality analysis. The first of the modern strain of these cases was Rummel v. Estelle, (30) which found that a life sentence for a habitual offender was not disproportionate with a $120.75 fraud. (31) Affirming that decision two years later was Hutto v. Davis, (32) which found, based on Rummel, that a forty-year prison sentence was not disproportionate to a crime of possession and distribution of nine ounces of marijuana. (33)

      The next year, in a break in the line of cases, the Court found a sentence to be disproportionate in Solem v. Helm. (34) A repeat offender who committed fraud in the amount of $100 was sent to prison for life without the possibility of parole. (35) Finding that sentence disproportionate, the Court held that "[w]hen sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized." The Court enumerated these factors as proportionality analysis, an intra-jurisdictional analysis, and an inter-jurisdictional analysis. (36)

      In Harmelin v. Michigan, (37) the Court slightly reversed its course and altered the Solem test. (38) Justice Kennedy, writing the controlling plurality opinion, kept the three factors espoused in Solem, but created a presumption of proportionality, requiring that to override a sentence, courts must find a sentence "grossly disproportionate." (39) Only if the analysis passes this high threshold could courts then look to the jurisdictional analysis. (40)

      Justice Kennedy's test has gone unchallenged in the decades since its writing. The Court had the opportunity to review the analysis in Ewing v. California, (41) however Justice O'Connor only facially applied the test, instead applying a rational basis analysis for the sentence in question. (42)

      Currently, the tests for capital punishment and non-capital punishment use similar factors. Capital punishment looks to objective indicia such as state legislatures, jury sentencing, and direction of trends to find a national consensus in favor or against a certain sentencing regime. If this objective indicia analysis is not dispositive, the Court looks to the goals of the justice system and then at the proportionality of the crime and the punishment. For non-capital punishment, the Court starts with a proportionality analysis, and if the sentence is grossly disproportionate with the crime, then the analysis moves onto intra- and interjurisdictional analysis.

2. THE NATIONAL CONSENSUS ANALYSIS IS MORE EFFECTIVE THAN THE GROSS PROPORTIONALITY ANALYSIS

   Many scholars have called for a coalescing of the Court's Eighth Amendment jurisprudence. (43) Most have called for an increase in the role that proportionality plays in the analysis. (44) However, an abstract proportionality query is an inherently normative concept, asking only what the nine justices believe the crime's retributive weight should be. (45)

   It is more logical to start with an objective inquiry into what other states write into their criminal codes. If that is not dispositive, then moving onto the tiebreakers of looking to the penological goals and then, finally, proportionality, gives a solid bulwark between the normative views of the justices and the analysis of the case at bar.

   The question still remains as to how to conduct the analysis for capital punishment cases. The standard for capital punishment cases is to look to the evolving standards of decency that mark the progress of a maturing society. (46) How should the Court measure this evolving standard? There are two major options: normatively decide what the current standards are or use some sort of empirical analysis. (47)

   There are...