The Progression of “Evolving Standards of Decency” in U.S. Supreme Court Decisions

Date01 September 2014
Published date01 September 2014
DOI10.1177/0734016814531779
Subject MatterArticles
Article
The Progression of ‘‘Evolving
Standards of Decency’’ in U.S.
Supreme Court Decisions
Matthew C. Matusiak
1
, Michael S. Vaughn
2
,
and Rolando V. del Carmen
2
Abstract
The non-static interpretation of the Eighth Amendment was first introduced by the U.S. Supreme
Court in Weems v. United States. It was further named ‘‘evolving standards of decency,’’ in Trop v.
Dulles. Although evolving standards of decency began as dicta, the principle is now enshrined
constitutional doctrine. This article traces the history and application of evidence in identifying
evolving standards of decency, from its philosophical origins through its influence on recent U.S.
Supreme Court decisions. The article concludes by tracing the Court’s post hoc rationalization,
which makes use of the doctrine controversial.
Keywords
evolving standards of decency, Eighth Amendment, cruel and unusual punishment
The phrase ‘‘evolving standards of decency that mark the progress of a maturing society’’ origi-
nated as dicta in the plurality opinion of Trop v. Dulles (1958, p. 101), authored by Chief Justice
Earl Warren. The concept of ‘‘evolving standards of decency’’ has primarily been applied to
Eighth Amendment cases alleging violations of the Cruel and Unusual Punishment Clause. Justice
Joseph McKenna in Weems v. United States (1910) was the first to articulate the position that the
Eighth Amendment progresses, according to societal change, drawing its meaning from public
opinion. Early in the history of the United States, the government was rarely forced to defend
Eighth Amendment post-conviction challenges. When it was challenged, the cases were specifi-
cally related to the types of punishments utilized, not conditions of confinement (Hudson v.
McMillan, 1992). Weems, however, was the first case to suggest that public opinion should be uti-
lized to interpret the Eighth Amendment’s Cruel and Unusual Punishment Clause (Weems v.
United States, 1910); even so, Weems primarily focused on the proportionality of punishment
1
Department of Criminal Justice, University of Central Florida, Orlando, FL, USA
2
Department of Criminal Justice and Criminology, Sam Houston State University, Huntsville, TX, USA
Corresponding Author:
Matthew C. Matusiak, Department of Criminal Justice, University of Central Florida, 12805 Pegasus Drive, Orlando, FL
32816, USA.
Email: matthew.matusiak@ucf.edu
Criminal Justice Review
2014, Vol. 39(3) 253-271
ª2014 Georgia State University
Reprints and permission:
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DOI: 10.1177/0734016814531779
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as it applied to the Eighth Amendment. Evolving standards of decency have progressed from dicta
to ratio decidendi through its relatively brief legal history during the 20th and 21st centuries.
The current research traces the progression of evolving standards of decency from the abstract
ideal set forth by Chief Justice Warren in Trop v. Dulles (1958) through the current attitude of
the court, which Chief Justice William Rehnquist (Atkins v. Virginia, 2002), criticized as a ‘‘post
hoc rationalization’’ (p. 322) for the individual judgments of members of the Court. Dissenting in
Furman v. Georgia (1972), Justice Blackmun stated his personal distaste with the death penalty;
however, as an interpreter of the Constitution, this justice opined that the death penalty did not
violate the Cruel and Unusual Punishment Clause (Furman v. Georgia,1972).Furthermore,Jus-
tice Byron White’s Coker v. Georgia plurality opinion in 1977 acknowledged the subjectiveness
for the Court in determining the legitimacy of the death penalty in a certain context, though finding
comfort that objective measures of evolving standards of decency confirmed this judgment.
According to Justice White (Coker v. Georgia, 1977), ‘‘...the Constitution contemplates that
in the end our own judgment will be brought to bear on the question of the acceptability of
the death penalty under the Eighth Amendment’’ (p. 597). Justice White’s statement came only
5 years after most justices acknowledged the difficulty in basing Eighth Amendment judgments
upon the subjective views of individual justices, preferring consideration of objective criteria
(Furman v. Georgia, 1972). As a Constitutional measure, evolving standards of decency might
appear to lack the objectivity that the Court’ plurality strove for in its Gregg v. Georgia (1976)
holding, where it contended that an assessment of contemporary values, necessitated by the appli-
cation of the evolving standards of decency standard, ‘‘does not call for a subjective judgment. It
requires, rather, that we look to objective indicia that reflect the public attitude toward a given
sanction’’ (Gregg v. Georgia, 1976, p. 173).
This article traces the history and application of evidence in identifying evolving standards of
decency, from its philosophical origins through its influence on recent U.S. Supreme Court deci-
sions. The article concludes by tracing the Court’s post hoc rationalization that makes use of the
doctrine controversial. The history, evidence, application, and future of ‘‘evolving standards’
will be discussed subsequently.
Background
According to the Eighth Amendment to the United States Constitution, ‘‘Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted’’ (U.S.
Const. amend. VIII). There has been debate over the seemingly straightforward language of the
Eighth Amendment (Siena, 2009/2010). For the purposes of this discussion, the focus will be
on the Cruel and Unusual Punishment Clause. In the United States, the prohibition of ‘‘cruel and
unusual punishment’’ originated in the Virginia declaration of rights (Dean, 2010) and was later
adoptedbytheFramersoftheBillofRights.Onthe heels of King George’s tyrannical treatment
of the colonists, there was a concern that the new federal government would utilize torturous pun-
ishments (Dean, 2010). Although the literature in this area is less developed, most of the research
on evolving standards of decency follows case law and is legal in nature.
Following the Court’s holding in Weems, the interpretation of the Cruel and Unusual Punishment
Clause was no longer fixed in time, meaning that whether a punishment was cruel and unusual was
not solely based on whether it would have been acceptable at the time the Eighth Amendment was
drafted. According to the Weems Court, a punishment that was grossly disproportionate to the crime
was cruel and unusual (Weems v. United States, 1910); thus, 15 years imprisonment at hard labor,
forced wearing of irons, governmental surveillance for life, and loss of one’s voting rights for
defrauding the government of 612 pesos was deemed cruel and unusual (Paternoster, Brame, &
Bacon, 2008). While the idea was presented in Weems, Chief Justice Warren, in Trop v. Dulles
254 Criminal Justice Review 39(3)

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