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September 1, 2018

"State Legislatures and Solving the Eighth Amendment Ratchet Puzzle"

The title of this post is the title of this paper recently posts to SSRN and authored by Jeffrey Omar Usman. Here is its abstract:

The United States Supreme Court’s evolving standards of decency jurisprudence has come to be understood as having forged an irreversible one-way ratchet moving only toward greater leniency.  The seemingly irreversible ratchet emerges both from practical challenges for state legislatures in pursuing stricter sanctions under the evolving standards of decency framework of analysis and an underlying assumption that moral evolution in criminal justice only moves towards lesser not greater sanctions.

This Article offers a challenge to the latter assumption, the view that moral evolution can only be towards lesser not greater sanctions being imposed. This Article also attempts to provide a solution to the practical problem of the Eight Amendment ratchet puzzle, rendering reversible the seemingly irreversible ratchet.  In doing so, the Article sets forth two critical mechanisms — contingent legislation and the active use of resolutions — which if utilized by state legislatures will enable them to more effectively engage in a constitutional dialogue with the United States Supreme Court in defining societal evolving standards of decency.

September 1, 2018 at 11:56 AM | Permalink


I see the whole evolving standards of decency as a gimick for the Court to be able to dictate the desires of a bare majority of its members. All that would really be needed is for a new Court majority to say it was a mistake.

And then of course the following majorities will say "was not, "was too" ad infinitum.

Posted by: Soronel Haetir | Sep 1, 2018 11:45:16 PM

Soronel, it appears from your statement that you desire to remove from the judiciary the power to decide when a sentence offends the Eighth Amendment. Which means you dispute that the US is a constitutional democracy, not a pure democracy.


Posted by: bruce cunningham | Sep 2, 2018 10:10:32 PM


I believe that the 8th amendment, properly understood, bans certain particular procedures, drawing and quartering, evisceration, breaking on the wheel and the like. I do not believe that it has any input at all when considering what punishment is lawful for a given offense. That is, the 8th contemplates what but not at all why.

And I believe that list is stuck as it stood at the time of ratification (perhaps updated to the ratification of the 14th amendment) but no later. Just as I believe the Court is very wrong on its 1st amendment jurisprudence (Sullivan as a prime example) even though I very much like the outcomes the Court comes to as a policy matter.

Posted by: Soronel Haetir | Sep 3, 2018 12:26:11 AM

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