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December 11, 2022

"No Sense of Decency"

The title of this post is the title of this new paper authored by Kathryn Miller now available via SSRN. Here is its abstract:

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.”  In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left.  Criticism of the doctrine has been fierce, but largely academic until recent years.  Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day.  For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism.

Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test.  Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them.  Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment.

This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements.  It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency tests, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment.  The Article then proposes a new test — grounded in the structural harms of the modern criminal punishment system — that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity.  This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter.

December 11, 2022 at 09:09 PM | Permalink


It is indeed very difficult not to find extreme flaws in the concept of originalism or that we as a society are evolving into a greater standards of decency.

If one deems themself an originalist, how does that person harmonize the cruel & unusual punishment aspect of the Eighth Amendment with the reality that the Framers (at least some of them, if not most) were slaveholders? What could be more cruel and unusual than to literally 'own' the body and labor of another person and subjecting that person to labor (without compensation) and nonconsensual sex?

Furthermore, how does a society consider itself evolving towards greater standards of decency when so many young men and women of color have spent decades in prison under the so-called 'war-on-drugs' while the Sackler Family was allowed to admit to partial culpability for the opioid epidemic and was only penalized with a fine?

Posted by: Eric A. Hicks | Dec 12, 2022 7:47:26 AM

Bravo, Eric Hicks! I agree completely with what you have written. "Evolving standards of decency" have evolved very slowly. It will really be something when the death penalty is found to be unConstitutional and eliminated from American criminal laws.

Posted by: Jim Gormley | Dec 12, 2022 12:46:01 PM

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