Evolving Standards of Decency: On the Abolition of Capital Punishment
In a time marked by a rapidly changing sociopolitical landscape, the concept of “evolving standards of decency” has become increasingly pertinent, serving as a cornerstone for evaluating what is considered to be “cruel and unusual punishment” as noted in the United States Constitution. Among these practices, few are as contentious and deeply ingrained in the American legal system as the issue of capital punishment. By examining the historical context and legal precedence of capital punishment as well as its relevance today, it is asserted that, despite the Supreme Court's ruling in Gregg v. Georgia (1976), which upheld the constitutionality of the death penalty when used carefully and judiciously, abrogating Furman v. Georgia (1972), the evolving standards of decency render the application of capital punishment to be unconstitutional.
In the examination of "evolving standards of decency," it is crucial to consider the legal and philosophical foundations that underpin the changing interpretations of the Eighth Amendment. The legal foundation of this progressive standard comes from Weems v. United States (1910), [1] which interprets the “cruel and unusual punishment” clause of the Eighth Amendment to not only include inhumane and barbaric punishments but excessive ones as well. In the syllabus—the preliminary section of a ruling that outlines the facts of the case—of Weems, the Supreme Court notes, "[t]he Eighth Amendment is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice,” illustrating the uniquely dynamic nature of this clause. [1]
However, it was not until 1958, in Trop v. Dulles (1958), that the “evolving standards of decency” principle was first established. [2] Using Weems as precedence, Chief Justice Earl Warren writes in his plurality opinion, “The Court recognized … that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Although Trop primarily focused on the revocation of citizenship for a crime, Justice Warren made a noteworthy reference to the death penalty in his plurality opinion, writing, “The death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty,” suggesting the potential for the death penalty to violate the Eighth Amendment when it is no longer widely accepted by the public. [2]
The unique position of "cruel and unusual punishment" within the framework of "evolving standards of decency" establishes a uniquely majoritarian standard, viewing the Constitution as a progressive and dynamic document. For originalist and textualist interpretations of the Constitution, even flogging and mutilation would not be considered “cruel and unusual punishment,” as they were often used in the 1790s as punishment. However, even famed conservative Justice Antonin Scalia has mentioned that he would rule these punishments as unconstitutional. [3] The "evolving standards of decency" framework resolves this contradiction by recognizing that the Eighth Amendment must adapt to the changing values of society. Chief Justice Warren Burger, who adheres to the judicial philosophy of strict constructionism, embraces this interpretation of "cruel and unusual punishment" because it acknowledges that the measure of extreme cruelty is not solely descriptive but inherently represents moral judgment. While the standard itself remains constant, Justice Burger writes in Furman v. Georgia, a landmark case which found the existing forms of capital punishment to be unconstitutional, that this assessment evolves following shifts in fundamental societal values and beliefs. [4] Otherwise, a strictly originalist interpretation of the Constitution would render the Eighth Amendment incredibly limited and impractical, merely banning archaic forms of punishment such as crucifixion and medieval forms of torture. [5] This standard also emphasizes the fundamental purpose of the "cruel and unusual punishment" clause: safeguarding the basic dignity of individuals. As highlighted in Weems v. United States (1910), the framework of “evolving standards of decency” acknowledges that legal principles should extend beyond their historical context, ensuring the ongoing relevance of the “cruel and unusual standards” clause.
The history of the relationship between “evolving standards of decency” and capital punishment is long and enduring, marked by significant legal decisions and a gradual incrementalism towards limiting the circumstances in which capital punishment is permissible. [6] Furman v. Georgia (1972) marks the first Supreme Court case that converges the issue of capital punishment with the "evolving standards of decency,” using societal standards as a constitutional constraint. [7] This 5-4 decision, which nullified all existing legal frameworks for capital punishment in the United States, was unique in that every member of the majority authored an individual opinion explaining why capital punishment in these cases was unconstitutional. While Justices Potter Stewart, Byron White, and William Douglas expressed concern for the current implementation of the death penalty over its arbitrary application and racial bias, Justices William Brennan and Thurgood Marshall both wrote about the incompatibility of the death penalty as a concept with the “evolving standards … of a maturing society,” shifting their focus from the procedural aspects to the merits of capital punishment itself. Justice Brennan focused on the degradation of human dignity inherent in capital punishment, which violates the Eighth Amendment clause of “cruel and unusual punishment”. In contrast, Justice Marshall adopted a more comprehensive approach, examining not only its history and justifications but ethical concerns of capital punishment. He argued that capital punishment, as it serves no purpose that life imprisonment could not serve, is excessive and morally unacceptable in contemporary American society. However, Justices Powell, Burger, and Blackmun, in their dissenting opinions, all pointed out that as of 1972, the death penalty was still extensively employed in the United States, grounding their arguments on the prevailing norms of American society. [8] Therefore, although Furman established a practice for imposing moratoriums on the death penalty and introduced legal arguments that utilized the "evolving standards of decency" principle, it did not explicitly establish a precedent solely on that basis.
In the subsequent Gregg v. Georgia (1976) case, which abrogated Furman, Justices Stewart, Powell, and Stevens write in the plurality opinion that “evolving standards of decency” are not focused on the essence of the death penalty itself but rather on the governmental procedures employed in the selection of individuals subjected to capital punishment; the death penalty, if not applied arbitrarily, is constitutional. They also noted, “It is now evident that a large proportion of American society continues to regard [the death penalty] as an appropriate and necessary criminal sanction.” [9] In the dissents, both Justice Brennan and Marshall reiterate their points stated in Furman v. Georgia, with Justice Marshall arguing that if the average American was adequately informed about the unnecessary nature of capital punishment with the advent of the modern form of life imprisonment, they would inherently object to it on principle. [10]
After Gregg v. Georgia, the death penalty has gradually been narrowed in scope, often using national and international consensus as justification for these legal restrictions. Thompson v. Oklahoma (1988), which overturned the death sentence of a minor, again uses the primary rationale of “evolving standards of decency” for its ruling, reviewing the positions of both the states and the international community. [11] Atkins v. Virginia (2002), which prohibited capital punishment for the intellectually disabled, also takes public opinion into account in its ruling. Justice John Stevens, writing for the majority, notes that the number of states prohibiting the execution of the intellectually disabled is not as significant as “the consistency of the direction of change” when evaluating what meets the “evolving standards of decency.” [12] Roper v. Simmons (2005) prohibited capital punishment for children under the age of 18 at the time of the crime. Roper scrutinizes the stances of individual states, following the "national consensus" precedent set by Thompson. Justice Anthony Kennedy, writing for the majority in Roper, noted that only six states have carried out executions since 1989 for offenses committed by juveniles, and since that year, five states have abolished death penalties for crimes committed by juveniles. [13]
Moreover, this examination extends to the international community, highlighting that, with the exception of the United States and Somalia, every single nation has ratified explicit prohibitions on capital punishment for crimes committed by individuals under the age of 18. [14] In Kennedy v. Louisiana, which prohibits capital punishment for a crime in which the victim did not die and their death was not intended, Justice Kennedy also again utilizes this national consensus to note that only six states allowed capital punishment in crimes in which death did not occur. [15] The gradual implementation of restrictions on capital punishment—such as on juveniles and the intellectually disabled—in the last forty years underscores a consistent trend towards a limitation of the implementation of the death penalty as a reflection of evolving standards of decency, drawing upon both national and international consensuses as guiding principles for these legal reforms.
In examining the national consensus on the death penalty today, it becomes evident that the United States is witnessing a shifting landscape marked by a growing number of states abolishing or limiting the use of capital punishment, reflecting evolving public sentiment and a notable trend toward restrictions on its application. While twenty-seven states allow the death penalty, three of these states have a formal moratorium, and five states have an informal hiatus through court orders or an order by the governor, demonstrating a considerable degree of hesitancy in carrying out capital punishment; only eleven states carry out executions with regular consistency. [16];[17] Additionally, states have increasingly begun banning capital punishment in the 21st century; while only one state, Nebraska, has reinstated capital punishment, in the same period, eleven states chose to ban it, revealing a prevailing trend towards abolition. [18] At the federal level, out of the thirty-five years following the reinstatement of the death penalty, thirty-one years saw no executions taking place; today, there is a current moratorium by the federal government on the death penalty. [19] Although not indicative of a unanimous national consensus, these developments collectively underscore a "consistency of the direction of change" in the country's approach to the death penalty.
Furthermore, when considering the evolving opinions surrounding the death penalty on an international scale, it becomes apparent that there is a significant global shift away from capital punishment. Thompson compares the United States specifically to “nations that share our Anglo-American heritage and by the leading members of the Western European community.” [20] As of 2022, every single Western European nation prohibits the death penalty. The only European nations that retain the death penalty are Russia and Belarus; Russia, in particular, has imposed a moratorium on capital punishment since 1999 and has not executed anyone since 1996. Additionally, every single nation in the Anglosphere (Australia, Canada, New Zealand, and the United Kingdom), that shares the English common law heritage, has abolished the death penalty. [21] The international landscape reveals that the United States stands as an outlier among its peer nations as one of the only “developed” countries that maintains the use of capital punishment, demonstrating how the United States stands apart from many of its global counterparts.
The contemporary perspectives on legal penalties justify their existence based on principles of retribution, rehabilitation, and deterrence, as emphasized in the case of Kennedy v. Louisiana. [22] Therefore, the “evolving standards of decency” principle must consider the retribution, rehabilitation, and deterrence aspects of capital punishment. However, when it comes to rehabilitation, it is essential to acknowledge that the death penalty offers no opportunity for such reform, and as Justice Marshall notes in Furman, its very existence inherently undermines any institutional efforts toward rehabilitation. [23] This inevitably leads to a focus on retribution and deterrence as its primary justifications. The focus on deterrence becomes prominent, particularly in light of growing evidence that indicates a lack of conclusive evidence that illustrates that the existence of capital punishment is an effective deterrent. [24] Furthermore, states that have abolished capital punishment consistently exhibit lower homicide rates compared to states that retain it. [25];[26] Although the abolition of capital punishment may not be a direct cause, this correlation provides clear and convincing evidence that capital punishment is not necessary as a societal deterrent. This brings into question whether retribution alone is a sufficient justification for a practice that appears to be increasingly obsolescent. Justice Brennan and Marshall’s concurring opinions in Furman provide a critical perspective that challenges these prevailing justifications for capital punishment, shifting its focus from the individuals subjected to capital punishment to a broader examination of the death penalty itself. [27] Their concurring opinions recognize that capital punishment is not merely an isolated act carried out on individuals, but a societal practice that implicates the collective values upheld by a community. Maintaining this broader perspective is crucial for upholding consistency in the application of capital punishment, as underscored by Justice Blackmun in Callins v. Collins (1994). Despite the reforms introduced in Gregg, Justice Blackmun notes a persistent inconsistency in the execution of the death penalty; he contends that this incongruity renders the constitutional requirements for consistent imposition of the death penalty and the discretion to refrain from such a sentence irreconcilable, concluding that the death penalty should not be administered at all. [28]
The applicability of “evolving standards of decency” in analyzing the death penalty grows more pertinent in today’s sociopolitical landscape. First and foremost, it serves to align legal standards with public opinion, thereby ensuring that the justice system reflects the values of the society it serves. Additionally, the disparities in the application of the death penalty, both along racial and socioeconomic lines, underscore the urgency of this matter. A just and equitable legal system should not perpetuate biases or discrimination, so the principle of “evolving standards of decency” should address and rectify these disparities in applying the death penalty. Finally, the application of the death penalty raises questions about the right to life and the prohibition of cruel, inhuman, or degrading treatment, as enshrined in international human rights conventions. The issue of capital punishment extends beyond legal considerations, further raising ethical concerns regarding the state’s authority to take a person’s life. Consequently, a contemporary reevaluation of capital punishment is not merely a legal exercise but a moral and ethical imperative that underscores the ongoing debate surrounding the death penalty and its place in a changing society.
Edited by Sunny Fang
[1] Weems v. United States, 217 U.S. 349, 350 (1910)
[2] Trop v. Dulles, 356 U.S. 86, 99-101 (1958)
[3] John Stinneford, “Evolving Away from Evolving Standards of Decency”, Federal Sentencing Reporter 23, no. 1 (October 2010): 87, https://doi.org/10.1525/fsr.2010.23.1.87.
[4] Furman v. Georgia, 408 U.S. 238, 382 (1972)
[5] Corinna Lain, “The Power, Problems, and Potential of “Evolving Standards of Decency” in The Eighth Amendment and Its Future in a New Age of Punishment, ed. Meghan Ryan and William Berry III (Cambridge University Press, 2020), 77.
[6] Melanie Kalmanson, “Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty,” William & Mary Bill of Rights Journal 28, no. 3 (March 2020)
[7] Corinna Lain, The Power, Problems, and Potential (Cambridge University Press, 2020), 78.
[8] Furman v. Georgia, 408 U.S. 238 (1972)
[9] Gregg v. Georgia, 428 U.S. 153, 179 (1976)
[10] Gregg v. Georgia, 428 U.S. 153, 232 (1976)
[11] Thompson v. Oklahoma, 487 U.S. 815, 817, 830-31 (1988)
[12] Atkins v. Virginia, 536 U.S. 304, 315 (2002)
[13] Roper v. Simmons, 543 U.S. 551, 564-65 (2005)
[14] Roper v. Simmons, 543 U.S. 551, 576 (2005)
[15] Kennedy v. Louisiana, 554 U.S. 407, 431 (2008)
[16] “Executions by State and Year,” Death Penalty Overview, Death Penalty Information Center, last modified 2023, https://deathpenaltyinfo.org/executions/executions-overview/executions-by-state-and-year.
[17] “States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums,” ProCon, Encyclopaedia Britannica, last modified April 24, 2023, https://deathpenalty.procon.org/states-with-the-death-penalty-and-states-with-death-penalty-bans/.
[18] “States and Capital Punishment,” National Conference of State Legislatures, last modified August 11, 2021, https://www.ncsl.org/civil-and-criminal-justice/states-and-capital-punishment.
[19] “Executions Under the Federal Death Penalty,” Federal Death Penalty, Death Penalty Information Center, last modified 2021, https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/executions-under-the-federal-death-penalty.
[20] Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988)
[21] “Abolitionist and retentionist countries as of December 2022,” Amnesty International, last modified Dec 2022, https://www.amnesty.org/en/documents/act50/6591/2023/en/.
[22] Kennedy v. Louisiana, 554 U.S. 407, 420 (2008)
[23] Furman v. Georgia, 408 U.S. 238, 369 (1972)
[24] National Research Council, Deterrence and the Death Penalty, ed. Daniel Nagin and John Pepper, (Washington DC: National Academies Press, 2012)
[25] Raymond Bonner and Ford Fessenden, “Homicide Rates Are Unaffected by the Death Penalty, Study Finds,” New York Times, September 22, 2000, https://www.nytimes.com/2000/09/22/us/absence-executions-special-report-states-with-no-death-penalty-share-lower.html.
[26] “Murder Rate of Death Penalty States Compared to Non-Death Penalty States,” Murder Rates, Death Penalty Information Center, last modified 2020, https://deathpenaltyinfo.org/facts-and-research/murder-rates/murder-rate-of-death-penalty-states-compared-to-non-death-penalty-states.
[27] Furman v. Georgia, 408 U.S. 238 (1972)
[28] Callins v. Collins, 510 U.S. 1141 (1994)