Strict Scrutiny Under the Eighth Amendment

Abstract

The basic principle of the Supreme Court’s interpretation of the Eighth Amendment is that the phrase “cruel and unusual” must draw its meaning from “the evolving standards of decency that mark the progress of a maturing society.” To implement this principle, the Court has considered whether “objective indicia” of prevailing com-munity norms — such as the number of states that impose the punishment — support the finding of a national consensus against the punishment being challenged.

The Court’s reliance on objective indicia has been subjected to sus-tained scholarly criticism. While largely persuasive, the conventional critique has several shortcomings, the most significant of which is the failure of other scholars to provide a viable alternative to the Court’s objective indicia approach. In this Article, I propose a novel alternative methodology based on a version of strict scrutiny for suspect classes of punishments, offenses, and offenders. This proposal is timely because the Supreme Court recently indicated for the first time, in Miller v. Alabama, that it is poised to abandon the objective indicia approach. Miller does not provide a comprehensive replacement approach, however, leaving a methodological vacuum to be filled. The strict scrutiny approach provides a framework to flesh out the Court’s new attitude at a time when there is a rare opportunity to influence the Court’s constitutional decisionmaking.