Following the Yellow Brick Road of Evolving Standards of Decency: The Ironic Consequences of 'Death-is-Different' Jurisprudence
19 Pages Posted: 17 Jul 2008 Last revised: 10 Aug 2009
Date Written: November 1, 2007
In adopting the concept of "evolving standards of decency," the Supreme Court has eschewed traditional methods of constitutional interpretation in favor of a methodology that, at best, eviscerates any independent normative principle inherent in the Eighth Amendment, and, at worst, reduces the Court's capital punishment jurisprudence to an expression of "the feelings and intuition of a majority of the Justices . . . . 'the perceptions of decency, or of penology, or of mercy, entertained . . . by a majority of the small and unrepresentative segment of our society that sits on th[e] Court.'"
This article first explains how the adoption of a purposive approach to the Eighth Amendment, consistent with traditional methods of constitutional interpretation, may have resulted in the abolition of the death penalty in the aftermath of Furman v. Georgia, and nonetheless, would presently serve as a legitimate method for applying the Eighth Amendment to capital cases. Then, this article exposes the inherent flaws in the evolving standards of decency approach, the tool by which the Court has "assumed power" and "invented" standards unique to death penalty jurisprudence. Finally, this article argues that following the "wizards" on the Court down the "yellow brick road" of the evolving standards of decency has ironic jurisprudential and sociological outcomes, including crippling the ability of the Eighth Amendment to serve as a non-majoritarian constitutional basis for the abolition of capital punishment.
Keywords: Death Penalty, Supreme Court, Atkins, Roper, evolving standards
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