Evolved Standards, Evolving Justices?

50 Pages Posted: 24 Feb 2017 Last revised: 9 Aug 2018

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: February 16, 2018


In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices. The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments. Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level—to limit punishments in certain circumstances—and on a macro-level—to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences. In short, the Article demonstrates that society’s standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.

Keywords: Cruel and Unusual, Eighth Amendment, Evolving Standards, Countermajoritarian Difficulty, JLWOP, Death Penalty

Suggested Citation

Berry, William W., Evolved Standards, Evolving Justices? (February 16, 2018). 96 Washington University Law Review 105 (2018)., Available at SSRN: https://ssrn.com/abstract=2922796 or http://dx.doi.org/10.2139/ssrn.2922796

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics