State Legislatures and Solving the Eighth Amendment Ratchet Puzzle
50 Pages Posted: 21 Aug 2018
Date Written: February 2017
The United States Supreme Court’s evolving standards of decency jurisprudence has come to be understood as having forged an irreversible one-way ratchet moving only toward greater leniency. The seemingly irreversible ratchet emerges both from practical challenges for state legislatures in pursuing stricter sanctions under the evolving standards of decency framework of analysis and an underlying assumption that moral evolution in criminal justice only moves towards lesser not greater sanctions. This Article offers a challenge to the latter assumption, the view that moral evolution can only be towards lesser not greater sanctions being imposed. This Article also attempts to provide a solution to the practical problem of the Eight Amendment ratchet puzzle, rendering reversible the seemingly irreversible ratchet. In doing so, the Article sets forth two critical mechanisms — contingent legislation and the active use of resolutions — which if utilized by state legislatures will enable them to more effectively engage in a constitutional dialogue with the United States Supreme Court in defining societal evolving standards of decency.
Keywords: Death Penalty, Capital Punishment, Evolving Standards of Decency, Eighth Amendment, Ratchet Puzzle, Conditional Legislation
JEL Classification: K14
Suggested Citation: Suggested Citation