In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor death, both through the selective evaluation of legislative enactments and the creation of procedural rules that slant juror decisionmaking toward death sentences.
This Article concludes that to counter the manipulability of the "objective" prongs of the evolving standards test and the resultant self-fulfilling nature of the entire jurisprudential construct, the Court should consider all state capital punishment legislation, and should not confine its consideration only to American conceptions of decency. Continued reliance on the Court's own assessment of proportionality and the furtherance of penological goals as additional constitutional benchmarks is also necessary to prevent the self-fulfilling nature of the evolving standards construct from eliminating any real constraint on the penalty.
A Pro-Death, Self-Fulfilling Constitutional Contruct: The Supreme Court's Evolving Standard of Decency for the Death Penalty,
23 Hastings Const. L.Q. 455
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol23/iss2/3