In interpreting "evolving standards of decency
," the Court must look to "objective indicia" (165) of contemporary public opinion or values (166) because "cruelty" is not "merely descriptive, but necessarily embodies a moral judgment" that may change with time.
an inquiry into evolving standards of decency
, but even if it did invite
As discussed below, the core doctrine the Court has used to assess punishment is the evolving standards of decency
. The language of the constitutional provision itself though--"nor cruel and unusual punishments inflicted" (43) --does not provide any clue as to the degree of deference, if any, the Court ought to apply when assessing the constitutionality of particular punishments.
the evolving standards of decency
, the Court never abandoned the
Evolving standards of decency
reflect this assumption, reflecting the raising of the minimum age at which a minor can be executed and the decreasing number of states willing to execute minors.
But as the years passed, the Court also introduced and then gave increasing prominence to the notion that the outer boundaries of the Eighth Amendment are not determined by objective indicia of "evolving standards of decency
" in the society at large, but by the justices' "own judgment"--a metric capable of producing a finding of cruel and unusual punishment even in a case fully in accord with contemporary society's evolved standards.
Development of Doctrine and Evolving Standards of Decency
not static, [t]he Amendment must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society." (143) Thus, because society's ultimate punishment must be responsive to society's evolving ideals, what may have been deemed permissible pain and suffering a century ago, or even a few decades ago, may not pass constitutional muster today.
In examining the evolving standards of decency
, we cannot expect the public's standards to evolve if the public is unaware of what procedures are actually performed upon the condemned.
Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency
that mark the progress of a maturing society." (1) Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance.
Dulles, (4) the court referred to "evolving standards of decency
that mark the progress of a maturing society" as a guide to determine if a punishment in question is cruel and unusual under the Eighth Amendment.
Dissenting, Justice Sandra Day O'Connor agreed that death penalty jurisprudence must depend on evolving standards of decency
and that these would include developments in foreign law.