Assessing the objective measures of the evolving standards of decency: the history of measuring a moving target with an elastic ruler

Abstract

In the 50 years since the Supreme Court ruled that the Eight Amendment’s guarantee against cruel and unusual punishments must be interpreted using the evolving standards of decency of a maturing society, scholars have frequently argued over how those standards should be measured. Justices have assessed the contemporary standards of decency using both subjective interpretations and a variety of objective measures in death penalty cases. Different objective indicia of these standards often support conflicting conclusions. Some decisions even may have been more the result of the measure chosen than the actual morality of society. The measures used to evaluate the use of the death penalty may be largely flawed. This creates a need for the evaluation and appraisal of each objective measure in order to determine which methodology best yields results that represent the views of society. The following analysis examines the strengths and weaknesses of the objective measures used in capital cases so that future decisions may utilise the most accurate and reliable measures.