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  • Print publication year: 2020
  • Online publication date: June 2020

2 - Back to the Future

from Part I - A History of the Eighth Amendment


Over the past half-century, the Supreme Court has generally refused to rely on the original meaning of the Cruel and Unusual Punishments Clause in deciding Eighth Amendment cases. Instead, it has held that Eighth Amendment claims must be evaluated in light of contemporary standards: “the evolving standards of decency that mark the progress of a maturing society.” The result has been an almost unmitigated disaster for criminal offenders. Although the Court has occasionally intervened to limit the (already rarely used) death penalty, it has taken a hands-off approach to the 99.999% of adult offenders subject to a punishment other than death.