William & Mary Bill of Rights Journal
Not So Objective Indicia: Why Public Polling and Ballot Referenda Could Create a More Concrete Standard for Eighth Amendment Objective Indicia Analysis
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a maturing society.” To evaluate how society views the punishment at a given time, the Court looks to “objective indicia” of the nation’s opinion.
This Note will focus on what the phrase “cruel and unusual punishment” means in the context of modern-day punishments. It will argue that the objective indicia used to evaluate the current evolving standards of decency causes too much confusion and leaves this portion of Eighth Amendment analysis up in the air. If the purpose of the objective indicia test was to capture society’s moral standards, then the test is failing to achieve its goal. With recent changes to the Supreme Court, objective indicia have been, and will likely continue to be, interpreted in ways that do not reflect current societal standards. In fact, current standards may encourage penalties, such as the death penalty, for the political reason of ensuring the punishment remains constitutional.
Part I of this Note will discuss the history of the Eighth Amendment and what objective indicia the Court has used in the past. Part II will discuss questions raised by the current analysis of objective indicia. Finally, Part III will argue that to fix the problems with objective indicia, the evolving standards of decency test needs to be changed to allow for a more objective method of evaluation.
This abstract has been adapted from the author's introduction.