A recent federal sentencing opinion has revived debate over the Eighth Amendment’s “evolving standards of decency” test and whether shifting public sentiment could expand, rather than contract, the reach of the death penalty.
Over the summer, U.S. District Judge Joshua Divine of the Eastern District of Missouri sentenced a defendant to 20 years in prison, the statutory maximum, after a guilty plea to receiving child sexual abuse material. Prosecutors alleged the defendant engaged in sexual acts with a 13-year-old girl and kept explicit photos of her on his phone.
Alongside the sentence, Judge Divine issued an opinion asserting that Supreme Court precedent does not bar capital punishment for nonhomicide sexual offenses against children. Setting aside the propriety of offering what amounts to advisory guidance on potential death penalty paths, the opinion signals a broader challenge to how constitutional protections track contemporary norms.
Evolving standards of decency and the Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishments. In 1958, the Supreme Court held in Trop v. Dulles that the clause draws meaning from the “evolving standards of decency” of a maturing society. The court applied that doctrine in 2008 in Kennedy v. Louisiana, deciding that the death penalty is unconstitutional for the rape of a child when the crime did not, and was not intended to, result in the child’s death.
In Kennedy, the justices emphasized that Eighth Amendment protections are shaped by contemporary norms, not by those of 1791. Citing a national consensus, the court noted that no one had been executed for the rape of an adult or child since 1964 and that no execution for any other nonhomicide offense had occurred since 1963.
Embedded in that framework was an assumption that societal values would continue to mature toward restraint in capital punishment. The question now is whether that assumption still holds, and if it does not, what that means for Eighth Amendment jurisprudence.
Shifting policies and a more punitive mood
Judge Divine pointed to changes since Kennedy. In the past three years, at least six states have enacted laws authorizing capital punishment for child rape, a figure approaching one quarter of the states that still permit the death penalty. That tally does not include jurisdictions with similar statutes that have not been enforced since Kennedy.
Citing what he described as significant increases in crimes against children and changes in legal and technological landscapes, he concluded that policymakers may now deem the most severe penalty appropriate for those who harm children. The opinion reflects a larger trend toward harsher punishments that implicate the Eighth Amendment.
The United States recorded more executions last year than in any year in nearly two decades. Some states and the federal government have revisited firing squads and are testing nitrogen gas executions.
Political leaders have urged capital punishment for drug dealers and encouraged states to consider new legislation. Beyond capital cases, some states are debating castration for people convicted of sex crimes.
The federal government has sought to place incarcerated transgender women in men’s facilities and to sharply limit their health care, raising concerns similar to those discussed in What happens when prisons end conjugal visits?. There have also been proposals to reopen Alcatraz and reports of immigrants being sent to severe prison conditions abroad.
Conservative critiques meet an unexpected turn
For years, conservative justices criticized the evolving standards of decency test as unmoored from the original meaning of the Eighth Amendment and too dependent on judicial sensibilities. If courts now accept that contemporary norms have grown more punitive, the same doctrine could be used to expand harsh punishments without expressly overruling precedents like Kennedy.
When the Warren Court embraced the evolving standards framework, it envisioned a society progressing toward leniency. For advocates who relied on that premise, the challenge is less the doctrine’s flexibility than its optimistic equation of evolution with restraint.
A constitutional rule grounded in society’s capacity to become more decent must also contend with the possibility that it may become less so. Ongoing developments in death penalty policy can be followed through resources from the Death Penalty Information Center and other legal monitoring groups.
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