Friday, April 5, 2013
Zachary Baron Shemtob has posted From Weems to Graham: The Curious Evolution of Evolving Standards of Decency (Criminal Justice Bulletin, 49, 3 (2013)) on SSRN. Here is the abstract:
Since the 1958 case of Trop v. Dulles, the Supreme Court has held that grossly disproportionate punishments are cruel and unusual if they violate “the evolving standards of decency of a maturing society.” Traditionally, this was interpreted as prohibiting capital sentences for certain types of crimes and classes of offenders. In Graham v. Florida, the Court applied evolving standards to incarceration, banning the sentencing of juveniles who committed non-homicide crimes to life without parole.
This Article breaks the Court’s understanding of evolving standards of decency into distinct periods. In each period the justices encountered a host of novel problems that they attempted, and often failed, to resolve. I discuss some additional complications in the wake of Graham, and conclude that this case’s inconsistent holding demands a more objective measure for what constitutes evolving standards of decency.