“Democratizing the Eighth Amendment”

The title of this post is the title of this new article recently posted to SSRN and authored by Erin Braatz. Here is its abstract:

The concept of evolving standards of decency has long been an important component of the Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  Yet the Court’s recent decisions problematically conceive of standards of decency as something static and capable of precise measurement.  This Article proposes a theoretically robust and empirically grounded account of evolving standards of decency, drawing on scholarship in the fields of history, sociology, and anthropology. This literature reveals that rather than constituting a static state, standards of decency develop through a process dependent upon interpersonal interactions.  While the Supreme Court’s earliest invocations of the concept of evolving standards of decency relied upon arguments similar to those found in this literature, the Court has lost sight of the concept’s dynamic nature.

Applying this account of standards of decency to the history of penal reform in the United States, this Article contends that the extreme privatization and isolation of penal practices beginning in the mid-twentieth century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  It also stymies the process through which standards of decency might evolve.  The development of penal practices outside of the public eye thereby contributes to the Supreme Court’s struggle to apply the concept of evolving standards of decency to imprisonment cases.  In contrast, recent reform movements, such as prison abolitionism, community control, and democratic criminal justice all rely implicitly on some version of a process-oriented notion of standards of decency.  In varying ways, they reflect a belief that building and facilitating robust interpersonal relationships will lead to a radical reimagining of how individuals can and should be treated in response to harms they may have caused.  Rather than rely on the Supreme Court to ensure that punishments in the twenty-first century are not cruel and unusual, this Article concludes that we must democratize the Eighth Amendment by adopting public policy choices that enable public engagement with penal spaces and the development of the interpersonal relationships through which standards of decency can be engaged.