“Eighth Amendment Stare Decisis”

The title of this post is the title of this new paper authored by William W. Berry III and available via SSRN. Here is its abstract:

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual.  In 2023, Florida passed a statute that directly contravenes this constitutional rule.  Under the Florida statute, committing sexual battery against a child is a capital offense.

In a vacuum, one might expect the Court to strike down Florida’s statute as clearly unconstitutional in violation of the Eighth Amendment based on the principle of stare decisis. Traditionally, the concept of stare decisis has referred to the obligation of the Court to follow prior precedent.

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood v. Casey, but arguably loosened in meaning its decision in Dobbs v. Jackson Women’s Health Organization.  Indeed, the Court’s decision in Dobbs, in which it reversed the fifty-year old precedents of Roe v. Wade and its successor Casey, suggests that the Kennedy case could face a similar fate.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis.  In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time.  Pursuant to “the evolving standards of decency mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.

As such, there become two possibilities with respect to applying stare decisis under the Eighth Amendment.  First, stare decisis could mean what it means in other contexts — deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the previously Casey and now Dobbs test. A lternatively, stare decisis could mean following the evolving standards of decency doctrine.  This approach contemplates the Amendment would change over time, such that stare decisis would require overruling of precedent, moving the case law in a progressive, less punitive direction.

This Article argues for the latter reading.  Specifically, the Article makes the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

In Part I, the Article explores the origins of the unique doctrine of Eighth Amendment stare decisis.  Part II examines past and future applications of this doctrine.  Finally, in Part III, the Article explains why the Court’s decision in Dobbs supports Eighth Amendment Stare Decisis.