“Cruel and Unusual Punishments and the Constitutional Status of the Idea of Progress”

The title of this post is the title of this new paper authored by R. George Wright and now available via SSRN. Here is its abstract:

More than three generations ago, the Supreme Court took Eighth Amendment jurisprudence on a distinctive path.  The 1958 case of Trop v. Dulles declared that the notion of Cruel and Unusual Punishments “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  This Article carefully unpacks that language, with particular attention to relevant ideas of progress, and then addresses the current status of the Trop test in light of the Court’s increasing attention to questions of text, history, tradition, and established precedent.