I. DEMOCRATIC EVOLUTION OF "STANDARDS OF DECENCY" IN CRIMINAL PUNISHMENT
Judicial regulation of criminal punishment is fairly uncontroversial, although few have seriously considered how an alternative system, one in which the state legislatures and enacted statutes predominantly controlled the law of criminal punishment, would differ. (1) Upon comparison to the law of corporal punishment, an area controlled by the legislature, it appears that the public naturally uses a form of progressive civility without being forced to do so as judges compel in Eighth Amendment law. Some criminal punishments clearly fall within Eighth Amendment prohibitions, violating the Cruel and Unusual Punishments Clause; (2) certainly, courts should address and forbid such punishments. Whether other, less extreme punishments violate the clause, however, is more controversial. (3) The Supreme Court addressed many such punishments through its evolving standards of decency test. (4)
Much of the change in what the law forbids as "cruel and unusual," however, comes not through the Court and its evolving standards of decency test but instead through legislative changes that are often driven by evolving public opinion. (5) The changes in criminal punishment that have resulted from court opinions were based on several factors, notably including public opinion. (6) The Court's determination of public opinion, however, is complex: it examines statutory law, applications of statutes in jury sentences, general public views, and recent state trends. (7) In addition to considering public opinion, the Court considers the opinions of its members, the views of expert organizations (professional and religious), and, occasionally, international norms. (8) Judicial emphasis on sources other than public opinion drives the "evol[ution of] standards of decency" at a faster rate than would simple reliance on general public opinion, frequently outpacing societal views on which punishments should be prohibited. (9)
An examination of state laws indicates that states are increasingly banning corporal punishment, thereby rendering inconsequential judicial standards of decency. Because the Eighth Amendment does not forbid noncriminal corporal punishment of children by parents and teachers, (10) and because state courts generally defer to the legislature in determining the legality of such punishment, (11) development of this area of law is primarily statutory (12) and therefore driven in great part by changes in public opinion. Hence, allowing the legislature to determine the legality of punishment does not hamper the evolution of standards of decency. Instead, legislative determinations provide a more natural change in law, occurring at a rate that more closely corresponds to the change in public opinion. In light of the natural change in public opinion about the legality of noncriminal corporal punishment, judicial interference in borderline-objectionable punishments has proven less necessary than proponents of the judicial regulation approach predicted.
Even in the absence of judicial mandates, the legality of criminal punishments would not stagnate, forbidding only those punishments proscribed in 1791. Public opinion gradually has moved in favor of more humane forms of criminal punishment. Much as it has effected change in the realm of noncriminal corporal punishment, the democratic process likely would yield changes in the law of criminal punishments similar to those brought by the courts' doctrine of evolving standards of decency, but at a pace more consistent with the actual evolution of public standards of decency. (13)
II. CRIMINAL PUNISHMENT AND THE EIGHTH AMENDMENT
Supreme Court evaluations of the legality of criminal punishment focus on the Eighth Amendment. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (14) …