"Whatever is humane, is wise--whatever is wise, is just--and whatever is wise, just, and humane, will be found to be the true interest of states, whether criminals or foreign enemies are the objects of their legislation." (1)
The Eighth Amendment has spawned a great torrent of scholarship and jurisprudence. The United States Supreme Court, and the scholarship that has followed its decisions, has split the Eighth Amendment's admonition that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (2) into different sets of analysis for civil punitive awards, imprisonment, and capital punishment. (3) Overall, scholars have criticized the Court for its rigidity and formalism in Eighth Amendment jurisprudence regarding the length and form of punishment. (4)
The solution that most scholars propose to the perceived formalism is an increased role in proportionality for death penalty cases. (5) However, looking at Eighth Amendment jurisprudence in its entirety, the more logical solution to cleanse the messy jurisprudence is to adopt the mode of analysis that the Court already uses for death penalty cases and apply it to non-capital punishment cases. Both capital and non-capital punishment cases involving the Cruel and Unusual Punishment Clause involve an objective indicia analysis to determine whether the punishment in question is in line with the "evolving standards of decency that mark the progress of a maturing society." (6)
In the large field of Eighth Amendment scholarship, very little attention has been paid to the use of legislatures to determine the objective indicia of the current standard of decency. (7) Most of that scholastic attention has been negative. (8) This note will argue why the Court is correct in using state legislatures to determine a national consensus and why that mode of analysis should be used for cases involving both deprivation of liberty and life.
In Part I, I will give background on the history of the constitutionality of punishments in this country. In Part II, I posit a new justification for the use of state legislatures to determine a national consensus namely that state criminal law, which is representative of the morals of the community, acts as the best objective indicator of consensus. Also, I will respond to counterarguments to the national consensus standard. In Part III, I will argue that the national consensus standard analysis should be used for both capital punishment cases and imprisonment cases; I will use Graham v. Florida and Sullivan v. Florida as case studies to illustrate the new mode of analysis.
I. A SURVEY OF THE SUPREME COURT'S CRUEL AND UNUSUAL JURISPRUDENCE GENERALLY
The Supreme Court has created different jurisprudential tracks for capital and non-capital punishment. This section will provide a survey of the current state of decisions and how the Court arrived at its current standards for capital and non-capital punishment.
A. Capital Punishment Jurisprudence
The birth of Eighth Amendment analysis was Weems v. United States, (9) in which the Court made three important statements that have resonated throughout the history of the Eighth Amendment. First, the Court gave the progressive Eighth Amendment life by stating, "[t]he clause of the Constitution... may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened.... " (10) Second, the Weems Court declared that a cruel and unusual punishment "exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The State thereby suffers nothing and loses no power." (11) Cruel and unusual punishment, therefore, is an illegitimate use of state power as it is contrary to the objectives of criminal law. The third important element of Weems was the introduction of proportionality to the realm of the Eighth Amendment. …