Academic journal article The Journal of Law in Society

Evolving Standards of Decency vs. the "Fleeing Violent Felon" Justification for the Use of Deadly Force

Academic journal article The Journal of Law in Society

Evolving Standards of Decency vs. the "Fleeing Violent Felon" Justification for the Use of Deadly Force

Article excerpt


The concept of "the evolving standards of decency" is quite familiar within the context of Eighth Amendment jurisprudence. With respect to constitutional protections, this perspicuous phrase stands for the proposition that courts should respect the evolution of societal views regarding the boundaries that limit the punishment a government may inflict on its citizens. For example, there was a time when many Americans believed it was morally acceptable to execute juvenile defendants or the mentally infirm. Yet, as cultural and social mores evolved over time, we as a society came to find this practice morally repugnant. When interpreting the Eighth Amendment, the Supreme Court has often invoked changes in societal attitudes when defining the constitutional boundaries of criminal punishment, in particular, vis-a-vis the death penalty.

This comment will advocate for the importation of the concept of "evolving standards of decency" from Eighth Amendment jurisprudence into the Fourth Amendment context to define the moral boundaries governing the use of deadly force against criminal suspects attempting to evade arrest. More specifically, this comment will argue that "evolving standards of decency" preclude the use of deadly force against a fleeing person who presents no imminent threat but for whom there is probable cause to believe that the person has committed a violent felony. Despite a building national consensus among police departments to the contrary, such use of force continues to be sanctioned by courts and legislatures across the United States.


It is axiomatic that the Eighth Amendment prohibits the government's use of "cruel and unusual" punishment against its citizens. The core concept reflected in this legal phrase is "firmly established in the Anglo-American tradition of criminal justice" and can be traced back to the Magna Carta. (2) At the heart of the matter, is "nothing less than the dignity of man." (3) The Supreme Court has acknowledged that "[w]hile the State has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards. (4) In Trop v. Dulles of 1958, the Court explicitly recognized that the language of the Eighth Amendment is imprecise and the scope is "not static," and explained that the Amendment must draw its meaning from "the evolving standards of decency that mark the progress of a maturing society." (5)

The Court has since invoked this meaningful phrase in defining the contours of the government's ability to punish in a variety of contexts. Of course, nowhere are the competing interests implicated by criminal sanctions more compelling than where the government seeks to take not just liberty, but life. The Court has referenced changing societal views as a reason to curtail the government's ability to impose death as the ultimate criminal sanction in a line of important cases, particularly in the last two decades. (6) In 2002, the Court ruled that "evolving standards of decency" preclude the execution of persons with mental deficiencies. (7) In 2005, the Court cited "evolving standards" in holding that the death penalty may not be used on juvenile offenders. (8) For similar reasons, in 2008, the Court proscribed use of the death penalty as punishment for the rape of a child where the crime did not result in the death of the victim. (9) Additionally, recognizing a national consensus around the issue, in 2012, the Court held that a mandatory sentence of life without parole for a juvenile convicted of homicide violates the Eighth Amendment. (10)

When considering moving a constitutional boundary based on changing societal attitudes about a particular type of punishment, "the Court first looks to state law" to assess whether or not a "national consensus" has formed around the issue. (11) However, lack of agreement among state legislatures is not dispositive. …

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