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

By Fairley, Sharon R. | The Journal of Law in Society, Spring 2019 | Go to article overview

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


Fairley, Sharon R., The Journal of Law in Society


INTRODUCTION

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.

I. EVOLVING STANDARDS OF DECENCY AND THE EIGHTH AMENDMENT

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.