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Evolving Standards of Decency

Weems is also important for introducing into legal doctrine the idea that the Eighth Amendment’s prohibition on cruel and unusual punishment must change as society’s understanding of what is cruel changes. As McKenna wrote, the clause “may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” This view was later upheld in another foundational Eighth Amendment case, Trop v. Dulles (1958). Trop involved a member of the Army who deserted his post during World War II. His punishments included the revocation of his United States citizenship (as well as prison time and a dishonorable discharge). In 1952, Trop challenged his loss of citizenship in federal court. After Trop lost at trial and on appeal, the Supreme Court took the case.

Writing for the Court, Justice Warren made several arguments against the punishment’s constitutionality, including an appeal to the Eighth Amendment. Rejecting the argument that losing one’s citizenship is not a punishment, Warren writes:

Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.

At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment… it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.

The exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice… The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights…

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime…

The key phrase in this excerpt is “evolving standards of decency,” a concept that would be central to the interpretation of the Eighth Amendment going forward. As with proportionality, the interpretation of the Eighth Amendment “evolving” alongside society has been supported by a majority of justices, though not all.

Soon after Trop, the Eighth Amendment was incorporated against the states in Robinson v. California (1962), another unusual set of facts that involved the application of a California law that made it illegal to be addicted to narcotics. The Court rejected the notion that one could be constitutionally punished for having a disease (its lens for addiction), with Justice Stewart adding an important concurrence that argued you could not be constitutionally punished for a status or condition, as opposed to for your actions.