The Death of Decency: How a Case About Homelessness Nearly Upended Seventy Years of Eighth Amendment Jurisprudence

I. Introduction

Nearly sixty-six years ago, the United States Supreme Court, while opining on the nature and purpose of the often mercurial Eighth Amendment, adopted a formulation that has undergirded nearly all Eighth Amendment jurisprudence since. On its face, the Eighth Amendment is as short as it is vague: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”^[1] Indeed, drafters and early courts struggled to define exactly what the Amendment meant by “cruel and unusual,” cycling through various analytical methods.^[2]

However, in the seminal Trop v. Dulles, the Court definitively concluded that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”^[3] Thus, the Court incorporated into Eighth Amendment doctrine several foundational concepts. First, it announced that the Eighth Amendment is not a static document (i.e., it prohibits more than was just prohibited at the time of the ratification of the Constitution).^[4] Second, it assumed that societally accepted punishments are expected to evolve in one direction: toward increasingly kind and humane punishments.^[5] Guided by these principles, later dubbed “the evolving standards of decency” doctrine based on the Trop language, the Court applied a test based on an evolving sense of societal decency, declaring unconstitutional such practices as the death penalty for the intellectually disabled,^[6] the death penalty for juveniles,^[7] the death penalty for the insane,^[8] the death penalty for rapists of adult victims,^[9] the death penalty for rapists of child victims,^[10] and certain life without parole sentences for juveniles,^[11] among others.

In 2024, however, a new battle emerged over the evolving standards of decency, centered around a case concerning, of all things, municipal ordinances addressing homelessness.^[12] The Supreme Court granted certiorari to this Ninth Circuit case,^[13] in which twenty states filed an amicus brief specifically asking the Court to revisit Trop and do away with the evolving standards of decency.^[14] Thus, this case represented a legal crossroads, a moment in time at which many in the nation were contemplating the very real possibility that the Supreme Court may call into question nearly seventy years of Eighth Amendment jurisprudence.

This Comment seeks to explain how Eighth Amendment jurisprudence got to this point and to give a lay of the land as it currently stands. First, this Comment will walk through some of the history of the Eighth Amendment and the evolving standards of decency, describing the development of the doctrine up to Trop, the general structure of the evolving standards of decency test that the Court developed, and several illustrations of the test’s application to juveniles and the intellectually disabled. Second, this Comment will address some recent challenges to the evolving standards of decency doctrine by noting the Supreme Court’s recent retreat from the doctrine and by addressing scholarly critique of the doctrine, most notably from Professor John F. Stinneford. Finally, this Comment will walk through the most recent challenge to the doctrine by detailing the background to City of Grants Pass v. Johnson, commenting on the amicus brief submitted by twenty states, discussing the Court’s ultimate decision, and submitting for consideration the Author’s own predictions and suggestions for the evolving standards of decency moving forward.

II. The History of the Eighth Amendment and the Evolving Standards of Decency

A. The Development of the Constitutional Provision

The concepts now enshrined in the Eighth Amendment of the Constitution did not themselves originate in the drafting process of the Constitution, but rather date back to prior colonial and English legal traditions. In particular, the text of the Amendment was imported from the 1776 Virginia Declaration of Rights, which had itself taken the language from Article 10 of the English Bill of Rights.^[15] Though there is disagreement among experts about what exactly the prohibition against cruel and unusual punishments in Article 10 was intended to prohibit, most experts agree that it was meant to include both torturous punishments and punishments excessive in light of common practices.^[16]

However, the drafters of the 1776 Virginia Declaration of Rights and the United States Constitution may not have had the same understanding of the meaning of this language. In particular, the drafters of the Virginia Declaration of Rights may have understood the prohibition on cruel and unusual punishments as placing a ban only on barbarous methods of punishment.^[17] Furthermore, during the drafting of the Constitution, several representatives, including Patrick Henry and George Mason of Virginia, commented that this Amendment would prohibit torture and other “cruel and barbarous punishment[s].”^[18] However, the Amendment was adopted after minimal debate, and even representatives present expressed confusion over what exactly would be prohibited by the Amendment, with one representative criticizing the “indefinite[ness]” of the language.^[19]

Thus, the drafting history of the Amendment provides some context to the drafters’ original intent, but ultimately the task fell on the courts to interpret and develop the vague language of the Eighth Amendment.

B. The Early Jurisprudence of the Eighth Amendment

The early jurisprudence of the Eighth Amendment was characterized by courts struggling to create a consistent and workable test for what the prohibition against cruel and unusual punishment actually forbade. For example, the Supreme Court in Pervear v. Massachusetts was asked to analyze whether the imposition of a $50 fine and a sentence of three months of hard labor for the crime of selling liquor without a license was prohibited by the Eighth Amendment.^[20] Though the Court’s decision rested in part on the fact that the Eighth Amendment had not yet been incorporated against the states, the Court also determined that this sentence could not be considered cruel and unusual because it was not an unusual punishment, being the standard mode adopted in most states at the time.^[21] The Pervear Court’s analysis is indicative of an early tendency of courts to separately analyze the cruelty and unusuality of a particular punishment, in this case determining that a punishment could not be forbidden under the Eighth Amendment if it was not both cruel and unusual.^[22]

However, just twelve years later, the Supreme Court addressed an Eighth Amendment challenge in Wilkerson v. Utah by seemingly suggesting that a punishment that was sufficiently cruel would be prohibited under the Eighth Amendment, regardless of its unusuality.^[23] Thus, these two cases exemplify a struggle within the Court to determine whether punishments forbidden under the Eighth Amendment had to be both cruel and unusual or alternatively excessively cruel or excessively unusual.

Still, the same threads from the discussion around the Amendment’s drafting persisted. On one hand, the Wilkerson Court remained certain that the Eighth Amendment, at the very least, proscribed torture, saying that “it is safe to affirm that punishments of torture . . . are forbidden by that amendment to the Constitution.”^[24] On the other hand, the Court also acknowledged that it was inherently difficult to trace the exact contours of what was prohibited and allowed by the vague Eighth Amendment text, saying “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.”^[25] The vagueness surrounding Eighth Amendment doctrine might be traced to the simple fact that the Court heard relatively few cases on the matter until the Amendment was incorporated against the states.^[26] Thus, the question of how to best interpret the Cruel and Unusual Punishments Clause remained open.

C. The Establishment of the Evolving Standards of Decency Doctrine

It was in the early twentieth century that the modern form of Eighth Amendment doctrine began to take shape, starting with the Supreme Court’s decision in Weems v. United States.^[27] There, the Court addressed a statute that imposed the cadena temporal punishment upon a man convicted of falsifying an official document.^[28] The punishment of cadena temporal, however, was essentially a long sentence of hard labor, as the Court explained: “those sentenced to cadena temporal and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.”^[29] The Court concluded that such a sentence violated the Eighth Amendment through its grossly disproportionate nature.^[30] Interestingly, the Court also based its opinion, in part, upon an understanding that the Constitution and this Clause, in particular, must be interpreted in an evolving manner:

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it.” The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be.^[31]

This language is of deep significance because it shows that the Weems Court had incorporated into Eighth Amendment doctrine the idea that what is considered cruel and unusual is not a static concept, defined merely by a certain understanding at a certain historical time. Rather, the Court understood that “the content of the prohibition changes as societal conceptions of what constitutes cruel and unusual change over time.”^[32]

The Court further expounded on and cemented this idea in its seminal 1958 case, Trop v. Dulles.^[33] There, the petitioner, a former U.S. Army private, was dishonorably discharged during wartime when he deserted his post in Casablanca for less than twenty-four hours.^[34] Eight years later, while applying for a passport, he discovered that his U.S. citizenship had been revoked under the Nationality Act of 1940 as a result of his dishonorable discharge for desertion during wartime.^[35] The Trop Court found that this punishment was cruel and unusual under the Eighth Amendment because, though it did not involve “physical mistreatment” or “primitive torture,” it instead involved a “punishment more primitive than torture”: “the total destruction of the individual’s status in organized society” and the loss of “the right to have rights.”^[36]

In its analysis, the Court delved into the English and American history of the Cruel and Unusual Punishments Clause, concluding that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”^[37] Furthermore, building on Weems, the Court stated that the “words of the Amendment are not precise” and “their scope is not static.”^[38] To summarize, the Court concluded that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”^[39] This is the concept that has since become foundational to the modern understanding of the Eighth Amendment, giving a name to the doctrine^[40] and being repeatedly quoted by later Courts.^[41]

D. Defining the Evolving Standards of Decency Doctrine

As time has gone on, courts have taken this core tenant of “evolving standards of decency” and formulated a coherent doctrine. As William W. Berry III noted, three core principles underlie the Eighth Amendment’s evolving standards of decency doctrine: (1) the evolving nature of societal standards; (2) the use of “differentness” as a basis for giving heightened constitutional scrutiny to some cases; and (3) a test which brings together both objective and subjective elements.^[42]

First, as noted above, this doctrine takes as foundational the fact that the legal prohibition on what is cruel and unusual shifts over time with societal opinions, meaning some punishments once considered acceptable may become, over time, unconstitutional.^[43] Baked into this idea is the hope, and perhaps expectation, that we live in a society that is increasingly becoming kinder, more humane, and less tolerant of the barbarous punishments of the past.^[44] Furthermore, it is noteworthy that, in the midst of long-time debates surrounding the originalist and living theories of constitutional interpretation, Eighth Amendment doctrine is unique in that it has explicitly adopted a living constitution approach.^[45]

Second, the evolving standards of decency doctrine have categorically set aside certain types of cases as “different” enough to warrant increased scrutiny. In particular, the Court has considered death sentences and juvenile life without parole sentences to be fundamentally “different,” applying to these cases the evolving standards of decency doctrine and carving out categorical limitations for certain types of offenders, offenses, and sentences.^[46] In other cases that are not deemed “different,” the Court has instead applied a narrower disproportionality test, asking on a case-by-case basis whether an individual’s punishment was grossly disproportionate to their conduct.^[47]

Third, when applying the evolving standards of decency test to consider a categorical limitation on a particular punishment practice, the Court conducts a two-part analysis, examining both subjective and objective indicia. For the “objective” part of the analysis, courts examine whether a national consensus has formed against the practice, looking to “legislative enactments and state practice” on the matter.^[48] This often involves simply counting the state legislatures that have banned the practice in question,^[49] but can also involve looking at international practices^[50] and the actual frequency with which juries impose the sentence in question.^[51] Often, if a supermajority of states has prohibited a practice, the Court will consider that practice to be in violation of the Eighth Amendment, intuitively understanding the practice to now be “unusual” within the meaning of the Amendment.^[52] However, the Court’s analysis has not always been so straightforward or consistent, sometimes emphasizing the legislative trend over the absolute number of states,^[53] and other times emphasizing the absolute number of states over the trend.^[54]

The second part of the Court’s two-part analysis involves looking at “subjective” indicia, which, in short, means “the Court turns to its own independent judgment to determine whether, in the Court’s view, the practice comports with the existing standards of decency.”^[55] This involves, in part, an analysis of whether the categorical practice in question satisfies a general purpose of punishment (such as retribution or deterrence), with the understanding that a punishment that is unsupported by a valid purpose is cruel.^[56] Interestingly, the Court has always reached the same result in both the subjective and objective steps of its analysis.^[57]

Taken together, one effect of the evolving standards of decency doctrine is its so-called “one-way ratchet.”^[58] Essentially, once the Court determines that a particular practice is unconstitutional, jurisdictions cannot reenact that practice, meaning the national consensus measured by the Court’s objective indicia can no longer point towards allowing that practice.^[59] During oral arguments for Atkins v. Virginia, one Justice summarized this phenomenon:

Well, Mr. Ellis, logically it has to be a one-way ratchet. Logically it has to be because a consensus cannot be manifested. States cannot constitutionally pass any laws allowing the execution of the mentally retarded once—once we agree with you that it’s unconstitutional. That is the end of it. We will never be able to go back because there will never be any legislation that can reflect a changed consensus.^[60]

In essence, the one-way ratchet is a clear embodiment of the principle the evolving standards of decency doctrine has ingrained into its core: the only way in which societal punishments may evolve is towards increasingly humane punishments.^[61] With this doctrine and test in hand, the Court has gone on to declare unconstitutional such practices as the death penalty for the intellectually disabled,^[62] the death penalty for juveniles,^[63] the death penalty for the insane,^[64] the death penalty for rapists of adult victims,^[65] the death penalty for rapists of child victims,^[66] and certain life without parole sentences for juveniles,^[67] among others.

E. The Intellectually Disabled and Juveniles: Two Examples of The Evolving Standards of Decency in Action

Before addressing the current challenges facing this doctrine, it is illustrative to see how the evolving standards of decency doctrine has been applied in two specific contexts: the death penalty for intellectually disabled people and for juveniles.

In the 1989 case Penry v. Lynaugh, the Supreme Court addressed the question of whether the Eighth Amendment categorically prohibited the execution of intellectually disabled individuals.^[68] Looking to objective indicia of a national consensus on the matter, the Court noted that only two states (Georgia and Maryland) had enacted statutes banning the execution of intellectually disabled persons.^[69] Taking these two states together with the fourteen that banned the death penalty outright, the Court found insufficient evidence of a national consensus, holding that the Eighth Amendment thus did not categorically preclude the execution of intellectually disabled persons.^[70]

However, the Court returned to this same question thirteen years later in Atkins v. Virginia.^[71] Noting that the national situation had changed much since Penry was decided, the Court listed sixteen states that had passed statutes banning the execution of the intellectually disabled in the intervening time, in addition to three states whose legislatures had taken steps to pass similar bills.^[72] The Court even observed other indicia of a growing national trend, pointing out, for example, that many of these statutes passed in their respective state legislatures with overwhelming support.^[73] Therefore, “[c]onstruing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’” the Court held that the practice of executing intellectually disabled individuals had become repugnant to the Eighth Amendment.^[74]

A nearly identical story played out in the context of juveniles. In 1989, the Supreme Court in Stanford v. Kentucky found that there existed “neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age,” ruling that such punishments did not violate the Eighth Amendment.^[75] The Court reached this determination by, again, counting the states that allowed and disallowed this practice, finding that “[o]f the 37 States whose laws permit capital punishment, 15 decline to impose it upon 16-year-old offenders and 12 decline to impose it on 17-year-old offenders.”^[76] This, in the Court’s understanding, did not establish a national consensus.^[77] But sixteen years later, in Roper v. Simmons, the Court reached the opposite conclusion, holding that the practice was now cruel and unusual.^[78] In its analysis of the objective indicia, the Court found that thirty states had entirely banned the juvenile death penalty and the rate of juvenile death sentences had dwindled post-Stanford even in the states that still allowed the practice.^[79]

Interestingly, neither the Roper nor the Atkins Courts overruled the prior cases or explicitly criticized the earlier Courts’ reasoning.^[80] This is indicative of the unique nature of the evolving standards of decency doctrine, which allows constitutional rules and prohibitions to shift and evolve as the national consensus changes.

III. Emerging Challenges to the Evolving Standards of Decency Doctrine

In recent years, the evolving standards of decency doctrine has stood on increasingly precarious ground. With the doctrine under fire from both scholars^[81] and sitting judges,^[82] many of its supporters fear its days are now numbered.^[83] The current Supreme Court has more and more ignored the evolving standards of decency doctrine in its Eighth Amendment cases,^[84] and it has, in other areas of law, embraced an originalist constitutional methodology that seems inherently opposed to the evolving doctrine of Trop.^[85] The position of the doctrine has grown so dire that it appeared to truly be in peril when the Supreme Court granted certiorari^[86] on a case in which the attorneys general of twenty states explicitly asked the Court to overrule Trop and do away with the evolving standards of decency doctrine.^[87] In the following sections, this Comment will briefly detail the recent trend of Supreme Court Eighth Amendment jurisprudence before diving into the details of the specific challenges posed to the evolving standards of decency doctrine by Professor John F. Stinneford, a scholar cited by the Supreme Court for his interpretation of the original meaning of the Cruel and Unusual Punishments Clause.^[88]

A. The Supreme Court’s Retreat from the Evolving Standards of Decency

The recent Eighth Amendment jurisprudence of the Court shows that the Court is increasingly setting aside the established evolving standards of decency doctrine and looking to other tests to determine the constitutionality of punishment practices. For example, in the Court’s 2008 case, Baze v. Rees, Chief Justice Roberts’s opinion for the Court makes no mention of the “evolving standards” language of Trop.^[89] In this case, the Court was asked to address the constitutionality of the lethal injection protocol, with the petitioners arguing that the protocol was cruel and unusual because of “the risk that the protocol’s terms might not be properly followed, resulting in significant pain.”^[90] Though Chief Justice Roberts paid lip service to the state-counting of the evolving standards of decency test,^[91] he did not otherwise follow the established test, instead arguing that because the Court had already determined that execution was constitutional there must therefore be some constitutional method of execution.^[92] Such a line of reasoning is inherently in conflict with the core principle of the evolving standards of decency doctrine, namely that punishment once deemed constitutionally acceptable (like capital punishment) may later become abhorrent to the Eighth Amendment as national standards of decency shift over time.

The Court took this line of reasoning further in its 2019 decision in Bucklew v. Precythe.^[93] Here, instead of applying any semblance of the evolving standards of decency test, the Court based its opinion on an originalist evaluation of the “original and historical understanding of the Eighth Amendment.”^[94] While the Court did not explicitly overrule any of its evolving standards of decency jurisprudence, its focus on how “a reader at the time of the Eighth Amendment’s adoption would have understood” the words “cruel and unusual” led it to conclude that the focus of the Amendment was prohibiting “forms of punishment that intensified the sentence of death with a (cruel) ‘superadd[ition]’ of ‘terror, pain, or disgrace.’”^[95]

This rule represents not only a clear separation from the jurisprudence of Trop but also opens the door for states to return to previously discarded methods of execution. Like Baze, Bucklew involved a constitutional challenge to the lethal injection protocol as a method of execution, and here the Court held that a prisoner challenging a method of execution must identify “a feasible and readily implemented alternative method of execution.”^[96] Besides the inherent cruelty of forcing a prisoner to pick and argue for the least painful method of his own execution, this rule raises a number of questions. What if, as Blume and Van Winkle note, “a state says it is unable to find drugs for lethal injection and can only perform executions by electrocution or firing squad?”^[97] Moreover, if, as the Court held, there must be a feasible and constitutional method of execution, a state may cite the difficulty of obtaining lethal injection drugs as a reason for reverting to a previously discarded method of execution, just as South Carolina did in 2021 when the legislature reintroduced the firing squad and electric chair as methods of execution.^[98] The problem, of course, is that these methods were discarded because of their propensity to go horribly wrong and result in gruesome, prolonged deaths.^[99]

While this line of Supreme Court cases is concerning to proponents of the evolving standards of decency doctrine, Baze and Bucklew do not as of now spell doom for the doctrine. For one, as previously noted, neither case explicitly overruled the evolving standards of decency doctrine, with the Bucklew Court making no mention at all of “evolving” standards.^[100] Additionally, both of these cases concerned methods of execution and thus could be reasonably distinguished from the categorical exemption line of cases.^[101] As the Bucklew Court itself noted, the Court had not yet invalidated a state’s chosen method of execution as cruel and unusual, so perhaps the Court is content to apply a different standard to method cases than to other sorts of Eighth Amendment cases.^[102]

Finally, even the Court’s largely originalist opinion leaves the door open for some movement in the understanding of “cruel and unusual.” In its discussion of the original meaning of “cruel and unusual,” the Court quoted a John F. Stinneford article in which he observed that “Americans in the late 18th and early 19th centuries described as ‘unusual’ governmental actions that had ‘fall[en] completely out of usage for a long period of time.’”^[103] Though Stinneford favored doing away with the evolving standards of decency, calling the doctrine “irredeemably vague,” he also argued in the same article that reclaiming such an original meaning of “unusual” would mean still recognizing that certain punishments indeed can fall out of common use and thus become “unusual” in the Eighth Amendment sense.^[104] Indeed, while the Court’s opinion in Bucklew seems to imply that the Eighth Amendment primarily disallows methods of punishment that superadd terror, pain, or disgrace, Stinneford sees in the original meaning of “unusual” a broader application.^[105] For example, he notes both that “the Cruel and Unusual Punishments Clause almost certainly was intended to cover grossly disproportionate punishments” and that some categorical death penalty exceptions may apply when the death penalty has fallen out of usage for a certain crime, such as for burglary or counterfeiting.^[106] Based on this understanding that the Court accepted, petitioners facing execution under previously discarded methods (such as the firing squads and electric chairs South Carolina recently reallowed) may be able to argue that these methods have become “unusual” under the Eighth Amendment.^[107]

Therefore, while the Court’s recent focus on originalism in the Eighth Amendment context endangers the evolving standards of decency doctrine as it has been historically applied, supporters of the doctrine may find hope that the doctrine has not yet been overruled. Furthermore, the Court’s reliance on Stinneford’s work provides a compelling originalist basis for arguing that the Cruel and Unusual Punishments Clause prohibits more than simply the methods of punishment disallowed at the drafting of the Constitution. Still, there are other dimensions to the evolving standards of decency doctrine, and thus it is worth taking the time to explore the exact nature of the most recent challenges to the doctrine.

B. Arguments Against the Evolving Standards of Decency

As shown above, the evolving standards of decency doctrine faces significant criticism from originalists on and off the Court, but we have not fully examined the reasons why. In his critique of the doctrine, Stinneford identified two problems he saw with the evolving standards of decency.^[108]

The first problem Stinneford saw with the test was the so-called “Who decides?” problem.^[109] To Stinneford, the evolving standards of decency doctrine is plagued by vagueness concerning the sources by which the Court purports to determine whether societal standards have evolved: “[Did] the Supreme Court [set] itself up as the ultimate arbiter of the nation’s evolving moral standards? Or is the Court required to look to external sources for these standards? If so, what sources? And what criteria should the Court use in examining them?”^[110] Originalists like Stinneford argue that vague judgment criteria open the door to manipulation by judges hoping to insert their own moral preferences in place of the law.^[111]

Though these arguments seem reasonable in theory, the “Who decides?” problem does not seem to have been a problem for the Court in practice. Though the Court’s evolving standards of decency test requires consideration of subjective indicia,^[112] the Court, when evaluating categories of punishment, has never deviated from the results of its objective indicia.^[113] This, at the very least, suggests that the Court’s own preferences do not singularly control in these cases. Furthermore, Stinneford viewed the Stanford and Roper cases as exemplifying “the inherent instability and manipulability” of the evolving standards of decency, arguing that the societal attitudes had changed only incrementally in the interim, meaning the defining distinction between the cases was actually “an increased assertiveness of judicial will.”^[114] However, Stinneford undersold the difference in objective indicia between the cases. Though, as Stinneford noted, only five states had banned the death penalty for juveniles in the interim between Stanford and Roper, the total number of states disallowing the practice, including states entirely banning the death penalty, shifted from twenty-five to thirty.^[115] Furthermore, the Court bolstered this state counting with further objective analysis, specifically noting that, even in the twenty states allowing the practice, only six had actually executed a juvenile in the interim, and only three had done so in the ten years prior to Roper.^[116] In cases like Roper, the Court’s reliance on multiple types of objective indicia counteracts the originalist criticism that this analysis is mere cover for the imposition of personal moral preference, especially when, as here, all the objective indicia point in the same direction and prove to control the ultimate disposition of the case.

Stinneford’s second criticism of the evolving standards of decency was that it makes the rights of criminal defendants dependent upon public opinion.^[117] Other individual rights enshrined in the Bill of Rights tend to be designed to protect unpopular individuals and minority groups from the whims of the popular majority, while the established Eighth Amendment doctrine seems to only come into play after public opinion has already turned in favor of such defendants.^[118] Additionally, while the evolving standards of decency presuppose that society will grow increasingly kind and humane, sometimes society may actually move in the opposite direction.^[119]

While these points are not without merit, it is unclear whether Stinneford’s suggested approach would actually be more protective of the rights of criminal defendants. Namely, while Stinneford’s Eighth Amendment test that “directs courts’ attention toward new punishments and asks them to decide whether such punishments are consonant with our longstanding traditions” may protect criminal defendants from cruel innovations of punishment, it does little, it seems, to counter the readoption of historically accepted punishments previously discarded.^[120] Though Stinneford argues that a punishment should not be granted a presumption of reasonableness if it has “fallen out of usage for a significant period of time,” he does little to clarify how much time would need to pass for a punishment to lose this presumption of reasonability.^[121] For all the claims that the evolving standards of decency test puts forth a vague standard, it utilizes, at the very least, accepted objective indicia on which a court can rely to determine whether a punishment has become repugnant to the Constitution. Furthermore, even if society is not actually growing more decent in relation to criminal punishment, the evolving standards of decency test in practice forces such development of society through the “one-way ratchet”: once society “evolves” to the point that a particular punishment is repugnant to the Eighth Amendment, the punishment will never again be able to gain popular acceptance despite any societal devolution on the matter. Logically, then, each new case that declares a particular punishment unconstitutional permanently restricts the breadth of possible punishments. On the other hand, Stinneford sees his test as potentially broadening the scope of current punishments that could be subjected to Eighth Amendment scrutiny, opening the door to evaluate punishment innovations, such as the modern practice of imprisonment.^[122] Perhaps, then, one’s preference between these tests turns on what evil one considers more significant: the readoption of older and crueler punishments or the invention of new ones.

Regardless, the Court’s reliance upon Stinneford’s definition of “unusual” in Bucklew paints a bleak picture for the evolving standards of decency test. While a Stinneford-style Eighth Amendment test would avoid the full-originalism of an Eighth Amendment doctrine that only forbade punishments considered cruel in 1790, such a test would also sideline or even dismantle the one-way ratchet, the hallmark of the current doctrine. Still, the evolving standards of decency survived Bucklew, and it has only recently come back into the sights of the nation’s highest Court.

IV. City of Grants Pass v. Johnson: The Last Stand of the Evolving Standards of Decency?

On January 12, 2024, the U.S. Supreme Court granted certiorari to a Ninth Circuit case, City of Grants Pass v. Johnson.^[123] This case, which involved the application of the Eighth Amendment to a city ordinance affecting homelessness,^[124] represented the most significant challenge yet to the evolving standards of decency doctrine, because the attorneys general of twenty states directly asked the Court to reconsider the doctrine.^[125] Though the Court ultimately did not use this opportunity to reconsider Trop,^[126] this case is worth analyzing because it provides a clear picture of the current reality of the doctrine and because Grants Pass will not be the last threat to the Trop doctrine.^[127] This section will briefly walk through the background of this case, the arguments of the parties in regard to the evolving standards of decency doctrine in particular, and the ultimate disposition of the case before the Supreme Court. Finally, this Comment offers an opinion regarding the current state of the doctrine and a potential path forward for the Court.

A. A Brief Overview of Grants Pass and the Recent Eighth Amendment Jurisprudence of the Ninth Circuit

In 2019, the Ninth Circuit issued a ruling in Martin v. City of Boise concluding that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”^[128] In reaching this conclusion, the court of appeals relied upon a thread of Eighth Amendment jurisprudence that has thus far gone unaddressed in this Comment: a sequence of decisions declaring, in essence, that any law that criminalizes a person’s status (as opposed to their conduct) runs afoul of the Eighth Amendment.^[129]

The significance of this decision extended beyond the confines of Eighth Amendment jurisprudence in the courtroom, as this decision came to play a pivotal role in shaping the policies in regard to homelessness, particularly on the West Coast.^[130] Many cities scrambled to modify their ordinances to comply with (or find loopholes in) Martin, and though no other circuit court adopted this position explicitly, dozens of other courts, including the Fourth Circuit, cited Martin.^[131]

However, Martin did not, on its face, seem particularly relevant to the evolving standards of decency doctrine. The court in Martin never cited Trop, nor did they ever rely upon the “evolving standards” language.^[132]

About six weeks after the Martin decision, homeless individuals filed a class action suit against the City of Grants Pass on behalf of a class of persons who are “involuntarily homeless,” arguing that certain city ordinances were unconstitutional.^[133] Consistent with Martin, the Ninth Circuit, on appeal, held that the Eighth Amendment makes it “unconstitutional to [punish] simply sleeping somewhere in public if one has nowhere else to do so.”^[134]

However, unlike Martin, several of the Grants Pass opinions touched on the evolving standards of decency doctrine. Notably, Senior Judge O’Scannlain authored an opinion arguing that the Grants Pass ruling conflicted with the “text, history, and tradition of the Eighth Amendment.”^[135] Specifically, he stated that “Constitutional text, history, and tradition make plain that the [Cruel and Unusual Punishments] Clause was directed to modes of punishment” and not to limit the sort of acts the legislature could prohibit, “certainly not before conviction.”^[136] By implication, it seems that Judge O’Scannlain considered the proper constitutional grounds for decision-making to be the “text, history, and tradition of the Constitution,” citing decisions such as Dobbs and Bruen to bolster this assertion.^[137]

In contrast, Judges Silver and Gould, in a joint statement regarding the denial of rehearing, asserted that, as it currently stands, the Supreme Court’s accepted method for assessing Eighth Amendment claims is not “text, history, and tradition” but rather “the evolving standards of decency that mark the progress of a maturing society.”^[138]

Thus, though Grants Pass was not a direct outgrowth of the evolving standards of decency test that has been applied to categorical death penalty exceptions, it had at its core the very conflict threatening the established doctrine: a conflict between “text, history, and tradition” on one hand and “the evolving standards of decency that mark the progress of a maturing society” on the other.^[139]

B. The Idaho Amicus Brief

The most full-throated attack upon the evolving standards of decency in the Grants Pass saga came in the form of an amicus brief filed on behalf of Idaho, Montana, and eighteen other states. The states rooted their interest in a rather dramatic portrayal of the homelessness epidemic, painting an almost dystopian image of the state of cities affected by Martin.^[140] With this context, the states argued that the Martin and Grants Pass decisions should be overturned on the basis that (1) criminal law and land-use policy are state issues; and (2) the decisions are an “[o]utgrowth” of the illogical, atextual, and ahistorical evolving standards of decency doctrine.^[141] The latter argument is most relevant to this Comment.

The central concern of the states regarding the evolving standards of decency doctrine was that “it engrafted increase, instability, and subjectivity to the text.”^[142] This concern mirrored Stinneford’s “Who decides?” problem, for both Stinneford and the states argued in essence that “[c]ourts should not be tasked with judging the changing winds of society’s evolving morals.”^[143] The solution, according to the states, was “to ground the Eighth Amendment’s meaning in text, structure, and history.”^[144]

Next, the states took aim at Trop itself, arguing that the “evolving standards” language, in that case, was dicta resulting from brief and insufficient textual analysis.^[145] Though the evolution of societal decency was not, on its face, the foundational piece of the Trop decision, it would be incorrect to characterize it as mere dicta. Instead, the Trop Court delved into the meaning of the Eighth Amendment, distinguishing core concepts (“the dignity of man”) from the meaning of the Amendment that shifts with time (“the evolving standards of decency that mark the progress of a maturing society”).^[146] Additionally, it is worth noting that a deep dive into the text, structure, and history of the Eighth Amendment may not be as clear and conclusive as the states seem to think it would be, given that the drafters themselves were not clear on what is prohibited.^[147]

The states also criticized the evolving standards of decency as a “lawless standard” by which the Court disregards precedent, bolstering this claim by appealing to the examples of the Penry-Atkins and Stanford-Roper sagas.^[148] In regards to both sagas, the states argued that the Court “overturned” a prior decision based on a sketchy determination of national consensus via the banning of the practice by “18 of 38 states with the death penalty.”^[149] Again, this argument mirrored that of Stinneford, and thus the same rebuttals previously stated apply here as well.^[150] The Court’s decisions in those cases were firmly rooted in the analysis of objective factors indicating a national trend, and the subjective analysis of the Justices tracked with the objective analysis, as it always has.^[151]

As an alternative, the states suggested that the proper test for Eighth Amendment analysis should be “the text, structure, and history” of the Amendment, noting that this is the “‘standard’ approach the Court applies when interpreting constitutional text.”^[152] Under this understanding, the states argued that “[t]he Amendment is ‘directed to modes of punishment’—it does not limit ‘the substantive authority of legislatures to prohibit “acts” like those at issue here, and “certainly not before conviction.”’”^[153] The states also acknowledged that the Eighth Amendment must not prohibit only those punishments considered cruel and unusual at ratification.^[154] However, the states offered little explanation on how exactly a judge might determine that a punishment allowable at ratification has become repugnant to the Constitution, offering only vague musings on the “being” and “becoming” attributes of the Constitution.^[155]

Therein lies the crucial problem with a “text, structure, and history” approach to the Eighth Amendment. No originalist legal minds, not Stinneford, not Justice Scalia, and not the states in this amicus brief, want the Eighth Amendment to only proscribe punishments considered cruel and unusual at the founding.^[156] However, each failed to offer any clear system for determining when a previously acceptable practice becomes cruel and unusual. For all its flaws, the evolving standards of decency doctrine provides such a system, complete with precedential guidance concerning how courts should weigh the objective indicia. If we lose the evolving standards of decency doctrine, we lose its one-way ratchet protecting us from previously discarded punishments, meaning a “text, structure, and history” approach might signal the return of punishments currently held to be cruel and unusual.^[157] More fundamentally, however, an evolving understanding of the Eighth Amendment opens the door to applications like that of the Ninth Circuit in Martin and Grants Pass, which seek to curtail novel forms of governmental cruelty that do not fall neatly into the category of “modes of punishment.”

C. The Supreme Court’s Decision

Ultimately, the Supreme Court overturned the Ninth Circuit decision and held that Robinson and the Eighth Amendment do not support such a ruling.^[158] Notably, the Court did not take aim at the evolving standards of decency or Trop, instead rooting their analysis in Robinson, a case which held, in essence, that the Eighth Amendment prohibits the criminalization of the status of narcotics addiction.^[159] To some extent, this was an unsurprising result, given that Martin was rooted in Robinson and Powell, never mentioning Trop.^[160] Still, the Court’s relative silence on the debate between originalism and evolving standards is noteworthy. Given the Court’s recent jurisprudence in other legal areas, the Court could easily have taken the opportunity to adopt some form of the states’ suggested “text, structure, and history” analysis.^[161] Instead, the Court made only passing remarks concerning the text, history, and original public meaning of the Eighth Amendment.^[162]

However, the concurring and dissenting opinions from Justices Thomas and Sotomayor each mentioned Trop.^[163] Justice Thomas, perhaps unsurprisingly, stated that Robinson was wrongly decided and that its “holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause.”^[164] The error of Robinson, in Justice Thomas’s view, is the same error that pervades “[m]uch of the Court’s other Eighth Amendment precedents,” namely that “[m]odern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause.”^[165] Quoting Trop by noting that the Court has often “set out to enforce ‘evolving standards of decency,’” Justice Thomas concluded that the Court should instead “adhere to the Cruel and Unusual Punishments Clause’s fixed meaning.”^[166]

On the other hand, Justice Sotomayor positively referenced Trop twice in her dissenting opinion, though never directly addressing the evolving standards of decency.^[167] Even acknowledging Trop positively is a significant statement, especially in light of Justice Thomas’s direct criticism.

Ultimately, however, the effect of Grants Pass upon the evolving standards of decency is unclear. Justice Thomas would certainly jump at the opportunity to establish a more fixed meaning for the Cruel and Unusual Punishments Clause, but that is unsurprising coming from a constitutional originalist like him.^[168] That said, supporters have some reasons for hope. The Court is evidently reluctant to wade into the debate directly, given the Court’s silence on the matter despite the states’ amicus brief. Still, this is certainly not the last challenge facing the evolving standards of decency doctrine.

D. Where We Go from Here

What, then, do we make of Grants Pass? What did this saga reveal about the state of the evolving standards of decency? First, it is significant that opponents of the doctrine, both on and off the Court, have grown more vocal in their opposition.^[169] By calling for an adherence to a fixed meaning of the Cruel and Unusual Punishments Clause and criticizing the Court’s usage of “evolving standards” as essentially judicial activism, Justice Thomas has clearly indicated his eagerness to overrule Trop.^[170] Opponents outside the Court are growing in boldness as well, as clearly shown by the directness of the states’ amicus brief.^[171]

Second, Grants Pass may also show that the Court as a whole may not be as eager as Justice Thomas to reconsider Trop. The Court could very easily have laid the foundation for a “text, structure, and history” analysis of the Eighth Amendment while ignoring Trop in its majority opinion, but Justice Gorsuch made only passing references to the Amendment’s text, history, and original meaning.^[172] Instead, the Court focused its analysis on precedent, namely Powell, to which the Court found the present case comparable.^[173] Though the current Court is certainly open to upending decades of precedent,^[174] the Court’s relative respect for Eighth Amendment precedent in this case may be telling, given the fact that losing the doctrine would upset seventy years’ worth of cases and call into question the categorical death penalty exceptions for juveniles, the intellectually disabled, and rapists.^[175] Losing the evolving standards of decency would, at least in the short term, inject incredible uncertainty and instability into the world of criminal law.

Regardless, Grants Pass is only the beginning. Indeed, as the case was only tangentially related to the evolving standards of decency doctrine, it is truly only a preview rather than the first battle. Other petitioners are raising the same request to overrule Trop, and the Court would likely be forced to address these requests in one way or another when and if they have reason to review a death sentence, allowable under a 2023 Florida statute, for sexual battery of a minor.^[176] Even if the Court did not want to overrule Trop explicitly, it could very easily diminish and dismiss as dicta the “evolving standards of decency that mark the progress of a maturing society” language, just as the states did in their amicus brief.^[177]

Perhaps, however, there is an alternative, a middle path for a Court unwilling to either fully adopt or fully discard Trop. According to Stinneford, a test based on history and “longstanding traditions” is better equipped to address cruel innovations in punishment than the evolving standards of decency.^[178] Additionally, while many agree that the Eighth Amendment must prohibit more than only those punishments considered cruel and unusual at the ratification of the Constitution,^[179] no current formulation of a “text, structure, and history” test gives enough clarity to direct judges as to when to declare unconstitutional a previously accepted punishment.^[180]

Thus, perhaps both approaches would benefit from a merging of the two. Under this combined framework, novel punishments are compared with longstanding history and tradition while accepted punishments challenged in court can undergo an evolving standards of decency analysis to determine whether a national consensus is developing against them. Put another way, a punishment would be deemed cruel and unusual if it is crueler than historically accepted punishments or if a national consensus has developed against it. Such an approach may have several benefits. First, it retains the one-way ratchet of the evolving standards of decency, preventing erosion of any societal progress towards increased decency. Second, it avoids the potential pitfall of the evolving standards of decency, namely the assumption that society is necessarily always becoming more decent. Thus, a text, structure, and history analysis may be preferable in situations when society has not yet developed an adequate consensus to protect an unpopular criminal class. Finally, such a compromise test is perfectly compatible with the existing evolving standards of decency test, as it merely clarifies the nature of the subjective portion of the test. This means that, within the framework of the evolving standards of decency, the objective portion would still involve the traditional analysis of objective indicia (e.g., state counting), while the subjective portion of the test would involve a comparison of the punishments with longstanding history and tradition, with failure of either prong individually sufficient to declare a practice unconstitutional and satisfaction of both needed to uphold the practice.

Such an approach, by combining the two tests, would, naturally, be more restrictive on state punishment practices, as it would provide two separate avenues for declaring a particular punishment unconstitutional. For example, a punishment would be unconstitutional if it could be shown to be crueler than historically accepted punishments, even if a national consensus had not yet developed against it. Thus, this test provides potential plaintiffs with multiple angles of attack against a particular punishment practice. Because the fundamental concept underlying Eighth Amendment determinations is, as the Court has repeatedly stated, the human dignity of the person punished, perhaps states should have to work harder to craft humane punishments that do not run afoul of either prong of this combined test.^[181] Even if our nation does not naturally grow more decent, perhaps a more robust test such as this could, in some way, force an evolution of decency in the realm of punishment.

Ultimately, it is doubtful whether this current Court would look favorably enough on the evolving standards of decency doctrine to try and salvage it, but it is, for many reasons already stated, worth salvaging.

V. Conclusion

As the Trop Court stated, “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”^[182] Thus, the evolving standards of decency doctrine, far from being simply a legal oddity confined to courtrooms, touches on some of the core philosophical and moral foundations that underly our legal and social structures. Is dignity a static concept, defined once and for all time? Or do we aspire to be a people defined by an ever-expanding concept of dignity, rooted in the aspiration that future generations will be kinder than past ones? These are some of the questions essential to the current Eighth Amendment debate. Though we likely stand on a precipice before the unknown, with much established Eighth Amendment jurisprudence potentially on the chopping block in the years to come, there are still reasons to believe the Court need not and would not entirely do away with all the fruit of the evolving standards of decency doctrine.

Douglas Steinman