The Historical Development of the Evolving Standards of Decency (ESD) Doctrine in the U.S. Supreme Court

One of the most controversial elements of the U.S. Bill of Rights is the Cruel and Unusual Punishments Clause of the Eighth Amendment which states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S. Const. Amdt. 8). Whether the use of the death penalty is an instance of cruel and unusual punishment has been the subject of sustained and intense debate given that there have been over 16,000 legal executions in the United States from 1700 until 2019 (TIME).

Though many Americans still declare that the use of the death penalty is an instance of cruel and unusual punishment, the history and the language of the Constitution say otherwise. Legal historian Kenneth Williams points out that “[t]he framers of the Constitution and the Bill of Rights did not prohibit capital punishment in 1791” (6). Rather, “[c]apital punishment was widely practiced when the Constitution and Bill of Rights were written, and the fact that the framers did not specifically condemn capital punishment was not an oversight” (6). For example, the Fifth Amendment specifically mentions “capital” crimes and the Due Process Clause of the Fifth Amendment implicitly asserts that even life itself can be taken from an individual so long as it is done through proper legal mechanisms.

Instead of constituting a concentrated effort to strike down capital punishment, the Cruel and Unusual Punishments Clause is more often understood as striking a balance of power between the legislative and the judicial branches of the United States government. The Cruel and Unusual Punishments Clause provides the Supreme Court with a tool for striking down punishments that violate a perpetrator’s Constitutional rights.

Yet the standards which the Court has utilized to assess various punishments have changed over time. To determine exactly what it means for a punishment to be considered “cruel and unusual,” the Court has developed and made use of the Evolving Standards of Decency Doctrine (henceforth referred to as the ESD Doctrine) through cases such as Wilkerson v. Utah, Weems v. United States, and Trop v. Dulles. Each of these cases made a significant contribution to the formal recognition and normative use of the ESD Doctrine.


Since its ratification in 1791, the Eighth Amendment has been scrutinized by the Supreme Court infrequently in comparison to other amendments such as the First, Second, or Fifth. As legal scholar Corinna Barrett Lain observes, “[t]he Supreme Court decided only six cases under the [Cruel and Unusual Punishments] Clause in the first 175 years of its existence, and the first of these [Wilkerson v. Utah in 1879] came almost 100 years after the Bill of Rights was ratified” (664). But as time progressed, the Court became more invested in and familiar with Eighth Amendment cases, making increasingly pronounced changes to the extent of its Constitutional reach.

In Wilkerson v. Utah, the plaintiff “was legally charged with the wilful, malicious, and premeditated murder of William Baxter” (99 U.S. 130 at 130). He did not deny that he had committed the crime, but sought to avoid the death penalty for doing so. Wilkerson argued that Utah’s use of firing squads to mete out the death penalty violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Court disagreed, citing the supremacy of states’ rights in determining the methods utilized for purposes of capital punishment. On the Court’s view, the states legislators were responsible for deciding the pragmatic matters, such as legal process and methodology, for the purposes of capital punishment.

The Court, however, did make one key distinction about types of punishments. The Court stated that “difficulty 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,” nonetheless “it is safe to affirm that punishments of torture…are forbidden by that amendment to the Constitution” (99 U.S. 130 at 136). An immediate consequence of the Court’s ruling was a considerable decrease in the scope and degree of punishments that could be legally utilized on criminals since even torturous punishments were allowed prior to this case. Wilkerson v. Utah was the Court’s first interaction with the Cruel and Unusual Punishments Clause that would initiate the development of the ESD Doctrine.

Building upon precedent in 1910, the Supreme Court ruled on the case of Weems v. United States. Weems was a United States Coast Guard official who was convicted of falsifying legal documents. His punishment was fifteen years of imprisonment that would include a significant amount of “hard and painful labor,” wherein Weems was forced to “always carry a chain at the ankle, hanging from the wrists,” and he was not permitted to receive any “assistance whatsoever from without the institution” (217 U.S. 349). Moreover, he was deprived of all of his rights as a parent, as a husband/spouse, and as a private property owner. In addition, Weems was prohibited from voting in any local, state, or federal elections and from holding public office. Finally, Weems was subject to a lifetime of law enforcement surveillance (217 U.S. 349).

The majority, in striking down Weems’ sentence, focused on a “graphic description of Weems’ sentence and of the law under which it was imposed” (217 U.S. 349). In the ruling, the majority noted that Weems being extensively punished since he “may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him, and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty” (217 U.S. 349). The Court then noted that “Such penalties for such offenses amaze those who formed their conception [of justice from the practices of] the American commonwealths, [that] believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense” (217 U.S. 349).

While not finding any substantial precedent which dealt with the specific types of punishments imposed on Weems, the majority still concluded that those punishments were “cruel in [their] excess of imprisonment and that which accompanies and follows imprisonment [and that they were] unusual in character” (217 U.S. 349).

This case was significant to the establishment of the ESD Doctrine because it incorporated a proportionality requirement to criminal punishments. One scholar states that in determining the proportionality of a punishment “[one must consider] the seriousness of the harm caused, the offender’s intentions, and mitigating and/or aggravating circumstances” (Chudacoff 19). All of these elements must be carefully assessed in order to avoid inflicting disproportionate punishment on individuals, a view that the Court defend with its opinion; this proportionality requirement will be revisited in a later section.

With both Wilkerson v. Utah and Weems v. United States established as precedents, the ESD Doctrine was crystallized in 1958 with the Court’s ruling in Trop v. Dulles. Albert Trop was born as a citizen of the United States. While he was serving as a private in the U.S. Army during World War II, he deserted his military post in Morocco. The following day he had a change of heart and turned himself in. Trop was then taken back to his military base in Morocco, court-martialed and was found guilty. He was then sentenced to the punishment of three years of hard labor, forfeiture of military pay, and a dishonorable discharge from the US military.

A few years later, Trop applied for a US passport but was denied. His denial was based on the Nationality Act of 1940 which prohibited members of the US military who had deserted from receiving a passport. The Nationality Act of 1940 not only held that these individuals could not receive a passport but also that they would lose their citizenship and all the rights and freedoms contained therein. Trop filed suit in hopes of acquiring a declaratory judgment that he was a US citizen.

The Court ruled in favor of Trop, finding that “denationalization as a punishment is barred by the Eighth Amendment” because it is “a form of punishment more primitive than torture” and it inflicts the “total destruction of the individual’s status in organized society” (356 U.S. 86 at 101). The majority also held that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (356 U.S. 86 at 101).

The Court has, through these cases, moved away from a purely textual interpretation of the Cruel and Unusual Punishments Clause towards one that would allow the justices to have more of an influence on contemporary public policy. The ESD Doctrine thus provides the Supreme Court with a modified role within the United States government, blurring the line between the legislature and the judiciary.

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