Over the summer, Judge Joshua Divine of the U.S. District Court for the Eastern District of Missouri issued an unusual (to put it mildly) “sentencing opinion.” The defendant in the case pleaded guilty to receiving child sexual abuse material (the allegations were that he had engaged in sexual acts with a 13-year-old girl and had explicit pictures of her on his phone). Divine sentenced him to the statutory maximum of 20 years’ imprisonment.
Along with the sentence, Divine issued an “opinion to explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children.” Putting aside the propriety of a federal judge issuing what amounts to an advisory opinion on potential paths to pursuing the death penalty, Divine’s opinion perhaps portends something broader about what it means to affix constitutional doctrines to prevailing social norms.
To understand this point, it’s important to start with the Supreme Court precedent that Divine believes no longer controls.
The operative text of the Eighth Amendment protects against “cruel and unusual punishments.” In the 1958 decision Trop v. Dulles, the court, in an opinion by Chief Justice Earl Warren, held that this constitutional clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
In 2008, the Supreme Court decided Kennedy v. Louisiana, which asked whether the Eighth Amendment prohibits the death penalty “for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.” Kennedy applied the “evolving standards of decency” standard to find that the Eighth Amendment does indeed forbid the imposition of the death penalty for such an act. In so holding, the court explained that the Eighth Amendment’s protections are “determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.’” The court in Kennedy then held that there was a “national consensus against capital punishment” for that offense. Specifically, at the time the Kennedy decision was issued, “no individual ha[d] been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense ha[d] been conducted since 1963.”
When Kennedy reaffirmed the evolving standards of decency standard, it did so under the assumption that the standard would be flexible to meet the norms of a “maturing society.” Under the doctrine, Eighth Amendment protections “change as the basic mores of society change.”
The court seemed to assume when it adopted the evolving standards of decency framework that society’s values would only evolve one way – in favor of “restraint in the application of capital punishment.”
But does that assumption about society actually hold? And if not, what does that mean for Eighth Amendment jurisprudence more broadly?
As Divine noted, a lot has happened since Kennedy was decided. In the past three years alone, “at least six States enacted new legislation permitting capital punishment for the crime of child rape,” which is slightly under a quarter of all states that still allow for capital punishment. And this number does not include states that have similar laws on the books that have not been enforced post-Kennedy. Given this change, and, additionally, according to Divine, the “extraordinary increases in crimes against children, plus paradigm changes in the legal and technological landscape,” he concluded that “policymakers and prosecutors may determine that the most decent thing is to impose the most serious penalty on those who harm the most innocent.” In other words, Divine believes that society has evolved in favor of extending capital punishment beyond its current bounds.
The sentiment underlying Divine’s opinion raises important questions that reach far beyond the issue of capital punishment for the sexual assault of children: What happens when society evolves (or, as law professor Alexandra Klein would say, devolves) in a more punitive direction? Do Eighth Amendment protections wane accordingly?
To be sure, punitive impulses seem to be on the rise in various ways that implicate the Eighth Amendment. For example, last year saw more executions in the United States than any year in close to two decades. Some states and the federal government are returning to the use of firing squads and experimenting with death by nitrogen gas. President Donald Trump has repeatedly called for the death penalty for drug dealers, and urged state lawmakers to consider new legislation to that effect. Beyond capital punishment, states are debating castrating people who commit sex crimes. The government has sought to require incarcerated transgender women to be imprisoned with men and to severely limit their health care. The president has proposed reopening Alcatraz. And the government has sent immigrants to inhumane prisons across the world. If “decency” is the linchpin for Eighth Amendment protections, the country’s current mood bodes poorly for efforts to prevent punishments that are cruel.
The irony is that for decades, conservative justices complained of the evolving standards of decency test as a relic of the Warren Court. In their view, the test not only departed from the original meaning of the Eighth Amendment, but it was too malleable and too dependent on judges’ own sensibilities – a license to write liberal policy preferences into the Constitution. Yet, if Divine’s approach to evolving decency holds, the doctrine they have long derided could become the vehicle for more punitive results with the upshot of not having to formally overrule decades of precedent.
When the Warren Court gave us the “evolving standards of decency” test, it contemplated a society that would mature toward leniency. For progressives and death penalty abolitionists who long embraced the standard, the problem is not its malleability, but its wishful conflating of evolution with the exercise of punitive restraint. It may be the case that a constitutional doctrine built around society’s capacity to become more decent must also reckon with the possibility that society can become less so.
