Washington Law Review


The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role

October 01, 2018 | 93 Wash. L. Rev. 1397

Abstract:  Within Eighth Amendment doctrine, legislators are arbiters of contemporary
values. The United States Supreme Court looks closely to state and federal death penalty
legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative
debates preceding the recent passage of bills abolishing the death penalty in Connecticut,
Illinois, and Nebraska. We categorized all statements according to their position on the death
penalty, their subject matter, and any references they made to the courts and Constitution. We also collected basic facts about the legislators, including about political party, race, education, and profession. We present our quantitative and qualitative findings here.

Building upon these findings, we critically examine the Court’s use of legislation as an
“objective indicator” of “evolving standards of decency.” We identify disconnects between
legislative outcomes and community “standards of decency,” and we analyze legislators’
understanding of their constitutional significance and why their level of self-awareness may
matter. Finally, we consider how legislative debates—rather than outcomes alone—might
provide insights into contemporary values. In particular, the strong concern we observed over
wrongful execution may support more robust Eighth Amendment protections for those
claiming actual innocence.

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