The obvious chief criticism that can be made against current Eight Amendment jurisprudence is the ambiguous nature of the "evolving standards of decency" established in Trop v. Dulles. Besides the fact that it is not self-evident and that reasonable people can disagree widely as to what those standards are or ought to be, it remains a puzzle why some classes of offenders are categorically barred from certain punishment while others must prove their lack of culpability during sentencing. To be sure, the Supreme Court has provided some guidance on the matter, but as I have discussed before the doctrine remains confused and unintelligible.
The next chapter of the evolving standards journey is a proposed bill in Indiana, which would bar capital punishment for any offender who has a severe mental illness. The proposed bill essentially requires a finding of insanity albeit with an added provision that a designated serious mental illness that impairs a defendant's ability to exercise rational judgment in relation to his conduct also qualifies for exemption from the death penalty. The enumerated serious mental disorders, which the statute defers defining to the American Psychiatric Association, includes schizophrenia, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.
To anyone paying attention the problems of the proposed bill are obvious. This is no more than a thinly veiled product's test for punishment that, if successfully enacted, would undoubtedly include vast numbers of defendants and substantial monies for mental health experts (who, by the way, cannot as a profession agree as to what constitutes a serious mental illness). Moreover, it is unclear that whatever characteristics people with serious mental illnesses have that qualifies them for reduced culpability under this evolving standard should not also apply with equal force to LWOP, lengthy prison sentences or incarceration whatsoever- a residual but fundamental problem more broadly with the evolving standards doctrine itself.
At the end of the day the issue revealed by this latest iteration of the evolving standards of decency doctrine is that it is at war with the tenets of Lockett and the notion of individual sentencing. On the one hand, we have a line of precedent that says juries are the ultimate arbiters of punishment decision making (Ring, Lockett) because they must make both a factual and moral determination regarding what is appropriate punishment for any individual defendant. On the other hand we have precedent and proposed legislation that suggests that juries are untrustworthy to make those decisions. The question that begs from modern Eighth Amendment jurisprudence is why do we have juries anyway?
The next chapter of the evolving standards journey is a proposed bill in Indiana, which would bar capital punishment for any offender who has a severe mental illness. The proposed bill essentially requires a finding of insanity albeit with an added provision that a designated serious mental illness that impairs a defendant's ability to exercise rational judgment in relation to his conduct also qualifies for exemption from the death penalty. The enumerated serious mental disorders, which the statute defers defining to the American Psychiatric Association, includes schizophrenia, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.
To anyone paying attention the problems of the proposed bill are obvious. This is no more than a thinly veiled product's test for punishment that, if successfully enacted, would undoubtedly include vast numbers of defendants and substantial monies for mental health experts (who, by the way, cannot as a profession agree as to what constitutes a serious mental illness). Moreover, it is unclear that whatever characteristics people with serious mental illnesses have that qualifies them for reduced culpability under this evolving standard should not also apply with equal force to LWOP, lengthy prison sentences or incarceration whatsoever- a residual but fundamental problem more broadly with the evolving standards doctrine itself.
At the end of the day the issue revealed by this latest iteration of the evolving standards of decency doctrine is that it is at war with the tenets of Lockett and the notion of individual sentencing. On the one hand, we have a line of precedent that says juries are the ultimate arbiters of punishment decision making (Ring, Lockett) because they must make both a factual and moral determination regarding what is appropriate punishment for any individual defendant. On the other hand we have precedent and proposed legislation that suggests that juries are untrustworthy to make those decisions. The question that begs from modern Eighth Amendment jurisprudence is why do we have juries anyway?
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