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The Hollowing of the Eighth Amendment

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Demonstrators protesting the death penalty outside the Supreme Court after the justices allowed the execution of Gary Gilmore to proceed, Washington, D.C., 1977

In 1991 an inmate named Dee Farmer sued prison officials at the US Penitentiary in Terre Haute, Indiana, for violating the Eighth Amendment’s prohibition against cruel and unusual punishment. Penitentiary staff had placed Farmer, a Black transgender woman incarcerated for credit card fraud, with male prisoners, one of whom had beaten and raped her. Representing herself without counsel before lower courts, Farmer argued that her jailers had knowingly confined her in a ward where she was particularly vulnerable to sexual violence.

Her case reached the Supreme Court in 1994. In a majority opinion joined by all but one justice, the Court held that Farmer’s lawsuit could proceed and remanded the case to lower courts to apply the “Eighth Amendment principles.” Those principles included affirmative duties (an obligation to “provide humane conditions of confinement” and “take reasonable measures to guarantee the safety of the inmates”) as well as negative restraints (a bar on using “excessive physical force against prisoners”). Reiterating existing doctrine, the majority opinion underscored that these principles were not fixed but rather grow with what the Court, in a 1958 case, had called the country’s “evolving standards of decency.” What counts as cruel and unusual punishment, in other words, needs to reflect contemporary values and practices.

The sole justice who refused to join the majority opinion was Clarence Thomas, then less than three years into his tenure on the Court. His opinion began on a startling note: “Prisons are necessarily dangerous places; they house society’s most antisocial and violent people in close proximity with one another.” He went on to quote approvingly from a lower court opinion arguing that “some level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do…unless all prisoners are locked in their cells twenty-four hours a day and sedated.”

Then Thomas proceeded to the source of his objection. For nearly two decades, he wrote, “the Court’s prison condition jurisprudence has been guided, not by the text of the Constitution, but rather by ‘evolving standards of decency that mark the progress of a maturing society.’ I continue to doubt the legitimacy of that mode of constitutional decisionmaking.” He hoped that the Court would someday “reconsider” the “dubious precedents” behind those standards “in light of the constitutional text and history.”

In subsequent cases Thomas pressed his revisionist case against various applications of the “evolving standards of decency” criterion, but for twenty-five years the Court declined to follow his lead. It used the evolving standards of decency to extend new constitutional protections to people with intellectual disabilities, juvenile defendants, and others. But his ideas have found purchase with more recent Republican appointees. In 2018 a majority of the Court—reshaped by President Donald Trump, who replaced Justice Anthony Kennedy with Justice Brett Kavanaugh—started formalizing Thomas’s approach in their opinions, most consequentially in a case called Bucklew v. Precythe (2019), reorienting the Eighth Amendment around a “text and history” lodestar that bypasses the evolving standards of decency test.

As the Court’s conservatives hollow out the evolving standards, they’ve also undercut them through sheer disuse. Since the votes of the three liberal justices are not enough to put cases on the calendar, very few prisoners alleging cruel and unusual punishment have convinced the Court to even hear their appeals. In the few Eighth Amendment cases the Court has decided to hear, the Republican appointees have ignored the evolving standards of decency. Thomas’s originalist campaign has come close to triumphing, at great cost to the more than a million Americans behind bars.

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The Eighth Amendment reads, in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Rather than proscribe a list of specific punishments, the clause leaves it to each generation to decide, based on their own practices and values, what punishments count as “cruel” and “unusual.” This elegant ambiguity has always been a problem for originalists: it contradicts their idée fixe that constitutional meaning was frozen at the founding era. Making 1787 the standard for assessing what is “cruel and unusual,” as originalists propose, is untenable: governments in the colonial and founding eras celebrated gruesome spectacles of punishment, including branding and whipping, and American prisons flogged and waterboarded inmates for minor disciplinary infractions well into the nineteenth century.

For this reason, the “history and tradition” of interpreting the clause is decidedly not originalist. Generations of judges have agreed that the phrase should be understood dynamically, by considering contemporary norms and standards. In 1910, for example, the Supreme Court recognized in Weems v. United States that the “progressive” Eighth Amendment “does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice.”

Nearly half a century later, in Trop v. Dulles (1958), the Warren Court drew on Weems to conclude that “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” When Thomas and other originalists describe the “evolving standards of decency” standard as the invention of midcentury liberal justices, they ignore that the doctrine’s antecedents have had a part in Eighth Amendment jurisprudence for more than a century. Even after President Nixon’s appointments ended the Warren Court revolution, decisive majorities on the Court applied it.

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Thomas began his campaign against the evolving standards of decency just four months after being sworn in, when the Court heard the case of Keith Hudson, a Black inmate at the infamous Angola prison in Louisiana. Hudson had sued the prison guards who shackled, kicked, and punched him—an attack that left him with bruises, facial swelling, loosened teeth, a split lip, a broken dental plate, and psychological trauma. Citing the evolving standards of decency, seven justices ruled in Hudson v. McMillian (1992) that the beatings violated the Eighth Amendment. Two disagreed: Thomas and Justice Antonin Scalia.

In his dissent, Thomas claimed that the guards caused Hudson “only insignificant harm.” Using such force on a prisoner might be “immoral” or “criminal,” he argued, but it does not constitute “cruel and unusual punishment.” Rather than rely on the evolving standards of decency, he turned to history. “Surely prison was not a more congenial place in the early years of the Republic than it is today,” he wrote, “nor were our judges and commentators so naive as to be unaware of the often harsh conditions of prison life.” But “they simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.”

The dissent was Thomas’s first originalist opinion on the high court. It revealed that he and Scalia had deep analytical and methodological differences with their seven colleagues. By flouting decades of case law, it showed considerable hubris, especially from a justice less than a year into his tenure. In her majority opinion Justice Sandra Day O’Connor argued that Thomas had disregarded both “the body of this Court’s Eighth Amendment jurisprudence” and “the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment.” Chief Justice William Rehnquist, Justice Byron White, and Justice Kennedy—none of whom were particularly sympathetic to criminal defendants—joined her without qualification. For Americans committed to prisoners’ rights, meanwhile, Thomas’s callousness toward Hudson’s injuries was ominous. The dissent displayed the coldness, severity, and ambition that would come to define his approach to the Eighth Amendment.

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Supreme Court Justices Scalia, Ginsburg, Stevens, Souter, Rehnquist, Thomas, O’Connor, Breyer, and Kennedy posing for a formal portrait, 1994

Thomas also clashed with his Republican backers, who had acquiesced to a dynamic interpretation of the Eighth Amendment. The Bush Administration had urged the Court to rule for Hudson based on existing law. So had the Bush-appointed deputy solicitor general who argued on Hudson’s behalf, future Chief Justice John Roberts. Even the Republican Senator Arlen Specter—who, at Thomas’s confirmation hearing, had been one of his chief apologists and a snarling inquisitor of Anita Hill—confessed that he was “disappointed” in him.

And yet Thomas doubled down. Year after year, he returned to the themes and even the same words of his Hudson dissent. A decade later, for example, in a case called Hope v. Pelzer, the Court found “obvious cruelty” in the conduct of prison guards who had handcuffed a shirtless Alabama inmate to a hitching post for seven hours in the summer sun and denied him water and bathroom breaks. In his dissent, Thomas expressed sympathy for the guards. They had, he claimed, restrained the prisoner “for a legitimate penological purpose: encouraging his compliance with prison rules while out on work duty.” In a footnote he disclosed that he was still convinced that conditions of imprisonment failed to count as “punishment” in the first place, although the Court’s precedents forced him to treat them as such for the time being. “I remain open,” he wrote, “to overruling our dubious expansion of the Eighth Amendment in an appropriate case.”

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To liberal Court observers at the time, Thomas’s dissents seemed quixotic. But as they accumulated, they gradually anesthetized legal scholars and journalists to once-shocking views about the inhumane treatment the state could inflict on incarcerated people. (Thomas’s dissent in Hudson was met with a firestorm; his dissent in Hope was not.) Then, more than a decade after his opinion in Hudson, Thomas started gaining supporters on the Court. In 2005 President George W. Bush replaced two members of the Hudson majority opinion—Rehnquist and O’Connor—with Roberts and Justice Samuel Alito. Though both had differences with Thomas, it was soon clear that they shared his cramped reading of the Eighth Amendment.

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Consider the 2008 case Baze v. Rees. Splintering across seven opinions, the Court ruled that a lethal injection protocol based on a multi-drug cocktail did not violate the Eighth Amendment. Three liberal justices (John Paul Stevens, Ruth Bader Ginsburg, and David Souter) invoked the evolving standards of decency in opinions they wrote or joined. Thomas, joined by Scalia, ridiculed the evolving standards—“it appears the Constitution is ‘evolving’ even faster than I suspected”—and appealed instead to the “original understanding of the Cruel and Unusual Punishments Clause.”

Neither Alito nor Roberts mentioned the evolving standards or the original understanding in their opinions, but they quietly embraced static interpretations of the Eighth Amendment that are incompatible with the evolving standards. An earlier case, Gregg v. Georgia, had “settled” that “capital punishment is constitutional,” Roberts wrote, subtly ruling out the possibility that it could become unconstitutional over time. “It necessarily follows that there must be a means of carrying it out.” This syllogism inverts the logic of the evolving standards test, which considers how, practically speaking, punishment is administered in the present. If the state only has access to a barbaric execution method, or if a method previously deemed acceptable comes to be seen as cruel or unusual, the lack of alternatives does not render that method acceptable.

That same year, a majority of the Court in Kennedy v. Louisiana applied the evolving standards of decency to bar states from imposing the death penalty on child rapists. Thomas and Scalia, unsurprisingly, dissented. But they were now joined by Roberts and Alito, who wrote the dissenting opinion, borrowing heavily from ones that Thomas had written in earlier cases. Even as he purported to reason from the evolving standards of decency, Alito claimed that the majority opinion was “not supported by the original meaning of the Eighth Amendment.” With barely veiled contempt, he wrote that the majority’s “conclusory references to ‘decency,’ ‘moderation,’ ‘restraint,’ ‘full progress,’ and ‘moral judgment’ are not enough,” even though these benchmarks were the binding legal test.

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In the years since Thomas joined the Court, public support for the death penalty has fallen and prisoners have secured new legislative protections from the federal government and many states. But America’s democratically unresponsive institutions have buttressed Thomas and his ideas. The three Supreme Court justices Trump appointed—nominated by a president who lost the popular vote and confirmed with thin majorities in a Senate structurally disconnected from popular will—secured a conservative supermajority insulated from an evolving society.

Just as Thomas had, Trump’s appointees wasted little time in targeting the evolving standards of decency. In 2018 the Court heard oral argument in Bucklew v. Precythe. Russell Bucklew was a death row inmate who suffered from a rare medical disease that created a significant risk of excruciating pain if he was executed by legal injection, the method with which Missouri planned to kill him. Citing Trop v. Dulles’s command that the Eighth Amendment’s “basic concept” is “nothing less than the dignity of man,” Bucklew argued that it would be “cruel and unusual” for the state to execute him with a method that could lead him to suffocate by choking on his own blood. In 2018 Justice Kennedy and the liberal justices stayed Bucklew’s execution. Then Kennedy retired, Trump replaced him with Kavanaugh, and a reconstituted Court allowed Bucklew’s execution to go forward. (There were, ultimately, no visible complications.) Justice Neil Gorsuch, a Trump appointee who replaced Scalia, wrote the 5–4 opinion, joined by Kavanaugh, Thomas, Roberts, and Alito.

Gorsuch’s opinion did not say the evolving standards of decency were no longer viable—in fact he made no mention of them—but that was its practical effect. He argued that Bucklew’s argument was “foreclosed by precedent” because it contradicted Roberts’s opinion in Baze, which Republican appointees had given controlling effect in a later case called Glossip v. Gross (2015). But it “fails for another independent reason,” he went on: “It is inconsistent with the original and historical understanding of the Eighth Amendment.”

In effect Gorsuch was substantively overturning precedent—in the form of decades of law recognizing the evolving standards of decency—without acknowledging doing so. An inquiry focused on the “original and historical understanding” is at war with “evolving standards.” The two approaches reason from different interpretive baselines and will lead to starkly different determinations about permissible punishments. By not harmonizing these competing approaches, Gorsuch achieved his ideological objectives while avoiding the attention and reputational damage of explicitly overturning Trop v. Dulles and its progeny.*

In the years since Bucklew, fervid Republican appointees on lower courts have used the case to substantively weaken the evolving standards of decency. Some claim that Bucklew already renounced them. In 2022, for example, Judge Chad Readler, a Trump-appointed appeals court judge in Ohio, turned to Bucklew to rule against Sheri Trozzi, an incarcerated woman who suffered a harrowing health emergency after being denied basic medical care. Trozzi repeatedly complained of intense abdominal pain; her jailers, who knew she had a history of ulcers, slow-walked getting her treatment. After eventually receiving surgery for a perforated ulcer, she sued her jailers for deliberate indifference, a claim similar to the one Farmer had brought decades earlier. Seizing on Gorsuch’s reasoning that “cruel and unusual” should be interpreted “as a reader at the time of the Eighth Amendment’s adoption would have understood those words,” Readler claimed that the evolving standards of decency had been “largely repudiated.” This past January, Judge Patrick Bumatay, a Trump-appointed appeals court judge in California, wrote that Bucklew required interpreting the Eighth Amendment’s scope through its “original and historical understanding.”

Others have coalesced around the notion that the evolving standards still stand in some form but should be ditched. In 2021 Trump’s reported runner-up for the Supreme Court seat that went to Gorsuch—Judge Thomas Hardiman—asked the Court to toss this “runaway train of elastic constitutionalism.” Four Republican appointees cosigned. (Further south, the right-wing supermajority of the Florida Supreme Court—packed with Republican apparatchiks by Governor Ron DeSantis—has discarded evolving standards in favor of an originalist approach.) Hardiman reiterated the call this past October, telling the Harvard Law School chapter of the Federalist Society that the Court should replace this “contrived ratchet” with a test based on “the text and original meaning of the Eighth Amendment.” The “only constant” result of the standards, he argued, “is that more and more laws adopted by the people’s representatives have been nullified” by judges exercising “unbounded discretion” in favor of prisoners and defendants.

Hardiman is no outlier. In a 2022 case called Grants Pass v. Johnson, the Ninth Circuit reaffirmed circuit precedent that it is “cruel and unusual” for the government to criminalize homeless people for sleeping outside on public property when they have no shelter to go to. The “proper interpretation of the Eighth Amendment,” the Ninth Circuit reiterated, “does not turn exclusively on standards from hundreds of years ago.” Fourteen Republican-appointed judges on the Ninth Circuit urged the Supreme Court to grant review of Grants Pass and reverse it. The Republican judges claimed that their colleagues had erred by not considering the amendment’s “text, history, and tradition.” For corroboration they cited Dobbs v. Jackson Women’s Health Organization, the Court’s originalist decision overturning Roe v. Wade, which, they claimed, established that “text, history, and tradition” was the proper “standard grounds for constitutional decisionmaking” concerning “cruel and unusual punishment.”

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Protesters sitting outside the Supreme Court during oral arguments over City of Grants Pass, Oregon v. Johnson, April 22, 2024

As a matter of black-letter law, they were wrong about the correct legal test, which remains the evolving standards of decency. Justice Alito’s opinion in Dobbs disclaims disturbing other rights and decisions; he wrote, preposterously, that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Yet the Republican appointees on the Ninth Circuit saw in Dobbs that the present Court prioritizes swift conservative change over formal legal rules. In eliminating the right to abortion, Dobbs took aim at all of the interpretive standards developed in more humane eras of law—including dynamic interpretation of the Eighth Amendment.

For this reason, last fall the Republican attorney generals of twenty states submitted an amicus brief to the Court in which they, too, advised the Court to use Grants Pass to finally get rid of the evolving standards of decency. Bucklew and Dobbs, they said, made it clear that the Court had “already” embraced an “interpretive course-correction” in its Eighth Amendment jurisprudence. The evolving standards did not, in the end, come up directly at the Grants Pass oral argument; the Republican appointees made it clear that they would rule against the homeless plaintiffs, but for now the scope of that opinion is indeterminate. Meanwhile a similar coalition of Republican attorney generals is impleading the Court to use Bucklew and Dobbs against the evolving standards in another case, Hamm v. Smith.

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Formal legal rulings are only half of the picture. Since Trump’s three appointees lurched the Court rightward, the conservatives have all but closed its doors to prisoners seeking relief from cruel and inhumane treatment. This pattern of indifference became clear in the final days of the Trump Administration, when, as David Cole noted in these pages, the Republican appointees broke with established practice to rush the federal executions of Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, Corey Johnson, and Dustin Higgs—even as many of their cases had serious pending legal issues, including Eighth Amendment ones. The Court’s standard process in such cases is to let the legal issues play out. Instead the conservative justices lifted lower courts’ stays on executions and acceded to unusual requests from the Trump Department of Justice to cut the Court’s normal deliberative timeline short. They offered no public explanation for their interventions, which helped guarantee that these people were put to death before Trump left office.

Since then, as the legal scholar Bernard Harcourt has put it, the “conservative justices have become the nation’s executioners.” With Trump out of office, they’ve helped expedite executions in Republican-run states. The conservative justices have refused to even hear death row inmates who didn’t have effective representation at their trials (Terence Andrus, Kevin Burns); who were convicted after prosecutors withheld evidence (David Brown, Davel Chinn) or engaged in illegal juror selection practices (Andre Thomas, Kristopher Love, Tony Clark, Dillon Compton); who had an illegally obtained confession shared with the jury (Kurt Michaels); who are intellectually disabled (Wesley Coonce); and who have a rare medical condition that renders standard methods of execution torturous (Ernest Johnson). In each of these cases liberal justices wrote scathing dissents calling out their colleagues’ abdications.

Unlike Dee Farmer or Keith Hudson, these death row inmates don’t get the spotlight afforded by oral arguments and reasoned opinions, let alone the scrutiny that can come with a full legal hearing. Yet Republican officials have taken note. The de facto abandonment of the Eighth Amendment has emboldened them to subject prisoners to degrading treatment. Last May DeSantis signed a law allowing the death penalty for child rapists—directly flouting Kennedy v. Louisiana and its evolving-standards rationale. This past January, the Court’s conservatives let Alabama use Kenneth Eugene Smith as a guinea pig for a novel method of killing via nitrogen gas after he survived the state’s first, botched execution attempt. The experiment went poorly; for minutes Smith shook and convulsed on the gurney. Alabama, however, has said that the execution was a success; it plans to use nitrogen gas to execute other inmates.

Prisoners not on death row have fared no better. The conservative justices have recently let prison officials deny exercise breaks to Michael Johnson, a mentally ill inmate confined at nearly all times to a tiny, poorly ventilated cell often caked in feces. They let Texas keep Dennis Hope in solitary confinement, where he has been caged for nearly three decades. They upheld sentencing juveniles like Brett Jones to life without parole, forever barring him and hundreds of young people like him from a chance at life outside.

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It now seems inevitable that Republican-appointed justices will purge the evolving standards of decency from America’s constitutional fabric. They may proceed on their current path, erasing them through stealth and silence. Or they may go down Hardiman’s, choosing explosive rupture. Either way abandoning the evolving standards will have far-reaching effects. Symbolically, it will end one of the most visible testaments to the fact that the Constitution is, in Justice Louis Brandeis’s words, a “living organism.” The evolving standards currently underpin legal protections for prohibitions that most Americans take for granted, including bans on executing the intellectually disabled, juveniles, and certain classes of defendants; sentencing juveniles who didn’t commit murder to life without parole; imposing grossly harsh punishments for minor crimes; disciplining prisoners with excessive force; and criminalizing drug addiction, homelessness, and poverty.

These basic protections would vanish from constitutional law if the Court interprets “cruel and unusual” by considering how “a reader at the time of the Eighth Amendment’s adoption would have understood those words.” This is not to say that founding-era punishments like the cropping and nailing of ears would return. But by looking to an era of the cropping and nailing of ears for answers in contemporary penology, courts would permit any punishment to which the modern state wants to subject prisoners. Worse yet could come. Trump, on the 2024 campaign trail, has vowed to expand the death penalty and unleash new terrors on prisoners and detained migrants.

Thomas would say that, by placing the certainties of original meaning over the vagaries of ethical deliberation, the Court that Trump remade no longer lets the normative values of judges usurp popular majoritarianism. But in constitutional law, justices can’t escape moral reasoning. They can only choose among competing values. Justices across the political spectrum once interpreted what counted as cruel and unusual by reasoning from decency and dignity. Today’s conservatives reason from something much bleaker: indifference to human suffering and respect for harsh punishment. The Court once took the indignities suffered by people like Dee Farmer and Keith Hudson seriously. Now it looks away.

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