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

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dc.contributor.author Niven, David
dc.contributor.author Cover, Aliza Plener
dc.date.accessioned 2018-10-23T18:27:31Z
dc.date.available 2018-10-23T18:27:31Z
dc.date.issued 2018-10
dc.identifier.citation 93 Wash. L. Rev. 1397 (2018) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1838
dc.description Volume 93, no.3, October 2018 en_US
dc.description.abstract David Niven is an Associate Professor of Political Science at the University of Cincinnati (Ph.D., Ohio State University). Aliza Plener Cover is an Associate Professor of Law at the University of Idaho College of Law (J.D., Yale Law School; B.A., Yale College). 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. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Article en_US
dc.title The Arbiters of Decency: A Study of Legislators’ Eighth Amendment Role en_US
dc.type Article en_US
dc.rights.holder Copyright 2018 by Washington Law Review Association. en_US

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