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Selected Works of Dwight Aarons
Article
The Abolitionist's Dilemma: Establishing the Standards of Decency for the Evolving Standards of Decency
Pierce Law Review (2008)
  • Dwight Aarons, University of Tennessee College of Law
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Abstract
The evolving standard of decency test is at the heart of the constitutional regulation of the death penalty. From 1976 through 1989 the U.S. Supreme Court generally relied on six-factors to define the substantive limits of death eligibility. But in Atkins v. Virginia (2002) and Roper v. Simmons (2005) the Court seemed to change course. The precedential value of Atkins and Roper will depend on the Roberts Court's adherence to precedent. Nonetheless, the Court has some work to do to ensure that the evolving standard of decency test has meaningful content and enduring use.

Baze v. Rees, the pending challenge to lethal injection as a method of execution, may provide answers or at least insights to the answers. Methods of execution challenges are best characterized as methodology review cases. Consequently, the six factor test derived from the cases defining the substantive limits of death eligibility does not fully apply. Commentators and courts have promulgated standards that are a mix of several Eighth Amendment tests.

In formulating the proper test for assessing the constitutionality of a method of execution, there are several approaches the Court may take. It may adopt (1) an originalist approach; (2) rely on its previous methods of execution precedents; (3) apply the evolving standards of decency test; (4) apply an approach from the non-capital prisoner's right context or (5) attempt to reconcile Eighth Amendment law.

In raising the method of execution issue now, capital litigants may have gotten too far ahead of themselves and the law. Baze may underscore the need for death penalty abolitionists to reinstitute a coordinated national litigation campaign challenging the constitutionality of the death penalty.
Keywords
  • evolving standard of decency,
  • Eighth Amendment,
  • lethal injection,
  • Baze v. Rees
Disciplines
Publication Date
2008
Citation Information
Dwight Aarons. "The Abolitionist's Dilemma: Establishing the Standards of Decency for the Evolving Standards of Decency" Pierce Law Review Vol. 6 (2008)
Available at: http://works.bepress.com/dwight-aarons/1/