(by Stephen Wermiel) " ... [T]he meaning of the Eighth Amendment’s prohibition on inflicting “cruel and unusual punishment” occupies a considerable amount of the Supreme Court’s time and often divides the Justices over the basic question of how to interpret the language of the Constitution.
The Court’s latest challenge is to determine whether it is “cruel and unusual punishment” to sentence a fourteen-year-old who has been convicted of murder to life in prison without the possibility of parole. This issue provides us with an opportunity to think about numerous different facets of what the Justices do.
For example, the issue illustrates how the Court often engages in incremental decision-making, limited to the circumstances of each case, one step at a time. Six years ago, in Roper v. Simmons (2005), the Court held that defendants who commit crimes when they are under the age of eighteen may not be subjected to the death penalty. And the Court ruled just last year in Graham v. Florida (2010) that a life sentence without possibility of parole for a juvenile is unconstitutional when it is imposed for a crime which did not involve murder.
On Monday, the Court agreed to consider yet another related question: whether the Eighth Amendment prohibits sentences of life without parole for juveniles convicted of murder...
Perhaps there is no more important – and divisive – role for the Justices than figuring out how to interpret for today’s world the meaning of phrases written for a very different world more than two hundred years ago. Does the phrase “cruel and unusual punishment,” written in 1789 and ratified as part of the Bill of Rights in 1791, have a fixed, readily understood, and universally shared meaning for today’s world? Or must those words be understood and interpreted as they were in 1791? Those questions continue to fracture the Justices.
In 1958, then-Chief Justice Earl Warren established what many consider a benchmark for understanding that phrase, writing in Trop v. Dulles that the measure of what is cruel and unusual punishment should be whether a practice violates “evolving standards of decency that mark the progress of a maturing society.” Warren’s formulation clearly contemplated that the meaning of the Eighth Amendment would change over time as society’s views on different criminal sanctions change..."
