Evolving Standards As a Judicial Mandate: Necessary Or Superfluous‪?‬

I. DEMOCRATIC EVOLUTION OF "STANDARDS OF DECENCY" IN CRIMINAL PUNISHMENT Judicial regulation of criminal punishment is fairly uncontroversial, although few have seriously considered how an alternative system, one in which the state legislatures and enacted statutes predominantly controlled the law of criminal punishment, would differ. (1) Upon comparison to the law of corporal punishment, an area controlled by the legislature, it appears that the public naturally uses a form of progressive civility without being forced to do so as judges compel in Eighth Amendment law. Some criminal punishments clearly fall within Eighth Amendment prohibitions, violating the Cruel and Unusual Punishments Clause; (2) certainly, courts should address and forbid such punishments. Whether other, less extreme punishments violate the clause, however, is more controversial. (3) The Supreme Court addressed many such punishments through its evolving standards of decency test. (4)