The Eighth Amendment and Evolving Standards of Decency
This paper will briefly discuss the standard for cruel and unusual punishment established in 1958 by the U.S. Supreme Court in Trop v. Dulles (356 U.S. 86). It will then analyze this standard as it relates to criminal punishment in the United States and discuss why the Court's ruling in Trop was expressed in broader terms than any other Eighth Amendment case since then.
Trop v. Dulles involved a plaintiff who had been convicted of desertion from the U.S. Army during World War Two and had been dishonorably discharged. In 1952, he sued the government when he was denied a passport on the grounds that he had lost his citizenship under the provisions of the Nationality Act. The lower courts ruled that the provisions at issue in the case were proper and effective, and that the plaintiff's conviction for desertion during wartime had cost him his citizenship. The Supreme Court, however, reversed, ruling that º 401(g) of the Nationality Act was unconstitutional since it was punitive in nature and violated the Eighth Amendment's protection against "cruel and unusual punishment."
The Nationality Act was not a criminal statute; instead, it delineated the boundaries of citizenship and provided grounds for deportation. The government argued that º 401(g) was a regulatory provision authorized by the war power of the Congress, and not a penal law (Trop, pp. 97). However, Chief Justice Earl Warren, writing for the majority, ruled that º 401(g) was penal in nature since it prescribed the consequences for a conviction of desertion during wartime. Even as a congressional exercise of war power, º 401(g) could only be treated as a penal law because it imposed "the sanction of denationalization for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power." In fact, Warren could find no other legitimate purpose for the provision (pp. ...