Federal Judge Questions ‘Evolving Standards’ Test for Cruel and Unusual Punishment

Source: reason.com Feb 2024 Issue

A federal circuit judge wants the Supreme Court to scrap a longstanding test for determining what is cruel and unusual punishment. In an October speech to the Federalist Society, Reuters reported, Judge Thomas Hardiman, appointed by President George W. Bush to the Court of Appeals for the 3rd Circuit, advocated a “return to the text and original meaning of the Eighth Amendment” and an end to the “evolving standards of decency” test created by the Supreme Court in the 1950s.

In 1958, the Supreme Court ruled that stripping someone’s citizenship for committing a crime violated the Eighth Amendment. Supreme Court Chief Justice Earl Warren wrote that, to determine what constitutes cruel or unusual, the Court “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” That test has since been used by liberal Supreme Court majorities to strike down death penalty protocols, ban capital sentences for crimes that did not result in death, and outlaw death sentences for offenses committed as a minor.

Hardiman called the test a “contrived ratchet” that has fueled a “runaway train of elastic constitutionalism.”

“Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments,” he said. “The only constant is that more and more laws adopted by the people’s representatives have been nullified.”

Hardiman isn’t alone in his contempt for the test and its offspring. In May, Florida Gov. Ron DeSantis signed a bill into law allowing the death penalty for child rape. The law is unconstitutional under current precedent, but the Republican governor is attempting to tee up a case for the Supreme Court’s current conservative majority to reconsider that.

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So this judge is suggesting that we should avoid “evolving standards of decency”? We should return to witch burning perhaps? That was one of America’s first victims to this idea.

Return to the text… As if this idea ignores the text? How? It simply attempts to apply modern interpretations of decency to determine what is cruel and Unusual.

For…people…like this, there is no evolution, nor decency. There is only eliminating those that don’t deserve to live in their Reich. Homogeny through elimination, the standard Reich policy.

Here’s a fun idea to scare the hell out of you… Combined what this…person…is talking about, with Florida Judicial Murder agenda, and that “Anti-Groomer” law in Ohio. Then remember that the…people…this…person…is talking to are exactly the kind of, “Reasonable people” that will determine if somebody needs to be charged and convicted of “Grooming”.

Scared yet? Did I mention that all who are convicted of “Grooming” will be, I presume, Conclusively Presumed to have successfully “Groomed” as many other children as is needed to justify… whatever they want?

How about now?

I’d like to see Judge Hardiman spend a a year or two in solitary confinement and then have him tell me to my face that such treatment of prisoners is not an Eighth Amendment violation. This idiot has no conception of the hell that prisoners endure in jails and prison.

About what I’d expect from a George W. Bush appointee!

This guy was up for SCOTUS appointment twice and have to wonder if he is booking for it again (third time is a charm?) with this nonsense or is he poking them because he did not make it?

So is this judge basically saying that nothing is off the tables as long as it’s not the defunct “Spanish Inquisition” of torture? If Texas wants to start applying capital punishment for theft that’s fine?

Hmmm… Wants to make a return to the plain language of the Law. To get rid of the SCOTUS-created test that is currently used to interpret the Eighth Amendment… Yet, shows no concern for the fact that SCOTUS decided to re-invent the definition of Article I, Section 9, Clause 3: “No Bill of Attainder or ex post facto Law shall be passed”…

“No” means no! Just not according to SCOTUS!

Surprise, surprise, the Party of Cruelty and its stuffed-court wants to ditch that whole “evolving standard” inconvenience and revert to an “originalist” interpretation in which the only possible concern can be with following procedures, dotting I’s and crossing T’s. The cruelty is the point, after all. Why would they want to proscribe it? The more cruel, the better it makes them feel. Not that they’re consistent about “originalism,” of course, it’s “originalism for me but not for thee.” The sheer, transparent and brazen hypocrisy that has overtaken SCOTUS is breathtaking. We now have undeclared payments being made to Justices by political operatives, after all. Trumpism has opened the door to open, shameless treason. All I can say is, if we think this is bad – and it is – it can get much, much worse. Be sure to vote.

The Federalist Society is nothing but a right wing conservative racist organization that hasn’t yet died out. If it was up to them, we would still have “state’s rights” and racial segregation in parts of the county. We have to be vigilant about the new generation of “federalists” like Thomas Hardiman. His opinions are irrelevant in a modern society

If Judge Hardiman only understood what he is touting in his writing, he’d think twice (or hopefully would) if it was someone close to him who suffered the same. If we rid ourselves of the evolving standards to what a Judge or Justice should be in this country, which I wonder at times if we have, would we be better off? Read on and research online if you don’t believe this is what has happened overseas today…

An Iranian woman Roya Heshmati was lashed 74 times for refusing to wear the hijab.

She writes:

“This morning, I contacted my lawyer about the execution of the sentences, and together we went to the courthouse of District 7. However, we were turned away at the entrance gate, and I removed my hijab as we went to the execution branch.

“Put on your scarf to avoid trouble,” The official in the branch said, but I replied, “I came for this whipping, I won’t put it on.” They called somewhere, and the officer in charge of the execution came upstairs, saying, “Put on your hijab and follow me.” I said, “I won’t put it on.” He said, “Then what will you do? I’ll whip you in a way that you’ll know where you are, and I’ll open a new file for you, another seventy-four lashes for you to be our guest again.”

I still didn’t put it on. We went downstairs, and a few other guys were brought for drinking alcohol.
“Won’t you put it on?” The man in charge repeated with authority.I didn’t.

Two veiled women came and veiled me repeatedly, but each time I took the scarf back off. From behind, they handcuffed me and put the scarf on me and I unveiled myself several times.

We went down to the basement; there was a room at the end with an iron bed. It had iron handcuffs and ankle cuffs on both sides of the bed, attached by an iron structure resembling an easel a little closer to this side. It was a medieval torture room. The judge asked, “Lady, are you okay? Do you have any problems?” As if I didn’t exist, I didn’t answer. He said, “Lady, I’m with you,” but I didn’t respond.

The man in charge of the execution said, “Bring your coat.” I hung my coat and scarf on the iron structure of the torture chamber. He said, “Put on your scarf.” I replied, “I won’t. Place your Quran under your armpit, and then strike.” The woman came and said, “Please, don’t be stubborn,” and pulled the scarf over my head.

The judge said, “Don’t hit too hard.” The man began to hit my shoulders, back, buttocks, and calves with determination. I lost count of the lashes and whispered: In the name of woman, in the name of life:

The garment of bondage has been torn.
The black night of our captivity shall become dawn, all the fresh wounds are healed, all the shackles are turned into axes.

It finished, and we went outside. I didn’t let them think that I suffered from the pain. We went upstairs in front of the judge. I uncovered my head at the door. The woman said, “Please, put it on.” I didn’t put it on, and she pulled the scarf over my head again in the judge’s room. He said, “We are not happy with this matter ourselves, but it’s a sentence, and it must be executed.”

I didn’t respond.
He said, “If you want to live differently, you can be outside the country.”
I said, “This country is for everyone.”
He said, “Yes, but you must respect the law.”

I said, “Let the law do its job; we will continue our resistance.” We came out of the room, and I threw my scarf back off.

Last edited 6 months ago by TS

Cruel and unusual is when the punishment or post conviction conditions you are being subjected to are continuously evolving and being expanded and compounded well after the fact.

Judge Hardiman needs to do more research on his topic starting here at the National Constitution Center and then specifically to the Eighth Amendment

The way I see it, is if we were to roll back to the original interpretation of cruel and unusual punishment, everything about the registry would be ruled cruel and unusual. That level of invasion into a persons life and privacy, and the unending punishment and humiliation all easily fall into that classification. Especially if we were to roll back to the 1950’s or 60’s view, this kind of absurdity that is the registry would never have flown back then, people still believed the sanctity of the family unit, and after you did your time, you were square with the law and could start over with a clean slate. Background checks would have been seen an invasions of privacy