Wednesday, February 10, 2010


The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
Trop v. Dulles (1958), plurality opinion.

I just did a quick search of this blog. It appears that I've used the word "decency" in nine prior posts. The nine posts were on a variety of topics, and the word was used in different contexts. I was surprised to see that I've only quoted
Trop once.

I bring this up because of Bill Otis. In "
Condescension and the Death Penalty," a post on the Crime & Consequences blog yesterday, he began with a part of that quote.
What is the abolitionists' favorite phrase? "Evolving standards of decency." What this is used to suggest is that anyone whose thinking has "evolved," at least in the direction of "decency," opposes capital punishment. And that is almost certainly what Justice Brennan intended it to imply. Analysis, you see, is not required when your side's conclusion is built into the vocabulary of the discussion before it begins.
He then explained that when he debates the death penalty, he points out that
the death penalty was not only supported but used by Dwight Eisenhower, George Washington, FDR and Abraham Lincoln
Pretty heady company, he suggests, and asks his opponent in debate
whether he knows of any reason to believe that abolitionists know more, or are attuned to some Higher Morality, than these men.
It's a cheap rhetorical trick, of course, though I imagine that it might be effective if whoever he's debating has been insisting that the death penalty has always been wrong but that we've been too morally backward to know it until now. But for anyone who's actually trying for intellectual honesty, the trick won't work.

First Problem: Selective Quotation. There's a difference between "evolving standards of decency" and "the evolving standards of decency that mark the progress of a maturing society." It's not so much that the latter is clearer than the former. It's at least as squishily devoid of meaning. Rather, the latter makes a different (albeit mighty nebulous) point: As society matures (whatever that means), the measure of decency (not decency itself, its measure) changes, too.

As society changes, so do our needs. Moral verities remain, but they're applied differently. The New Testament Jesus brought mercy to the rigid justice of the Old Testament God. Sir Artegall, the embodiment of Justice in the fifth book of
The Faerie Queene, learns at the court of Mercilla (mercy) that justice without mercy is incomplete. This isn't relativism. It's a recognition that context matters. By ignoring part of the phrase from Trop, Otis manages to pervert its point.

Second Problem: Straw Men. Tossing up Eisenhower, Washington, Roosevelt, and Lincoln (and oddly listing them in that order) suggests a universality of view. Choose your moral exemplars and it's easy to claim that those who don't share a perspective with them can't measure up.

Same game: Jesus may not have opposed executions, but he insisted that the first stone be cast by one without sin. There's a moral exemplar. Surely Otis wouldn't claim that Eisenhower and the others were "attuned to some Higher Morality" than Jesus. So perhaps he'd claim that they had executioners who were themselves wholly pure and sinless? Nah.

Third Problem: Wrong Details. Otis may think he's got us all hornswoggled with that line about how Justice Brennan wrote "evolving standards of decency" as part of scheme to end the death penalty. But the facts just won't bear it out.

First of all, Trop isn't a capital case. It's about whether the Constitution permits a wartime deserter to stripped of citizenship. Second, Brennan didn't write those words. The plurality opinion, from which the phrase was taken, is Chief Justice Warren's. Brennan didn't even sign off on it. (Had he, it would have been a majority opinion.) Rather, writing for himself alone, Brennan never looked explicitly at the Eighth Amendment, focusing instead on general principles of delegated authority and, it seems, due process.

That much said, it's important to acknowledge that if Otis is wrong about evolving standards, Scalia is right. The whole idea of "meaning from the evolving standards of decency that mark the progress of a maturing society" is hopelessly muddled. I don't know what those standards are. I don't know what it means for a society to mature, unless it means that the median age is increasing, which doesn't seem to be the point.

The Court has given the formulation something like meaning (not meaning, but something like it) by declaring that you look to what most states are doing and to trends and things like that. It's nebulous, but something.

Still, the truth is that the "evolving standards of decency that mark the progress of a maturing society" are whatever five justices of the Supreme Court happen to declare them to be. That's hardly a basis on which to build. As Gertrude Stein didn't say of standards of decency, "There's no there there."

We can talk about morality. We should. But there's much to be said for speaking truly and accurately and with words that have actual content. Those evolving standards just don't.

Still, that's a quibble about one of those sloppy gnomic utterances Earl Warren put out for the Court 52 years ago.

Otis speaks today. He plants himself on the moral high ground through some combination of tricks, dishonesty, sloppiness, and ignorance. For the right words on Otis, we turn to Joseph Welch.
Have you no sense of decency, sir, at long last? Have you left no sense of decency?
Joseph Welch to Senator Joe McCarthy.

*It might be even more effective if Otis bothered to l


  1. Jeff,

    I assume you're also interested in this new, great (...) article by Bill Otis:



  2. Mr. Otis does tend to get just a little full of himself now doesn't he. B.O. has been characterized as "someone who trades in distractions". Pretty close don't you think? Ask a question you get half an answer, make a statement you get an out of context response. Challenge his blather point by point and his response is all over the place. Like trying to heard cats. Visit with Professor Doug at Sentencing Law & Policy for many examples but watch out that you don't trip over the "straw men".

    Old B.O throws up his "many years" as a Fed prosecutor as reason to assume that he is the resident expert on all things legal. With the recent exposure of the rash of prosecutorial misconduct and outright lying by the likes of Jason Ferguson in the Shelnutt case in Georgia, Kenneth Kohl, Blackwater, Broadcom and many, many others, I'm not sure that association is one to hold up as an example of how things should be done.

  3. Otis on innocence hasn't even the charm of a cheap rhetorical trick to liven it up.

    His argument: Abolitionists believed Roger Coleman was innocent. They were wrong. Therefore, they're wrong about everyone else and there's no reason to test DNA. That's just pathetic. Even the commentators (and the C&C commentators tend to be true believers in killing) think he's gone off the tracks.

    As for Coleman, I've pointed out before that (1) lots of people in Virginia said - back before the DNA was tested & proved his guilt - that he gave innocence a bad name, and (2) the only plausible explanation for Virginia's fighting so hard for so long to avoid testing the DNA is that the prosecutors and attorney general and governor there all thought Coleman was innocent and a test would prove it. They were wrong, too. But doubt was real.

  4. Mr. Gamso:

    You characterize my argument as follows: "Abolitionists believed Roger Coleman was innocent. They were wrong. Therefore, they're wrong about everyone else and there's no reason to test DNA."

    I said no such thing and you know it. What I actually said, in the second paragraph of my post (and thus one you could not possibly have missed), was this: "Since the death penalty is a human institution, it is fallible. No honest person could deny that it's possible an innocent man could be put to death, and that this would be a tragedy of the first order. (Of course so would a subsequent murder by a convict who legally could have been executed but wasn't -- something that has provably happened but that abolitionists routinely ignore)."

    But I didn't stop there. Approximately six hours before you posted your comment above, I said the following in the exact C&C comment section to which you advert:

    "No person with a conscience could be unconcerned with innocence. I am therefore all for DNA testing, so long as it is actually used to assess innocence -- and not as a dodge to run the clock, as late-blooming claims of factual innocence have been used for years by death row inmates.

    "I am also, incidentally, all for videotaping police interrogations (preferrably together with re-instating the regimen Congress adopted in 18 USC 3501, but which the Court effectively nullified in the Dickerson case). Videotaping is normally thought of as a defense-oriented suggestion. What it will actually show, however, is that the typical claim of coercive police behavior is almost always false. But one way or the other, videotaping, like DNA testing, is one more avenue to the truth, and therefore welcome in my eyes, let the chips fall where they may.

    "I didn't state, and don't believe, that the Innocence Project is a 'fraud.' It has a distinct bias, and as you say is prone to overstatement, but that is a different matter. I did say that the Coleman innocence campaign was a fraud. I don't think there's any other way to characterize the bitter and acerbic (and false) charges made against the police, prosecutor and jurors in that case (charges that were raised, I should add, not by Mr. Neufeld but by Centurian Ministries, which carried most of the water for Coleman).

    "Finally, I should note that, while my principal reason for supporting DNA testing is to get at the truth, there is a secondary, albeit related, reason. It is that DNA testing will solidify support for the death penalty in the long run. As you correctly point out, people are concerned that only the guilty should be punished. As DNA evidence increasingly reassures people that this is what's happening, the already high support for capital punishment is likely to increase."

    Either, Mr. Gamso, you failed to read what I wrote before you grossly mischaracterized it -- in which case you are careless at best -- or you did read it, in which case you are dishonest.

    Yet you sit at the keyboard lectuing OTHERS about decency.

    Bill Otis
    Guest Blogger
    Crime and Consequences

    P.S. It would be interesting to know whether you think a prison sentence would be proportionate justice for the crime described in this link,

  5. Mr. Otis,

    To the P.S. first. The crime (really crimes) described in the P-G story are horrific. I don't have any idea what "proportionate justice" is nor much sense of how to measure it. There are those, I've represented some, for whom a lifetime in prison is a more daunting, more horrifying prospect than death. Is it "proportionate" to mete out the desired punishment? I don't know how to answer that.

    Nor am I convinced that proportion is the final measure of how we should punish. If it were, we should be torturing to death, a point I've made in a number of posts.

    Regardless, my complaint with the death penalty is not that it's never deserved. I don't doubt that there are people who deserve killing. I just don't think we should be in the business of killing them. I'd be happy to discuss/debate that with you another time in another forum, but if you read through the various posts on the blog you should get at least some sense of the reasons.

    As for your substantive comments. I think I actually offered a pretty fair characterization, allowing for a slight bit (and only a slight one) of hyperbole of your position in the post itself. Your second paragraph, I'm sorry, suggests a merely theoretical, not a realistic, possibility of executing a factually innocent person. If if can happen only in theory, it's not an issue worth pursuing.

    I'll take the mea culpa on your comment. I read the first, from "federalist," and ran with that. I should have read your reply before writing. I didn't. I deserve to be called on the carpet for it.

    But now let's take the next step. If you're "all for DNA testing," as long as it isn't a stall, then I take it you'd support an absolute right for everyone to have DNA testing done. And in fact would urge it to be done on every available sample for everyone in prison just so we can be sure.

    By the way, I think it's a virtual certainty that if we do all that DNA testing we'll find, as you suggest, that most prisoners for whom the testing is done will be shown to be guilty. The interesting questions - and ones we should all want to have answered - are what the percentages are, and how it is that the mistakes were made.

    With that information, we could do a better job learning to avoid those mistakes in the future and perhaps get some handle on which cases are worthy of serious reinvestigation despite the absence of testable biological material.