University of Arkansas at Little Rock Law Review


J. Blake Byrd

Document Type



The final clause of the Eighth Amendment is the source of this nation's prohibition on unconstitutional punishment. Today, the Supreme Court's evolving-standard on the prohibition on unconstitutional punishment has two steps: The Court (1) looks at objective indicia of societal consensus against a particular practice and (2) ultimately uses its independent judgment to analyze whether the punishment is proportional to the offender's mental state and category of crime. There is tension within the Court, however, because some members believe that the evolving-standards jurisprudence is mistaken, and they fervently reject a proportionality analysis.

The United States has a long history of executing juveniles, which the court ended in Court's Roper v. Simmons decision. In Roper, the Court held that the execution of offenders who were under eighteen at the time of their crime is unconstitutional under the Eighth Amendment's prohibition of "cruel and unusual punishment."

This note begins with the facts of Roper, and then it examines the history of the juvenile death penalty since colonial times. Also, the note addresses the origins of the Court's evolving-standards doctrine. Next, the note examines the cases that preceded the Roper decision by focusing on those cases in that the Court was asked to decide if the evolving standards of decency prohibited the execution of two different classes of offenders, the mentally retarded and juveniles. After an analysis of the Roper decision, the note concludes with a discussion regarding whether the evolving-standards test is an unprincipled method, or whether it is the best way to approach these types of Eighth Amendment claims.