How Not to Be Wrong: The Power of Mathematical Thinking

by Jordan Ellenberg

Livermore’s nightmare came true; we do not now cut people’s ears off, even if they were totally asking for it, and what’s more, we hold that the Constitution forbids us from doing so. Eighth Amendment jurisprudence is now governed by the principle of “evolving standards of decency,” first articulated by the Court in Trop v. Dulles (1958), which holds that contemporary American norms, not the prevailing standards of August 1789, provide the standard of what is cruel and what unusual. That’s where public opinion comes in. In Penry, Justice Sandra Day O’Connor’s opinion held that opinion polls showing overwhelming public opposition to execution of mentally deficient criminals were not to be considered in the computation of “standards of decency.” To be considered by the court, public opinion would need to be codified by state lawmakers into legislation, which represented “the clearest and most reliable objective evidence of contemporary values.” In 1989, only two states, Georgia and Maryland, had made special provisions to prohibit execution of the mentally retarded. By 2002, the situation had changed, with such executions outlawed in many states; even the state legislature of Texas had passed such a law, though it was blocked from enactment by the governor’s veto.