Shocks the conscience
Encyclopedia
Shocks the conscience is a phrase used as a legal standard in the United States
and Canada
. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.
requirement of the Fourteenth Amendment to the United States Constitution
has been met. This term originally entered into case law with the decision for Rochin v. California
(1953). This balancing test
is often cited as having subsequently been used in a particularly subjective manner.
The term is also used in some jurisdictions as a means to determine whether a jury award is out of line with the underlying civil wrong; a jury award can be overturned on appeal if, by its amount relative to the underlying civil wrong, it "shocks the conscience".
"Shock the conscience" has also been used as a constitutional standard in discussing the issue of whether or not detainees can be tortured according to American law.
(1987) to determine whether extradition
would be a breach of fundamental justice
under the Canadian Charter of Rights and Freedoms
. A court may look at the justice system of another country, and disregarding "finicky" requirements of fundamental justice in Canada, may consider some potential punishments in other countries to be so outrageous that a person should not be put at risk by the extraditing government. The measure was used in United States v. Burns
(2001) to find that the possibility of execution would shock the conscience. Critics such as Professor Peter Hogg
have suggested that the use of this measure indicates courts have "enormous discretion," and he argues this is demonstrated by inconsistencies between what is considered shocking and what is considered cruel and unusual punishment
.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.
United States
In United States law which describes whether or not the due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
requirement of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
has been met. This term originally entered into case law with the decision for Rochin v. California
Rochin v. California
Rochin v. California, 342 U.S. 165 , was a case decided by the Supreme Court of the United States that added behavior that "shocks the conscience" into tests of what violates due process...
(1953). This balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
is often cited as having subsequently been used in a particularly subjective manner.
The term is also used in some jurisdictions as a means to determine whether a jury award is out of line with the underlying civil wrong; a jury award can be overturned on appeal if, by its amount relative to the underlying civil wrong, it "shocks the conscience".
"Shock the conscience" has also been used as a constitutional standard in discussing the issue of whether or not detainees can be tortured according to American law.
Canada
In Canada the phrase was adopted in the case Canada v. SchmidtCanada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
(1987) to determine whether extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
would be a breach of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. A court may look at the justice system of another country, and disregarding "finicky" requirements of fundamental justice in Canada, may consider some potential punishments in other countries to be so outrageous that a person should not be put at risk by the extraditing government. The measure was used in United States v. Burns
United States v. Burns
United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms...
(2001) to find that the possibility of execution would shock the conscience. Critics such as Professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
have suggested that the use of this measure indicates courts have "enormous discretion," and he argues this is demonstrated by inconsistencies between what is considered shocking and what is considered cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
.