Shocks the conscience

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.

United States

In United States law which describes whether or not the due process requirement of the Fifth 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". For example, a plaintiff sues the dry cleaner for damaging a shirt, where the shirt's pre-damage value is $1-$2 and at most would cost $50 to replace, but is awarded $1 million in damages. The award could be considered to "shock the conscience" and most likely would be overturned on appeal.

"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. Schmidt" (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. [Peter Hogg, "Constitutional Law of Canada". 2003 Student Ed., pages 991-992.]

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