Killing Them with Procedure: A New Cruel and Unusual Punishment?

Abstract:     
A major unresolved constitutional issue facing our penal system is whether there is a violation of the Eighth Amendment in light of the changes in the American tradition surrounding the death penalty. The problem is that we allow such prisoners to avail themselves to a plethora of procedure, which ultimately delays their punishment – death. A key issue then remains whether there is a violation of the Eighth Amendment because we are effectively, in many situations, giving death row inmates two sentences: death and a lengthy term of confinement in arguably the poorest and most stressful environment imaginable. If we are to have a death penalty, we must reconcile some of the major issues facing prisoners on death row in light of the Eighth Amendment and Supreme Court precedent. This Article also considers international viewpoints on this matter as persuasive evidence as to what humanity believes is a fair policy. The drafters of the Eighth Amendment may not have not foreseen this potential issue because prisoners who were sentenced to death were killed shortly after their punishment was imposed – making it appear more necessary that the Supreme Court rule on this issue and provide guidance to our penal system.

Number of Pages in PDF File: 5

Keywords: 8th Amendment, Eighth Amendment, Thompson v. McNeil, International, Death Penalty, Constitution, Death Row Syndrome

JEL Classification: K00, K10, K14

Accepted Paper Series