Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause

Abstract:     
In this article, I argue that basic principles of tort and criminal doctrine compel the conclusion that botched executions performed under current execution protocols violate the Eight Amendment. Traditionally, Cruel and Unusual Punishment Clause analysis of execution methods has focused on a detailed factual recitation of evidence about their effect on the condemned. After canvassing this research, I focus instead on a more complicated theoretical problem - the question of how to assess the state's culpability for a concededly bad outcome that it caused but (arguably) did not specifically intend. In particular, I draw and expand on the growing body of scholarship dealing with the complex relationship between actions and mental states, and between probabilistic outcomes and moral culpability. By acknowledging and directly addressing this vexing problem, I provide a more analytically rigorous Eighth Amendment framework than has previously been applied in the death penalty context, challenge traditional defenses of painful executions at a theoretical rather than visceral level, and leave little room to argue that painful executions are immunized from Eighth Amendment review.

I conclude by proposing a remedial structure for responding to this ongoing string of constitutional violations. While acknowledging that few courts are likely to enjoin most modern execution methods, I suggest that a liability rule may present a more realistic alternative. Within the practical political confines of contemporary criminal justice, it offers perhaps the best chance for the right to a non-cruel execution to be vindicated by the formal legal ritual of constitutional challenge and social contrition.

Number of Pages in PDF File: 65

Keywords: execution, death penalty, capital punishment, execution method, lethal injection, electrocution, lethal gas, culpability, cruel and unusual, constitutional tort

Accepted Paper Series