Does Stare Decisis Apply in the Eighth Amendment Death Penalty Context?

Abstract

Throughout the past few decades, the Supreme Court has steadily chipped away at the death penalty. It was only recently, however, that courts have confronted what role precedent plays in the Eighth Amendment death penalty context. Surprisingly, few scholars have yet explored this important and complicated issue. Precedent in this area is unique because the law of the Eighth Amendment is always changing and the Eighth Amendment has been interpreted to be applied more broadly in the death penalty context. This Article argues that precedent in the Eighth Amendment death penalty context does not apply in the typical fashion. Instead of applying Supreme Court outcomes as precedent in this context, lower courts should apply Supreme Court rationale. This is consistent with the language of Supreme Court opinions and will afford greater and speedier justice to death penalty defendants.

Keywords: Eighth Amendment, Punishments Clause, cruel and unusual, death penalty, capital punishment, stare decisis, precedent