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Reason Not the Need: Does the Lack of Compelling State Interest in Maintaining a Separate Death Row Make it Unlawful?

31 Pages Posted: 8 Aug 2008  

Mark D. Cunningham

affiliation not provided to SSRN

Andrea D. Lyon

Valparaiso University Law School

Date Written: Fall 2005


A mythology is associated with the death penalty in this country - and also with death row. It is a mythology rooted in the depravity of the offenses committed by these inmates, and our mixed fascination and revulsion toward those who have perpetrated such misdeeds. It is a mythology enhanced by expectations of the certain malevolence of persons under a sentence of death.

American correctional policy towards death-sentenced inmates, however, is ostensibly guided by science, sound data, and "legitimate peneological interest" - not mythology. A segregated death-row is a near ubiquitous characteristic of this correctional policy. Central to the death row segregation rationale are assumptions that the nature of their capital offenses renders death-sentenced inmates at much greater risk to assault and injure correctional personnel and other inmates in prison, and that this risk is amplified by their having "nothing to lose." Accordingly, death sentenced inmates have been widely viewed as requiring extraordinary security procedures - procedures that result in far more draconian living conditions. Most death rows in the United States keep the inmate in an individual cell for 22 or 23 hours out of each day; restrict access to books, visits, telephone, and programs; limit showers and exercise; and require that any movement include shackling, often both on the ankles and at the waist. Astoundingly, the risk-driven assumptions undergirding segregated death rows and their associated intensive security procedures have not been based on demonstrated necessity. Whether death row reflects a legitimate penological interest in risk management, or embodies a conventional but erroneous wisdom rooted in the mythology of these prisoners and the ritual of the death row units that contain them, was without illumination. That darkness no longer exists. After over a decade of disciplinary data had been collected by the Missouri Department of Corrections, Cunningham, Reidy, and Sorensen undertook a comparative examination of the prevalence and frequency rates of violent institutional misconduct among the death-sentenced, life-without-parole, and term sentenced inmates who had been confined in PCC between 1991-2002. This analysis demonstrated that, far from being a disproportionate menace to institutional order, death-sentenced inmates had rates of violent institutional misconduct that were equivalent to inmates sentenced to life-without-parole, and were only a fraction of the rate of violence of parole-eligible prisoners. The risk-driven assumptions of death row were resoundingly debunked, leaving only mythology as a correctional rationale.

Keywords: death row, future dangerousness, death penalty, peneological interest

Suggested Citation

Cunningham, Mark D. and Lyon, Andrea D., Reason Not the Need: Does the Lack of Compelling State Interest in Maintaining a Separate Death Row Make it Unlawful? (Fall 2005). Available at SSRN: or

Mark Cunningham

affiliation not provided to SSRN

Andrea Lyon (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States

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