Let's Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and Unusual Punishment
39 Pages Posted: 27 Jul 2010
Date Written: Winter 2000
This Article addresses the issue of whether a criminal defendant may waive the Eighth Amendment prohibition on cruel and unusual punishments by selecting an unconstitutional punishment over a constitutional punishment. The Article begins with a discussion of the Supreme Court’s Eighth Amendment jurisprudence, followed by a discussion of areas where the Court has allowed defendants to waive Eighth Amendment protections in various contexts.
Then, the Article discusses court decisions that have addressed whether one may waive Eighth Amendment protections by choosing a cruel and unusual punishment. Generally, this issue has arisen in three contexts: (1) where defendants are given the punishment option of banishment; (2) where sex offenders are given the punishment option of castration; and (3) where capital defendants are given an execution method option that violates the constitution. The Article explains that at least in the context of punishment type, a defendant’s choice should not waive Eighth Amendment protections. First, the ban on cruel and unusual punishments is a right that differs significantly from other constitutional criminal rights because it serves a broad societal purpose. Second, the waiver of this right differs from the waiver of other criminal rights because such waivers do not benefit the individual or society. Finally, to allow such waivers would strip the Eighth Amendment of meaning by permitting legislatures to create any punishment options it desired. Therefore, the Article concludes that the Eighth Amendment ban on cruel and unusual punishments cannot be waived by an individual.
Keywords: capital punishment, death penalty, waive, waiver, eighth amendment, cruel and unusual, execution, execution methods, banishment, castration
JEL Classification: K14, K40, K41
Suggested Citation: Suggested Citation
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By Dan Markel