The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century

British Journal of American Legal Studies, Vol. 2, 2013, pp. 297-451

University of Baltimore School of Law Legal Studies Research Paper No. 2014-06

156 Pages Posted: 17 Oct 2013 Last revised: 23 Jan 2014

John D. Bessler

University of Baltimore - School of Law; Georgetown University Law Center

Date Written: 2013

Abstract

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as "cruel and unusual punishments." In so doing, the Article explores the history of the "cruel and unusual" catchphrase in English and American law and critiques the Supreme Court’s "evolving standards of decency" test. The Article also describes the abandonment of corporal punishments as penal sanctions and discusses existing Eighth Amendment jurisprudence on that topic. The Article explains how executions are cruel — and were thought to be so even by some of America’s founders — and have, over time, become unusual. The Article further highlights how the U.S. Constitution’s Fourteenth Amendment fundamentally transformed the Cruel and Unusual Punishments Clause calculus, making modern-day executions unusual in the extreme because of the arbitrary and discriminatory way in which they are carried out.

Keywords: capital punishment, death penalty, Eighth Amendment, Supreme Court, cruel and unusual punishment, executions, corporal punishment, legal history, Fourteenth Amendment, constitutional law

JEL Classification: K14, K19, K39, K49

Suggested Citation

Bessler, John D., The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century (2013). British Journal of American Legal Studies, Vol. 2, 2013, pp. 297-451; University of Baltimore School of Law Legal Studies Research Paper No. 2014-06. Available at SSRN: https://ssrn.com/abstract=2341077 or http://dx.doi.org/10.2139/ssrn.2341077

John D. Bessler (Contact Author)

University of Baltimore - School of Law ( email )

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HOME PAGE: http://law.ubalt.edu/

Georgetown University Law Center ( email )

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Washington, DC 20001
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HOME PAGE: http://www.law.georgetown.edu/

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