Death Delayed Is Retribution Denied

48 Pages Posted: 6 Apr 2014 Last revised: 14 Jun 2014

Date Written: April 4, 2014


Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive. Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from. Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment. Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional. Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism. Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.

Keywords: Death Penalty, Capital Punishment, Retribution, Retributivism, Death Row, Lackey Claim

JEL Classification: K14

Suggested Citation

Christopher, Russell, Death Delayed Is Retribution Denied (April 4, 2014). Minnesota Law Review, Vol. 99, No. 3, 2015, University of Tulsa Legal Studies Research Paper No. 2014-1, Available at SSRN:

Russell Christopher (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States
918-631-2440 (Phone)
918-631-2194 (Fax)

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