Suffering Before Execution

61 Pages Posted: 25 Jan 2023 Last revised: 14 Jun 2023

See all articles by Lee Kovarsky

Lee Kovarsky

University of Texas at Austin, School of Law

Date Written: January 23, 2023


When condemned people suffer before their executions, does that suffering represent punishment? I argue that it does not—at least not the suffering on American-style death rows. American institutions instead administer pre-execution confinement as something closer to non-punitive detention, and I make several normative claims about what should follow from that status. Among other things, a non-punitive paradigm entails thicker constitutional constraints on solitary confinement and unsafe living conditions. It also represents a novel solution to a challenging doctrinal puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. On average, those whom the state kills will have spent about twenty years in such conditions—up from two years in 1960. The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

That assumption is unjustified as a matter of penal theory, for two reasons. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering that is collateral to an incapacitation interest. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would distribute that punishment across the death-sentenced prisoner cohort arbitrarily.

There is a reasonably well-developed body of constitutional law capable of absorbing a shift in the status of pre-execution confinement. On that constitutional law, when the state detains people primarily to incapacitate them, that detention is preventative, not punitive. Due process, rather than the Eighth Amendment, constrains such preventative detention. A nonpunitive approach would reduce suffering because the constitutional rules contain different, more stringent constraints on pre-execution confinement. Such an approach would also give the Supreme Court satisfactory answers to difficult Eighth Amendment questions that have eluded it for quite some time.

Keywords: sentencing, execution, death penalty, capital punishment, punishment, penal theory

Suggested Citation

Kovarsky, Lee, Suffering Before Execution (January 23, 2023). Virginia Law Review, Forthcoming, U of Texas Law, Legal Studies Research Paper , Available at SSRN: or

Lee Kovarsky (Contact Author)

University of Texas at Austin, School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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