Getting to Death: Are Executions Constitutional?

146 Pages Posted: 14 Jul 2007 Last revised: 2 Apr 2011

Deborah W. Denno

Fordham University School of Law

Date Written: March 31, 2011

Abstract

This article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. The United States Supreme Court has never reviewed evidence concerning whether any particular execution method is unconstitutional and has rarely even broached the issue.

This article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The article proposes a test that better comports with the Court's Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the article studies each state's legislative changes in execution methods during the Twentieth Century as well as accounts of botched executions. The article suggests that the two most prevalent methods of execution - lethal injection and electrocution - are unconstitutional. The article concludes that this country's historic failure to question the constitutionality of execution methods has often been motivated solely by legislatures' and courts' desires to perpetuate the death penalty. This motivation distorts the death is different principle as well as any rational philosophy of punishment.

Suggested Citation

Denno, Deborah W., Getting to Death: Are Executions Constitutional? (March 31, 2011). Iowa Law Review, Vol. 82, pp. 319-464, 1997. Available at SSRN: https://ssrn.com/abstract=999650

Deborah W. Denno (Contact Author)

Fordham University School of Law ( email )

Fordham University School of Law
150 West 62nd Street
New York, NY 10023
United States
212-636-6868 (Phone)
212-636-6899 (Fax)

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