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.
The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century, 2 Brit. J. Am. Legal Stud. 297 (2013).