Title

Dead Man Waiting: Death Row Delays, the Eighth Amendment, and What Courts and Legislatures Can Do

Abstract

Is there a point at which a person’s tenure on death row has lasted so long or has become so stressful that his sentence begins to violate the Constitution? This argument, dubbed the Lackey claim, has surfaced before in both the international and domestic arenas. Whereas over the last five years the Eighth Amendment has substantially chipped away at the constitutionally permissible parameters of capital punishment in the United States, the current legal landscape surrounding the death penalty may be poised for more upheaval.

My article, entitled “Dead Man Waiting: Death Row Delays, the Eighth Amendment, and What Courts and Legislatures Can Do,” confronts the renewed relevance of the Lackey claim and explores how it might be applied in today’s legal climate. The first step is convincing courts to recognize the “cruel and unusual” implications of the “death row phenomenon,” explained in Part I by a closer examination of death row conditions, death penalty justifications, and foreign opinion surrounding the issue of delay. If the courts do decide to acknowledge the potential of such a claim, the next step is to then identify the sensitive line at which a constitutional confinement on death row becomes unconstitutionally lengthy. Part II discusses the many considerations which must factor into this sort of delicate balancing act, so that state legislatures and courts alike can guard against future Eighth Amendment violations in a system where efficiency may be at odds with civility.

Disciplines

Constitutional Law

Date of this Version

June 2006