When the Federal Death Penalty Is "Cruel and Unusual"


Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill of Rights can be achieved only by placing primary emphasis on the views of the Anti-Federalists, who conditioned ratification of the Constitution on the inclusion of such a Bill. Such an account of the Bill of Rights recognizes that, with respect to most if not all of its provisions, “structural” and “individual rights” concerns are intertwined. That is, these provisions tie the protection of individual rights to the preservation of State sovereignty from the danger of federal encroachment. In particular, recent scholarship suggests that the criminal procedure protections of the Bill were in large part motivated by a desire on the part of the Anti-Federalists to make it more difficult for the federal government to investigate, prosecute, convict, and punish for crime, traditionally a prerogative of the States. It follows from this that the Eighth Amendment prohibition on “cruel and unusual punishments” was designed primarily to restrain the federal power to punish in a way that conflicts with the norms of an individual State. Thus, the imposition of the death penalty by the federal government in any State that does not impose that mode of punishment constitutes “cruel and unusual punishment” in violation of the Eighth Amendment.


Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

August 2005