Abstract
The death penalty has long been a moral and constitutional divide in American politics. Like abortion, it invokes deep ethical beliefs as well as constitutional principles. Two major cases and two requests for stays of execution decided this year question the methods of execution as possible violations of the Constitution. Can the state execute someone whose dementia precludes them from remembering the crime or understanding the reasons for their death? Can the state execute someone whose medical condition will cause extreme pain during the procedure? The Court has become increasingly divided between those who are impatient with decades of legal delays in carryout out death sentences and those who believe the current methods of execution violate the Eighth Amendment’s guarantee against cruel and unusual punishment.
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Notes
- 1.
477 U.S. 399 (1986).
- 2.
Justice Kavanaugh took no part in the ruling because he had not yet joined the Court when the case was argued on 2 October 2018.
- 3.
Madison decision, page 3.
- 4.
Ibid., page 10.
- 5.
Madison Alito dissent, page 8.
- 6.
553 U.S. 35 (2008)
- 7.
576 U.S. ___ (2015).
- 8.
The Bill of Rights originally limited only the federal government. When a litigant claims a state law violates a provision of the Bill of Rights, they rely on the Due Process Clause of the Fourteenth Amendment ratified in 1868, which the Supreme Court in a series of cases has ruled incorporates almost all of the provisions of the first eight amendments to the Constitution against state governments. (See the discussion of incorporation in Chapter 12.)
- 9.
See Jacobson v. Massachusetts, 197 U.S. 11 (1905).
- 10.
Kavanaugh also wrote a short concurring opinion on the availability of alternative methods of execution.
- 11.
Bucklew decision, page 8.
- 12.
Ibid., page 11.
- 13.
Ibid., page 13.
- 14.
Ibid., page 16.
- 15.
Bucklew Thomas concurrence, page 1.
- 16.
Bucklew Breyer dissent, page 14.
- 17.
Bucklew decision, page 29.
- 18.
Ibid., page 30.
- 19.
Bucklew Breyer dissent, page 16.
- 20.
Ibid., page 18.
- 21.
Bucklew Sotomayor dissent, page 5.
- 22.
Murphy Kavanaugh concurrence, page 2.
- 23.
Ray Kagan dissent, page 2.
- 24.
Murphy Alito dissent, page 9.
- 25.
428 U.S. 153 (1976).
- 26.
See James S. Liebman, et al., “Capital Attrition: Error Rates in Capital Cases, 1973–1995,” 78 Texas Law Review (2000) 1839.
- 27.
See Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (Cambridge, MA: Harvard University Press, 2016); Lee Kovarsky, “The American Execution Queue,” 71 Stanford Law Review 1163 (2019).
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Graber, M.A. (2020). Madison, Bucklew, Dunn, and Murphy on Capital Punishment at the Margins. In: Klein, D., Marietta, M. (eds) SCOTUS 2019. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-29956-9_9
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