Friday, October 25, 2013
Michael J. Perry (Emory University School of Law) has posted Why Capital Punishment Violates the Constitutional Law of the United States on SSRN. Here is the abstract:
I explain in this paper why we are warranted in concluding that capital punishment — punishing a criminal by killing him — is both "cruel" and "unusual" within the meaning of the Eighth Amendment’s ban on "cruel and unusual punishments" and therefore violates the constitutional law of the United States. In setting the stage for that explanation, I discuss the internationally recognized human right not to be subjected to any punishment (or other treatment) that is "cruel, inhuman or degrading". When I turn to the question of the original understanding of the Cruel and Unusual Punishments Clause of the Eighth Amendment, I discuss the important work of John Stinneford, explaining why I concur in Stinneford’s conclusion about the original understanding of "cruel" but dissent from his conclusion about the original understanding of "unusual."