Constraining America’s Death Penalty: The Eighth Amendment and Excessive Punishment

For most of America’s recorded history the death penalty has been widely accepted as part of the nation’s criminal justice regime. Since a majority of the States and the federal government have been unwilling to abandon capital punishment voluntarily, abolitionists have had to look to the text of the United States Constitution or to the several constitutions of the retentionist States to develop constitutional arguments for prohibiting the practice. This chapter looks at the role that might be played by the United States Constitution in advancing this aim.