Document Type
Article
Publication Date
Winter 2022
Abstract
Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty affects more than just the families of victims and the accused; rather, capital punishment infects the entire criminal justice system. As this Article demonstrates, Justices Marshall and Jackson were right then and they are still right now.
The death penalty touches many more lives than just the individuals condemned to death row. Throughout the process, numerous other people are involved, and some suffer injury as a result of their compulsory association with the "machinery of death." Due to the justiciability doctrine of standing, however, these individuals have not received redress for the damage they suffer because of capital punishment. This Article argues, to the contrary, that the individuals who are affected negatively by the death penalty, beyond simply the convicted defendant themself, can satisfy the necessary elements of Article III standing, as well as other justiciability obstacles, and have legitimate claims that the death penalty is cruel and unusual as applied to them. This Article further maintains, specifically, that the families of capital defendants have claims based on the Thirteenth Amendment's prohibition on slavery in addition to Eighth Amendment grievances. If the people considered in this Article can surmount the justiciability hurdle, they present a unique challenge to the constitutionality of capital punishment and offer another vehicle through which death penalty opponents may challenge this age-old punitive practice.
Recommended Citation
Bailey D. Barnes,
The Havoc Death Wreaks: Civil Rights Challenges to Capital Punishment, 31 Bsoton University Public Interest Law Journal 1
(2022).
Available at: https://scholarship.law.missouri.edu/facpubs/1288