Constitution Daily

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Podcast: Is the death penalty unconstitutional?

November 5, 2015 by NCC Staff


(credit: Wikimedia Commons)

The Eighth Amendment to the U.S. Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The latter part of the amendment—the idea of “cruel and unusual” punishment—is the crux of a long-running debate.


Since 1976, when the Supreme Court held in Gregg v. Georgia that the death penalty does not violate the Eighth Amendment in all circumstances, states have executed approximately 1,409 inmates, of which 1,232 have been executed using some version of a lethal injection.


Currently, 31 states permit the death penalty; three states—Pennsylvania, Oregon, and Washington—have a governor-imposed moratorium on its use. But a recent series of botched executions and death-row exonerations have raised new questions about the constitutionality of capital punishment.


Does the Cruel and Unusual Punishment Clause prohibit the death penalty? If not, are some modern methods of execution “barbaric” enough to violate the Clause? What standard should courts use to determine if a punishment is “cruel and unusual”?


John Stinneford is Professor of Law and Assistant Director of the Criminal Justice Center at the University of Florida Levin College of Law. He worked with Bryan Stevenson of the New York University School of Law and the Equal Justice Initiative to write about the Eighth Amendment for the Center’s Interactive Constitution.


Elizabeth Wydra is Chief Counsel at the Constitutional Accountability Center. She is also a member of the Center’s Coalition of Freedom Advisory Board.


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This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Joshua Waimberg and Danieli Evans. The host of We the People is Jeffrey Rosen.


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