Zack Smith (The Heritage Foundation) has posted Deciding Death: The Eighth Amendment’s Cruel And Unusual Punishments Clause Does Not Prohibit Death As A Punishment For All Non-Capital Crimes (Cumberland Law Review, Vol. 56 (2026)) on SSRN. Here is the abstract:
For centuries, societies have put people to death for committing crimes. At common law, death typically served as a default penalty for those convicted of committing a felony. By today’s standards, the imposition of the ultimate punishment might seem unduly harsh for some who receive it. But the indisputable evidence shows that the death penalty remained an available punishment for a variety of crimes at the time the United States Constitution was drafted and ratified.
And yet, some have argued that the Eighth Amendment’s Cruel and Unusual Punishments Clause actually prohibits the death penalty as a punishment. Since there’s no way to square this argument with the original public meaning of the clause, proponents have instead relied on a widely criticized legal theory based on society’s “evolving standards of decency.” This atextual, ahistorical text has wreaked havoc in the U.S. Supreme Court’s death penalty precedents. As such, this standard and the caselaw applying it, which purports to prohibit the death penalty for certain individuals or categories of crimes, should be re-examined because it can find scant support in the text of the Constitution or the history and traditions of our country.
Accordingly, this Article proceeds in three parts. First, it briefly traces the origins and original public meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause, including a discussion of whether judges can find a punishment authorized or required by the legislature to be cruel and unusual because, in the judge’s view, it is disproportionate to the crime committed. Second, it discusses the Supreme Court’s application of the ahistorical, atextual “evolving standards of decency” test to prohibit the death penalty from being applied against certain people, convicted of certain crimes. And third and finally, it discusses the efforts of some states, such as Florida, to apply the death penalty against those convicted of certain non-capital crimes (for example, particularly heinous sex crimes against children). While those efforts are likely prohibited by current caselaw, they should not be. And the U.S. Supreme Court should conform its caselaw with the original public meaning of the Constitution.