Alexandra L. Klein (Washington and Lee University School of Law) has posted The Dirty Work of Executioners (17 U.C. Irvine L. Rev. (forthcoming 2027)) on SSRN. Here is the abstract:
The Supreme Court has insisted that, because the death penalty is constitutional, there must be a way to carry it out. For the death penalty to function, there must be executioners. Execution participants handle society’s dirty work. They have a unique experience because they both inflict and experience state cruelty. Despite practices intended to diffuse moral responsibility in state killing, execution work may contribute to stigma and dignitary harms. Execution participants experience moral disengagement, dehumanization, and mental health problems, including posttraumatic stress disorder, anxiety, substance abuse, and secondary trauma. Legal scholars, commentators, and legislators have suggested that these harms should receive greater scrutiny in litigation and discourse addressing capital punishment and abolition.
This Article argues for an expansion of the constitutional understanding of cruelty by drawing on the concepts of dirty work and moral injury. Prohibitions on cruel and unusual punishments, which protect human dignity, are properly understood to reach the effects of a punishment. This Article argues that those effects should include the impact of punishment on both the punished and the punishers. People facing execution should be able to challenge state capital punishment practices with evidence of that cruelty. The harm execution participants experience is relevant to method-of-execution claims and a powerful argument for abolishing the death penalty. This Article offers constitutional arguments applying both the Eighth Amendment and state constitutional law and concludes that the cruelty associated with punishment should include not just the cruelty inflicted upon the punished, but the cruelty and degradation inflicted upon the punisher.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum