Dignity and the death penalty in the United States Supreme Court

Malkani, Bharat ORCID: https://orcid.org/0000-0003-3724-2444 2017. Dignity and the death penalty in the United States Supreme Court. Hastings Constitutional Law Quarterly 44 (2) , pp. 145-201.

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Abstract

The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition. The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional. Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another. For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment. When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Law
Publisher:	University of California
ISSN:	0094-5617
Related URLs:	https://papers.ssrn.com/sol3/papers.cfm?...
Date of First Compliant Deposit:	2 February 2018
Last Modified:	05 May 2023 03:54
URI:	https://orca.cardiff.ac.uk/id/eprint/105230

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