Suffering Before Execution

*Bryant Smith Chair in Law and Co-Director, Capital Punishment Center, University of Texas School of Law. For their questions and generous attention to my drafts, I thank Jeff Bellin, David Fathi, Sharon Finegan, Eric Freedman, Adam Gershowitz, David Gray, David Kwok, Allison Larsen, Jennifer Laurin, Katherine Mims Crocker, Nate Oman, Maria Ponomarenko, Carol Steiker, Jordan Steiker, and Pieter Van Tol. I am also grateful to the William & Mary Law School for hosting me for their faculty workshop series.Show More

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily.

There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades.

Introduction

People living on American death rows will die eventually, but first they will wait. And when death does come, it is more likely to be suicide or natural causes than the executioner’s hand.¹ 1.See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ].Show More Those whom the state manages to execute will spend, on average, about twenty years in pre-execution confinement² 2.See id. at 15 tbl.10.Show More —often in squalor and almost always alone.³ 3.See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states).Show More In other words, the condemned suffer intensely, in solitude, and at great length.

Almost every death penalty jurisdiction in the United States maintains a death row—a segregated living arrangement reserved for death-sentenced prisoners.⁴ 4.The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same).Show More Pre-execution confinement might be a central feature of the modern death penalty, but it is theoretically neglected. Most jurists and scholars reflexively conceptualize it as an extreme form of punitive suffering.⁵ 5.See infra Section I.B.Show More Even in corners of the legal academy more attentive to the theoretical question, people treat pre-execution confinement as punishment.⁶ 6.To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment).Show More

I have a different view: that pre-execution confinement is a form of nonpunitive custody. The execution is the penalty, and the prior confinement is the administrative detention necessary to carry that punishment out. After all, if death is the ultimate penalty, then what could the moral justification for adding punitive detention be? None of this is to say that pre-execution confinement is morally or legally unjustifiable. But if the confinement is nonpunitive, then it ought to be subject to moral and constitutional constraints that differ from those that limit punishment.

I proceed in three parts. In Part I, I set forth the punitive framework that dominates the modern understanding of pre-execution confinement. In so doing, I present the associated suffering along two dimensions. The first involves the duration of confinement, and the second involves its conditions. Most people sentenced to die will lead lives marked by some substantial combination of malnutrition, inadequate health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.⁷ 7.See infra Subsection I.A.2.Show More The distribution of this suffering within the cohort of death-sentenced people, moreover, has almost nothing to do with moral blameworthiness.⁸ 8.See infra Subsection I.A.1.Show More Nevertheless, and as debates rage over justifications for such suffering, almost everyone is engaged in a similar project: to evaluate whether pre-execution confinement can be justified as punishment.⁹ 9.See infra Section I.B.Show More

In Part II, I make the theoretical claim that pre-execution confinement is not punishment. That is, the state does not subject condemned people to harsh pre-execution treatment in order to counterbalance blameworthy conduct or for other punitive reasons.¹⁰ 10.See infra Section II.A.Show More Most death rows exist because correctional administrators have decided to establish and populate them, and the suffering that condemned people experience there is typically justified by reference to incapacitation—an objective that the Supreme Court and most of the theoretical literature treat as nonpunitive.¹¹ 11.See infra notes 150–51, 242–53, 266–83 and accompanying text.Show More The problems with a punitive view of pre-execution confinement are more than just definitional. Any punitive treatment imposed by the state would violate core justificatory tenets of punishing. The state ought not impose punishment beyond the punitive treatment that the offending person deserves, so pre-execution confinement cannot be punishment added to the legislatively specified and jury-imposed maximum, which is an execution.¹² 12.See infra Subsection II.B.1.Show More

In Part III, I tackle constitutional doctrine. The constitutional law of nonpunitive detention can comfortably absorb confinement before execution.¹³ 13.See infra Section III.A.Show More I also consider how that doctrinal change would affect pre-execution practices. First, it would change the procedures by which the state may permissibly isolate people in a segregated facility, and the most meaningful change would require periodic review for dangerousness.¹⁴ 14.See infra Subsection III.B.1.Show More Second, it would mean that conditions of pre-execution confinement would be subject to analysis under stricter due process tests, rather than less stringent Eighth Amendment ones.¹⁵ 15.See infra Subsection III.B.2.Show More Finally, it would give the Supreme Court a way to resolve a doctrinal impasse for which the Justices have offered only unconvincing answers: If lengthy pre-execution confinement entails decades of suffering, then how can the Eighth Amendment permit the state to add an execution?¹⁶ 16.See infra Section III.C.Show More

In sum, pre-execution confinement should be treated as nonpunitive detention—an administrative arrangement necessary to incapacitate risks. On such an understanding, jurisdictions must reform pre-execution practices to avoid the pervasive neglect and dehumanizing treatment permitted under more punitive approaches. Readers should understand that, when I dispute the status of pre-execution confinement as punishment, I neither deny the existence of extraordinary pre-execution suffering nor suggest that it lies beyond law’s reach. Quite the opposite, in fact. Suffering before execution is cause for profound concern, both moral and legal. When the state inflicts that suffering for nonpunitive reasons, it ought to be substantially constrained, and there is constitutional doctrine capable of meaningfully constraining it.

1.  See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ]. ↑
2.  See id. at 15 tbl.10. ↑
3.  See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states). ↑
4.  The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same). ↑
5.  See infra Section I.B. ↑
6.  To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment). ↑
7.  See infra Subsection I.A.2. ↑
8.  See infra Subsection I.A.1. ↑
9.  See infra Section I.B. ↑
10.  See infra Section II.A. ↑
11.  See infra notes 150–51, 242–53, 266–83 and accompanying text. ↑
12.  See infra Subsection II.B.1. ↑
13.  See infra Section III.A. ↑
14.  See infra Subsection III.B.1. ↑
15.  See infra Subsection III.B.2. ↑

16.  See infra Section III.C. ↑