Academic journal article Washington and Lee Law Review

Solitary Confinement until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process

Academic journal article Washington and Lee Law Review

Solitary Confinement until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process

Article excerpt

Table of Contents

I. Introduction.1213

II. Death Row Is a Human Warehouse.1215

III. Death Row Confinement Is Objectively Dehumanizing.1223

IV. Death Row Confinement Is a Form of Torture.1227

V. Death Row Confinement Is Cruel in the Eighth Amendment Sense of the Term.1236

I. Introduction

The death penalty in America is a punishment with two essential and inseparable dimensions: (1) solitary confinement under sentence of death for years and even decades, followed by (2) execution in the death chamber in what amounts to a state-sponsored homicide. In practice, these dimensions merge, yielding a regime of solitary confinement that culminates in a death by state-sponsored homicide. The killing process-from solitary confinement on death row through execution in the death house- is an objectively dehumanizing one: condemned prisoners are stored on death row like objects rather than human beings, and then dispatched in the death chamber following an impersonal and degrading execution routine.

It is fitting, then, that many condemned prisoners see themselves as "the living dead" and death row confinement as "a living death." These observations were first established in my ethnographic study of life under sentence of death on Alabama's death row at Holman Prison in 1979,1 reinforced in my study of the death house and execution process in Virginia in 1989,2 and recently confirmed by other observers (including the ACLU).3 The notion that the condemned are in some sense dead before they are executed supports the prescient observations of the French existentialist, Albert Camus. In Camus' reckoning, the condemned prisoner "is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worse than the second . . . . Compared to such torture, the penalty of retaliation seems like a civilized law."4

Drawing on my prior writing on the death penalty, from which I borrow liberally, I will dissect the process by which a prisoner dies twice under sentence of death and show how this process facilitates executions that are carried out efficiently, with no resistance from the typical condemned prisoner.5 In essence, this process entails the dehumanization of the prisoner-the death of the person's humanity, which in turn paves the way for passive participation in the death of the body carried out in the killing process that unfolds in the death chamber.6 I will argue that the totality of the experience of prisoners put to death in America today necessarily and inevitably entails dehumanization, which I contend is at the heart of all forms of torture.7 I conclude that the death penalty in practice is a form of torture (exposing condemned prisoners to intense suffering in the form of ongoing torment),8 that it is cruel for Eighth Amendment purposes (failing to meet a "carceral burden"9 to respect and protect prisoners, which is essential to humane punishment), and that the death penalty is therefore in clear violation of the Eighth Amendment.10

II. Death Row as a Human Warehouse

There is something basic and timeless about the plight of those held captive awaiting execution. The very label, Death Row, is evocative. Helen Prejean-noted author of Dead Man Walking- upon her first visit to death row, observed: "My stomach can read the letters better than my brain."11 Her stomach can read the words better than her brain because she has a "gut feeling of empathy evoked by the helplessness and vulnerability of the condemned."12 Michael Lesy reports a similarly basic reaction upon visiting death row, falling back on the image of the setting as a dungeon for the dispossessed: "The place was a dungeon," he stated, "full of men who were as good as dead."13

Death rows, even the best of them, are human warehouses. The vast majority of death rows-more than ninety percent by a recent count-store condemned prisoners in their solitary cells for up to twenty-two hours a day as they await execution. …

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