While capital punishment is constitutional, death row prisoners argue that “capital punishment plus”—execution plus decades of post-sentencing, pre-execution incarceration—is unconstitutional. In denying that capital punishment plus violates the Eighth Amendment prohibition against cruel and unusual punishment, courts employ three principal rationales. First, lengthy delays between sentencing and execution are attributable to and the fault of prisoners. Second, lengthy delays affording thorough appellate and collateral review are necessary to ensure the accuracy and fairness of death sentences. In short, accuracy trumps speed. Third, the lengthy review process extending prisoners’ stay on death row is necessary to satisfy the Eighth Amendment. That is, delays caused by satisfying the Eighth Amendment cannot violate it. This Article argues that these rationales are inconsistent with each other. The first rationale—delay is the prisoner’s fault—is inconsistent with the second and third rationales—delay is a consequence of what is constitutionally permissible, desirable, and obligatory. The first rationale blames prisoners for the very delays that the other two rationales defend and justify as consequences of what is affirmatively good. As inconsistent rationales, at least one is incorrect, and all three are suspect. While not conclusively establishing that capital punishment plus is unconstitutional, this Article erodes the foundations of its constitutionality.
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