The Havoc Death Wreaks: Civil Rights Challenges to Capital Punishment

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty affects more than just the families of victims and the accused; rather, capital punishment infects the entire criminal justice system.

As this Article demonstrates, Justices Marshall and Jackson were right then and they are still right now. The death penalty touches many more lives than just the individuals condemned to death row. Throughout the process, numerous other people are involved, and some suffer injury as a result of their compulsory association with the "machinery of death." Due to the justiciability doctrine of standing, however, these individuals have not received redress for the damage they suffer because of capital punishment. This Article argues, to the contrary, that the individuals who are affected negatively by the death penalty, beyond simply the convicted defendant themself, can satisfy the necessary elements of Article III standing, as well as other justiciability obstacles, and have legitimate claims that the death penalty is cruel and unusual as applied to them. This Article further maintains, specifically, that the families of capital defendants have claims based on the Thirteenth Amendment's prohibition on slavery in addition to Eighth Amendment grievances.

If the people considered in this Article can surmount the justiciability hurdle, they present a unique challenge to the constitutionality of capital punishment and offer another vehicle through which death penalty opponents may challenge this age-old punitive practice. In slight contrast to existing proposals, this Article adds to the scholarship by focusing on a broad range of affected individuals and two specific constitutional rights-one well-trodden ground and the other cutting edge. This Article identifies five categories of potential plaintiffs to constitutionally challenge the continued imposition of capital punishment as applied to them, not to death penalty defendants. These categories are: victims' families, capital defendants' families, judges, corrections officials, and governors.

Moreover, this Article proposes two constitutional provisions to serve as the basis of these individuals' complaints: the Eighth and Thirteenth Amendments. The Eighth Amendment to the United States Constitution prohibits the imposition of "cruel and unusual punishment," while the Thirteenth Amendment proscribes slavery. Both of these provisions offer the possibility of ending capital punishment if the proper challenge is brought by an injured person from one of these five categories seeking a permanent injunction.

A playbook for succeeding on these claims is articulated here, with a particular emphasis on overcoming the ominous obstacle of justiciability. Importantly, this Article does not intend to try to diminish the severity or heinous character of the crimes for which juries have convicted and states have sentenced those to capital punishment. Nor does this Article endeavor to suggest that those who have received capital sentences did not engage in serious crimes deserving of the community's condemnation. This Article does, however, seek to more fully appreciate the breadth of the damage that stems from the death penalty's continued use in the United States and to contextualize capital punishment by highlighting the often-ignored voices of others involved in its implementation.