Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

By Brandon Vines

Many of the two thousand Americans living under a sentence of death spend twenty-three hours a day in a concrete box the size of a parking space. Often the only human touch they feel is being handcuffed and the only natural light comes from a small grill at the top of an exercise cell. However, change is at hand. The Supreme Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishments draws its meaning from the evolving standards of decency that mark the progress of a maturing society. To date, there has been a dearth of information available regarding the historical and modern conditions on death row.

This Note addresses this gap. Part I provides, for the first time, a complete historical narrative of the development of the American death row from the Colonial Era to the Twenty-First Century. Part II reviews the findings of a survey of every jurisdiction with capital punishment to capture a national snapshot of conditions on America’s death rows. The findings in both Parts suggest that the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values. Indeed, there is an accelerating trend away from the practice. Part III places this evidence in constitutional context and argues that the twelve states that retain permanent solitary death rows are out of pace with America’s evolving standards of decency and violate the Eighth Amendment.

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