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Unlocking The Eighth Amendment’S Power To Make Innocence A Constitutional Claim, David Niven

david niven

The U.S. Supreme Court has articulated no definitive constitutional bar to executing the innocent. While the text of the Constitution may not directly speak to the question, the court has elsewhere held, repeatedly and unanimously, that the operative meaning of the Eighth Amendment is shaped by decisions of state legislators. That is, if state legislators deem something cruel and unusual (executing minors, for example) it has therefore been rejected by society and is constitutionally barred. If legislators deem a particular practice acceptable, it is acceptable to society and thus permitted by the Constitution. Despite their significance in death penalty jurisprudence …