This Article argues that many of the states that retain the death penalty currently violate their own state constitutions because their use of the death penalty is unusual. Specifically, an intrastate assessment of the death penalty in some states, particularly examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment. As a result, this Article explores the twenty-six capital states that proscribe “unusual” punishments and categorizes them based on the likelihood that their use of the death penalty violates their state constitutions.
Part I of this Article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases. In Part II, this Article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law. Part III then examines the states that have unusual punishment proscriptions in their state constitutions and categorizes the states based on the likelihood that their use of the death penalty violates their state constitutions. Finally, in Part IV, this Article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move. Read More.