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Vol. 107, Issue 6


The Modern Federal Death Penalty: A Cruel and Unusual Penalty

Hannah Freedman, Staff Attorney and the Director of Juvenile Litigation, Justice 360 and adjunct clinical professor, Cornell Law School

1 Sep 2022

The federal death penalty today would be unrecognizable to the founders, who saw the ultimate penalty as a means of protecting sovereign interests and who therefore carefully guarded the practice at English common law of yielding national interests to local ones. Over the course of time, the geographic distribution and substantive basis for the penalty changed, but until the modern era, its underlying purpose did not. As the Trump era executions made painfully clear, however, the federal death penalty today is different. It is disproportionately imposed for crimes that could have readily been prosecuted by other jurisdictions and that have little obvious connection to federal sovereignty, and it is disproportionately imposed against non-white people. By any rational measure, it is vanishingly rare, and it serves no valid penological goal. Simply put, federal death sentences today are, in most cases, ā€œcruel and unusual in the same way that being struck by lightning is cruel and unusual.ā€

To read this Article, please click here: The Modern Federal Death Penalty: A Cruel and Unusual Penalty.