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72 Fla. L. Rev. 1 (2020)

handle is hein.journals/uflr72 and id is 1 raw text is: 



UNUSUAL STATE CAPITAL PUNISHMENTS


                         William W. Berry Hi*

                               Abstract
   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.

INTRODUCTION   .........................................................................................3

    I.   EIGHTH  AMENDMENT UNUSUALNESS.........................................6
         A.  Furman  v. Georgia..............................................................7
         B.  The Evolving Standards  of Decency...............................8

    II.  STATE CONSTITUTIONAL UNUSUALNESS ..............................15
         A.  State Constitutional Analogues to the
             Eighth Amendment   ...........................................................16
         B.  Conjunctives and Disjunctives .........................................18
         C.  Counties as Analogues for States .....................................20


     * Associate Professor, University of Mississippi School of Law; D.Phil. in Law,
University of Oxford; J.D., Vanderbilt University. I would like to thank Andrew Rock for his
outstanding research assistance on this Article, and the Florida Law Review for their excellent
editorial work in preparing this Article for publication.

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