A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute

Abstract

The United States has a growing elderly death row population; they are beginning to trickle into the execution chamber. This Article will consider the prospects for relief for the elderly condemned from death row confinement and continued threat of execution. The Supreme Court has several times rebuffed efforts to gain Eighth Amendment protection from execution for the long serving condemned irrespective of their age, denying certiorari to the so-called Lackey claim. The Lackey claim deserves recognition on its merits. Its chilly reception by the Supreme Court is best explained not by lack of merit but rather by the devastating impact its recognition would have on capital punishment. Execution in the United States follows condemnation on average by more than a dozen years. Hundreds of death row inmates have not had their cases finally resolved twenty and thirty years after sentence was pronounced. The ranks of the very long serving are steadily growing. Recognizing the Lackey claim would take the United States a long way down the road to abolition. The Supreme Court has been inhospitable to total abolition but willing to reform capital punishment by trimming back the types of crimes and criminals eligible for capital punishment. Unlike the general Lackey claim, Lackey-for-the-Elderly is another such modest reform. Lackey-for-the-Elderly is therefore more likely to succeed than the wider claim. Its adoption would bring an end to a practice the Eighth Amendment ought not to tolerate. It would spare the United States the spectacle of the elderly being carried or wheeled to the execution chamber after decades of growing old in death row confinement.