In the nearly four decades since the U.S. Supreme Court reinstated the death penalty in 1976, the average time between sentencing and execution in the United States has steadily increased to 16.5 years as of the end of 2011. In states like California, the total lapsed time from sentencing to execution exceeded two decades as of 2008. In response to these lengthening delays, scores of death row inmates have been raising Lackey claims over the last few decades—claims that inordinate preexecution delays on death row constitute cruel and unusual punishment under the Eighth Amendment. These claims have universally failed in the lower courts, even though two Supreme Court Justices have staunchly supported these claims and repeatedly noted that these claims have merit.
This Note examines the two existing formulations of the Lackey claim and argues that the reason that Lackey claims have been unsuccessful is that their focus on individual inmates’ delays has been misplaced. These claims’ case-by-case method of Eighth Amendment argumentation is inadequate to challenge the larger phenomenon of systemic delay that plagues states like California, delay that is due primarily to the state’s advertently flawed administration of the death penalty rather than to the state’s or defendant’s post-trial course of conduct in a particular case. Drawing from empirical findings on several states’ administration of the death penalty and from the fact that lengthy passages of time on death row are not unique to certain inmates but rather endemic in certain states, this Note concludes that the Eighth Amendment violation inherent in systemic preexecution delay is that the state is systematically implementing a torturous punishment distinct from death—that is, life in the “shadow of death.” This new punishment is categorically cruel and unusual under the Eighth Amendment. As with other constitutional violations, the state can and should be held responsible for imposing this punishment, even—and especially—when the state’s policy of doing so is not underwritten by legislation.