A Cruel and Unusual Term: The Distortion of Decency and Restraint in the Supreme Court’s 2018–2019 Death Penalty Decisions

The distortion of restraint and decency on the death penalty decisions of the US Supreme Court in 2018-2019 is examined. In many of these controversial and fractious death penalty decisions the Court engaged in judicial overreach, distorted the notion of judicial restraint, and sacrificed the Eighth Amendment norms of decency and anti-brutality. Neither the norms of decency and anti-brutality that undergird the Eighth Amendment evolving standards of decency doctrine, nor the institutional value of judicial restraint, were influential in the Supreme Court's death penalty decisions in the 2018. Although the Court greatly deferred to the states with respect to executions, in doing so, the Court engaged in forms of unrestrained judicial overreach that exhibited plain hostility to the claims of condemned prisoners and impatience with the process wrought by constitutional regulation of the death penalty.