By Sunny Zhou
AUSTIN, TX – In a forthcoming Virginia Law Review paper “Suffering Before Execution,” University of Texas Law Prof. Lee Kovarsky argued confinement before execution should not be conceptualized as punishment but as administrative detention, which could allow for more constraints on solitary confinement and other unsafe living conditions.
“The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness,” Kovarsky explained, adding, “Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.”
Kovarsky pointed out that definitionally, suffering in confinement before execution does not fall under punishment, as “suffering….is collateral to an incapacitation interest.”
If pre-execution confinement were to be considered punishment, Kovarsky said, it would not only constitute an unjustified punishment beyond death, but also be arbitrarily distributed across a cohort of death row inmates with varying sentences.
“It’s administrative detention, and it should therefore be subject to due process constraints, not Eighth Amendment ones,” said Kovarsky, arguing a different set of constitutional rules around pre-execution confinement contain more stringent restrictions that could reduce the suffering many people on death row experience.
“Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation…and excessive isolation,” added Kovarsky.
