Disabilities on Death Row: The ADA, Ableism, and Alternatives to the Eighth Amendment
In one of the most recent death penalty cases, the Supreme Court of the United States held that the Eighth Amendment to the Constitution’s prohibition against cruel and unusual punishment does not guarantee a painless death and that the execution was constitutional if there was not “superadded” pain, despite the inmate’s disability causing extreme pain when he was required to lie down on a gurney.While the Court used an Eight Amendment analysis to determine whether additional pain triggers further protection for a death row inmate, it may be time to view some cruel and unusual punishment claims under a disability lens. This article will explore the use of disability law and potential legislation to provide accommodations for inmates with disabilities during executions. Accommodations for death row inmates may be unpopular—and even gruesome—to consider, but they may be the best way to ensure that an execution is as painless as possible. The article will review recent incidents involving “botched” executions where persons with disabilities such as obesity, small veins, and heart conditions were executed despite their disabilities and will propose a legislative framework for addressing these and other potential disability-related matters in death penalty cases.