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"(242) Instead, the Court will almost certainly focus on whether the death penalty is categorically "excessive"--adopting the two-prong framework that it used in 1976 in Gregg to uphold the per se constitutionality of the death penalty, and in Ford and subsequent dignity-of-life decisions that invalidated the death penalty for certain types of offenders and crimes. "

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"When the Court considers the per se constitutionality of the death penalty, its analysis will not focus on whether the method of execution is inherently barbaric or whether death penalty procedures result in the arbitrary imposition of death sentences. "

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"One might reasonably believe that the more basic the dignity, the more robust the legal protection. (228) But this is not the case. The progress of LGBT rights and the persistence of the death penalty expose a tension in dignity doctrine: the most basic aspect of dignity--life--receives the least protection under the law. "

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"Although a majority of sitting U.S. Supreme Court Justices has never questioned the constitutionality of the death penalty, six past and current Justices have. (202) Their concurring and dissenting opinions, like the three state high court decisions abolishing the death penalty, recognize a dignity of life at odds with the death penalty."

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" Part IV discusses the incoherence between the triumph of LGBT rights and the persistence of the death penalty, predicts the Supreme Court's invalidation of the death penalty on dignity grounds, and discusses some likely counterarguments. Part V considers abolition's possible implications for dignity doctrine, and Part VI offers some concluding remarks."

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"Part II of this Article examines the tripartite concept of dignity: liberty, equality, and life. Part III turns to the Supreme Court's doctrine of dignity under the Fourteenth Amendment's Due Process and Equal Protection Clauses and the Eighth Amendments "cruel and unusual punishment" clause."

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"A final insight considers dignity doctrine after the death penalty. Judicial abolition of the death penalty on dignity grounds may well be the criminal law's Lawrence, loosening the linchpin that currently sustains racially disparate sentencing, solitary confinement, and even life without the possibility of parole. (54) Abolition will also fortify dignity's doctrinal significance, pushing it beyond the Eighth and Fourteenth Amendments toward its rightful place at the center of American constitutional law. (55)"

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"It further argues that there is a hierarchy among these concerns; they form three concentric rings, with life at the center. We have intrinsic value as human beings (dignity of life), we have equal value to other human beings (dignity of equality), and we also have certain freedoms as human beings (the dignity of liberty)."

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"As Professor Kenji Yoshino has discussed in the Fourteenth Amendment context, the concept of dignity embodies both liberty and equality concerns. (30) They are, in his words, like two "horses that r[u]n in tandem"..."

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"Although the answer to Justice Marshall's question is subject to debate, one thing is certain: when the Court considers the constitutionality of the death penalty, dignity will figure prominently. This Article offers four insights on dignity and the death penalty."

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"In a 42-page dissenting opinion citing Chappell, Justice Breyer, joined by Justice Ginsburg, argued that it is "highly likely that the death penalty violates the Eighth Amendment" for a litany of reasons, and invited full briefing on the issue. (27) And just eight weeks after Glossip, the Connecticut Supreme Court handed down a sweeping decision in State v. Santiago, which ruled Connecticut's 400-year-old death penalty cruel and unusual in violation of the state's constitution. (28) It is the third state high court in history to do so. (29)"

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"Three recent legal developments suggest that the time is near. (23) On July 16, 2014, in Jones v. Chappell, the U.S. District Court for the Central District of California held that California's imposition of the death penalty violates the Eighth Amendment based on the extraordinary, decades-long delay that precedes execution in the state."

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"whether American society has reached a point where abolition [of the death penalty] is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment."

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"Some argue that dignity has absolutely no place in our constitutional scheme. Chief-justice Roberts and Justice Thomas certainly seem to think so. The Constitution contains no "dignity clause," they say. (17) As a textual matter, the Justices are correct. (18) But as a matter of doctrine, they could not be more wrong."

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"On September 30, 2015, the State of Georgia executed Kelly Gissendaner for recruiting a man with whom she was romantically involved to murder her husband, Douglas. ..(9) She sought, and eventually received, the forgiveness of her and Douglas' three children, whose pleas for commutation were rejected by Georgia's parole board. (10) As reported by a witness to the execution, Kelly was very emotional prior to the execution. "She was crying and then she was sobbing and then [she] broke into [Amazing Grace] as well as into a number of apologies.... When she was not singing, she was praying." Kelly Gissendaner's execution is upsetting to some, but not for the reasons we often associate with the death penalty"

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"I believe that a majority of the Supreme Court will one day accept that when the state punishes with death, it denies the humanity and dignity of the [condemned] ..."

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