Op-ed: What if Originalism Comes for the Death Penalty?

ALBANY, N.Y. (Apr.  29, 2026) — Should the U.S. Supreme Court reinterpret what is considered a "cruel and unusual punishment,” UAlbany might become a key research center for setting new guidelines, explains School of Criminal Justice O’Leary Professor James Acker in an editorial published April 5 in the Times Union.  

“Fifty years ago, the justices ushered in the modern era of capital punishment when they reasoned that the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ But in a death-penalty case now before the Supreme Court, the attorneys general of 17 states seek to abandon that standard,” writes Acker.  

That case, Hamm v. Smith, concerns the criteria used in Alabama to establish intellectual disability, thus exempting an offender from the death penalty. If originalism prevails in interpreting the Eighth Amendment, the National Death Penalty Archive, which is housed at UAlbany, will be a vital resource for death penalty researchers in creating the new guidelines. 

The archive is one of the largest repositories on the history of U.S. capital punishment, including files cataloguing more than 16,000 executions dating to colonial times, along with books, pamphlets and ephemera spanning the centuries, addressing issues like innocence, racial disparities, jury decision-making in capital cases and clemency petitions.

Read the full editorial on the Times Union’s website.