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May 14, 2016

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new paper authored by Kevin Barry now available via SSRN. Here is the abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.”  Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, forty years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment.  Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment.  That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

May 14, 2016 at 05:15 PM | Permalink


Interesting article.

Good cite to another explaining how the "5A says DP is okay" argument is confused.

Posted by: Joe | May 14, 2016 11:11:47 PM

Dignity is a word devoid of any intellectual content or meaning whatsoever. It is an empty vessel which is filled by the whims of the speaker. It short, it is an incantation which takes on mystical significance when uttered by a person garbed in a black robe.

Kennedy's version of the "I win" button of internet lore.

Posted by: Daniel | May 15, 2016 12:12:31 AM

"Dignity is a word devoid of any intellectual content or meaning whatsoever."

The article refutes this and cites some other literature that goes further on the point. But, basically, sure the word can mean various things, it has a certain protean quality that results in choices depending on the experiences of the society in question. So do words of a constitutional nature like "liberty" or "cruel." There is a certain choice being made here over time depending on the community's experiences, legal judgments and so forth.

And, "dignity" wasn't something Kennedy invented. There are hundreds are citations in Supreme Court opinions alone going back long before he came on the Court. The breadth of the "problem" of a word devoid of any intellectual content or meaning whatsoever should be recognized as more than a Kennedy "I win" project. The application to the 8A, e.g., is seen in Trop v. Dulles (1958):

"The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

The Lieber Code instructing the Union Army during the Civil War included this provision:

"Art. 75.

Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety."

It is currently a basic requirement in human rights law: https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule90

It also arises in application of 4th Amendment law, e.g., protecting dignity during searches, particularly strip searches. etc.

At the very least, we have a problem here going far beyond Kennedy. A concept found in national and international law for centuries has no intellectual content or meaning whatsoever.

Posted by: Joe | May 15, 2016 11:28:23 AM

Also, as with other words like "liberty" etc., those in "black robes" aren't the only people who understand "dignity" to have meaning. It is a basic concept in society overall. To the degree various words and concepts have some sort of "mystical significance," likewise, the target here should be rather open-ended.

Posted by: Joe | May 15, 2016 11:41:03 AM

The "dignity doctrine" seems to me to be a prime example of judge-made law. I agree with the late Justice Scalia, with whom I often disagreed, that the Constitution does not prohibit capital punishment. In fact, it explicitly recognizes it. Arguments about the death penalty are political, not legal, in my layman's opinion.

Posted by: Gary | May 15, 2016 3:44:24 PM

@joe. I agree that the problems with the word dignity go far beyond Kennedy. I made no claim that he invented the term. I do believe, however, that what Kennedy has done is innovate. Prior paeans to dignity before Kennedy in US law were used to buttress or explain results. Kennedy is the first American jurist who has used dignity to justify results. That distinction is a fine one but nonetheless important. It's important because the word dignity itself appears no where in the text of our Constitution.

Posted by: Daniel | May 15, 2016 10:59:53 PM

Does the article discuss the Sixth Commandment? Thou Shalt Not Kill. All those so called Christians on the Supreme Court. Oh, wait a minute. Well, lets quiz a Catholic. Ask Scalia. Oh, yeah, he is gone. What is Roberts religion? Maybe he will fess up. When your time comes for the interview with Saint Peter they already know at the Pearly Gates what state you came from. If you are from Texas and did not oppose the death penalty vocally in your home state then you will get sent to Hell. Of course if you do not believe in God and all that hogwash then just keep on killing.

Posted by: BarkinDog | May 16, 2016 9:03:04 AM

"Kennedy is the first American jurist who has used dignity to justify results."

How exactly is this true when "dignity" specifically is a component of law going back at least to the 19th Century? Dignity itself -- not merely to "buttress" or "explain" -- was and is a specific aspect of law. "Dignity" specifically is protected here and abroad. If the term is so intellectually or otherwise meaningless as you say, that is a major problem.

Regardless, Kennedy doesn't merely rest on dignity. He uses it to help explain the meaning of terms like "cruelty" or "equal protection." He is not the originator of this as even my single citation of an opinion from the 1950s shows. And, to the extent he relies on it a lot, at the very least, Justice Brennan did as well.

Posted by: Joe | May 16, 2016 3:33:01 PM

BarkinDog -- the commandment is generally understood to be "thou shall not murder."

The Bible allows killing, including in punishment for a crime, many places.

Some want to apply it more strictly, like Jesus is said to have commanded mere lust in one's heart is adultery. But, a more limited view is quite rational.

Posted by: Joe | May 16, 2016 3:36:11 PM

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