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May 5, 2014

Notable two-part account of constitutional "Case for Gradual Abolition of the Death Penalty"

I just learned about these two notable new articles by Kevin Barry available via SSRN:

From Wolves, Lambs (Part 1): The Eighth Amendment Case for Gradual Abolition of the Death Penalty

This spring, the Connecticut Supreme Court will decide a novel issue in all of modern death penalty jurisprudence. The issue is this: Can a state gradually abolish its death penalty, that is, can it leave in place the sentences of those currently on death row but abolish the death penalty going forward? This Article argues that it can. As a matter of statutory construction, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although constitutional questions are admittedly less straightforward, prospective-only repeal does not offend either the Eighth or Fourteenth Amendments. The death penalty remains constitutional per se under the Eight Amendment, and “as applied” challenges fare no better. Under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, rational reasons abound for abolishing the death penalty while maintaining death row intact.

Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is it wise to abolish prospective-only? The second is a moral one: Is it right to tell those who committed murder on Day 1 that they must remain on death row, while eliminating the death penalty for those who commit murder on Day 2? This Article answers both questions in the affirmative. Prospective-only death penalty repeal promises both retraction of the death penalty and preservation of the status quo and is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.

From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty

Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.

Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future. If the Connecticut Supreme Court upholds Connecticut’s repeal in Santiago, the way will be clear for other courts to uphold legislation abolishing the death penalty prospective-only.

This Article is the second of two articles examining the emergence of this new trend of “gradual abolition” of the death penalty, by which state legislatures eliminate the death penalty for future crimes only and the executive retains it for those on death row. It begins with a discussion of the legislature’s strategic decision to abolish the death penalty prospective-only — a time-tested strategy that helped to end another infamous American institution: slavery. This Article next turns from the legislature to the courts, concluding, that prospective-only repeal does not violate the Fourteenth Amendment; rational reasons abound for repealing the death penalty for some but not all, and due process is not offended by retaining death row intact.

Lastly, this Article points the way forward — to the future of those who remain on death row and capital offenders who await sentencing post-repeal. It argues that, post-repeal, the executive should grant clemency and capital sentencing juries should return life sentences — not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order. Indeed, there is no record of a death row prisoner ever being executed after prospective-only repeal of the death penalty; hopefully, there never will be.

May 5, 2014 at 10:48 AM | Permalink


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This is one of the gits which Peter, alpino, et al would
shelter, in their Indiscriminate bias against capital punishment.
Remember, “executions, whether botched or efficiently carried out, represent a behavior that is profoundly inhuman” – Posted by: peter | Apr 30, 2014 3:33:45 AM

|Man sentenced to life in Colorado triple slaying|
PUEBLO, Colo. - Harry Mapps pleaded guilty Thursday to killing Reginald and Kim Tuttle and their adult daughter Dawn Roderick and setting their house
in the small town of Rye on fire.
 When [Judge] Alexander asked if he shot his victims, Mapps said: "Yes, your honor, I did."
 The Tuttles had taken Mapps in as a guest and gave him a job with their trucking company
 Mapps quickly emerged as a suspect in the case but wasn't captured until a month later at a motel in Roland, Okla.
 [DA Chostner] said Mapps' age and poor health factored into his decision not to pursue the death penalty since appeals in such cases can last up to 20 years.
 Before setting the fire, investigators say Mapps took financial documents and firearms from the home. He also was photographed cashing fraudulent checks from
the Tuttles' business.

Posted by: Adamakis | May 5, 2014 2:16:26 PM

"not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order."

Dr. William Petit couldn't be reached for comment.

Posted by: federalist | May 6, 2014 12:10:04 AM

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