"The Death Penalty & The Fundamental Right to Life"

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

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment.  But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process.  The legal literature has followed suit, scarcely addressing the issue.

This Article makes the case for why the death penalty violates the fundamental right to life.  It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government.  It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution: arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring.  Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights.

Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon.  The road less traveled is substantive due process: the right to life of the condemned.  On the long road toward abolition, this Article argues that two lanes are better than one.