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October 25, 2024

"No Need To Wait: Congress Has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States"

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

Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice.  The statute would be congruent and proportional legislation to remedy and prevent an amply documented history of violations of rights that the Court has long recognized as fundamental concerns.

Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.

Advocacy efforts supporting a federal statute abolishing capital punishment may achieve surprising success. Congressional representatives from abolitionist states may vote for one, and so may some legislators from retentionist states, buttressed by the growing number of political conservatives who support abolition. In any event, the campaign itself may strengthen the abolitionist cause.

October 25, 2024 at 02:09 PM | Permalink

Comments

Good luck with that.

Posted by: federalist | Oct 25, 2024 2:18:09 PM

This argument fails in light of how the Supreme Court has previously interpreted Section 5 in the context of the Religious Freedom Restoration Act. In the cases challenging that act, the Supreme Court found that Congress could only use Section 5 to enforce constitutional rights not to create them. So, if the Congressional Act misinterprets the Bill of Rights (in the eyes of the Supreme Court), the Act is unconstitutional. As such, taking as a given that the death penalty is not barred by the Bill of Rights or the Fourteenth Amendment, Congress can't use Section 5 of the Fourteenth Amendment to bar the death penalty.

Posted by: tmm | Oct 27, 2024 10:51:58 AM

You might want to read the article. There is nothing unconsitutional about literacy tests or poll taxes but Congress can bar them if this is a congruent and proportional method of enforcing other recognized constititutional rights. SCOTUS specifically reaffirmed that in the spring of 2023, repeating that the voting rights act could bar states from ballot barriers with racially discriminatory effects even though the Constitution only bars ones with racially discriminatory effects.
In this case, ending the death penalty is a congruent and proportional response to the states' massive record of violating a number of constitutional rights that the Court has recognized beginning in the 1930's.
E.M.F.

Posted by: Eric M. Freedman | Oct 27, 2024 12:12:48 PM

This makes the Trump fake electors scheme look believable in comparison.

Although Doug does a disservice by silencing dissent on his blog, he does a great service by outing the nut jobs.

Posted by: TarlsQtr | Oct 27, 2024 3:20:22 PM

Although I agree with tmm that the argument should fail--I don't think you can take away a perfectly legal criminal penalty through Section 5--the enforcement power does allow the banning of certain practices.

Posted by: federalist | Oct 28, 2024 9:20:40 AM

And by the same logic Congress can use section 5 to enact a nationwide abortion ban to protect life.

Posted by: Da Man | Oct 28, 2024 10:06:46 AM

It also reminds me of Justice Kennedy's concurrence in Croson, where he questioned how it could be constitutional to use section 5 to authorize future discrimination (in the form of race conscious governmental decisions) to remedy past discrimination:

The process by which a law that is an equal protection violation when enacted by a State becomes transformed to an equal protection guarantee when enacted by Congress poses a difficult proposition for me; but as it is not before us, any reconsideration of that issue must await some further case.

Judge Posner was more direct about it:

[S]ection 5 authorizes Congress to “enforce” the provisions of the amendment. It is difficult to see how authorizing a state to violate the amendment could be thought a means of enforcing the amendment.

Posted by: Da Man | Oct 29, 2024 2:11:45 PM

Posner changed his tune on race-based discrimination as the years went on. He authored an opinion that allowed Illinois to consider race in promotions on the basis that the juveniles would look up to black guards. This case ignored Palmore v. Sidoti.

Posted by: federalist | Oct 29, 2024 2:36:35 PM

Here's the case I mention above. Truly awful decision.

https://scholar.google.com/scholar_case?case=15095726801144065464&q=illinois+juvenile+guard+promotion+equal+protection&hl=en&as_sdt=4,112,127

Posted by: federalist | Oct 29, 2024 2:43:09 PM

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