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

Abstract

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.