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

Kevin M. Barry

Quinnipiac University - School of Law

March 31, 2014

Florida Law Review, Vol. 66, No. 313, 2014

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.

Number of Pages in PDF File: 75

Keywords: death penalty, capital punishment, prospective-only, sacrifice, abolition

JEL Classification: K14

Open PDF in Browser Download This Paper

Date posted: January 8, 2013 ; Last revised: November 22, 2014

Suggested Citation

Barry, Kevin M., From Wolves, Lambs (Part 1): The Eighth Amendment Case for Gradual Abolition of the Death Penalty (March 31, 2014). Florida Law Review, Vol. 66, No. 313, 2014. Available at SSRN: http://ssrn.com/abstract=2197822 or http://dx.doi.org/10.2139/ssrn.2197822

Contact Information

Kevin M. Barry (Contact Author)
Quinnipiac University - School of Law ( email )
275 Mt. Carmel Ave.
Hamden, CT 06518
United States
Feedback to SSRN

Paper statistics
Abstract Views: 943
Downloads: 138
Download Rank: 154,378

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.172 seconds