The Federal Death Penalty and the Constitutionality of Capital Punishment

50 Criminal Law Bulletin 1388 (2014) (c) 2014 Thomson Reuters/West

Chapman University Law Research Paper No. 13-12

46 Pages Posted: 5 Oct 2013 Last revised: 11 Aug 2015

Scott Howe

Chapman University, The Dale E. Fowler School of Law

Date Written: August 3, 2013

Abstract

The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment. In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions. These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states. However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications. The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder. However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice support a national consensus favoring capital punishment for ordinary murder.

Keywords: Capital Punishment, Death Penalty, Cruel and Unusual Punishment, Proportionality

Suggested Citation

Howe, Scott, The Federal Death Penalty and the Constitutionality of Capital Punishment (August 3, 2013). 50 Criminal Law Bulletin 1388 (2014) (c) 2014 Thomson Reuters/West; Chapman University Law Research Paper No. 13-12. Available at SSRN: https://ssrn.com/abstract=2335757

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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