The Death Penalty & the Dignity Clauses

62 Pages Posted: 11 May 2016 Last revised: 12 Jan 2017

See all articles by Kevin M. Barry

Kevin M. Barry

Quinnipiac University - School of Law

Date Written: April 4, 2016

Abstract

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

Keywords: Death penalty, capital punishment, dignity, Eighth Amendment, Glossip, abolition, LGBT, Fourteenth Amendment, Obergefell, Windsor

JEL Classification: K14

Suggested Citation

Barry, Kevin M., The Death Penalty & the Dignity Clauses (April 4, 2016). Iowa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2777847 or http://dx.doi.org/10.2139/ssrn.2777847

Kevin M. Barry (Contact Author)

Quinnipiac University - School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
182
Abstract Views
1,372
Rank
299,048
PlumX Metrics