Authors

Eric M. Freedman, Hofstra University Maurice A. Deane School of Law

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

Abstract

Reformers currently proposing the abolition of capital punishment by federal legislation have only targeted the federal death penalty. They are aiming too low. Concerns about the roughly 50 prisoners facing execution by the federal government should not cause advocates to ignore the approximately 2,400 on the combined Death Rows of the states. 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.

If death penalty reformers focus their advocacy efforts on a federal statute they may achieve surprising success. Congressional representatives from abolitionist states may support their efforts, and so may some 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.

Repository Citation

Eric M. Freedman, No Need to Wait: Congress Has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States, 32 Wm. & Mary Bill Rts. J. 1049 (2024), https://scholarship.law.wm.edu/wmborj/vol32/iss4/10