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

This spring, the Connecticut Supreme Court will take up a novel question, unprecedented in modern death penalty jurisprudence: Can a state gradually abolish its death penalty? Restated, can it leave the sentences of those currently on death row in place but abolish the death penalty going forward? This Article argues that it can. On simple statutory construction grounds, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although the constitutional considerations are admittedly less straightforward, prospective-only repeals do not offend the Constitution. The death penalty remains constitutional per se under the Eighth Amendment, and “as-applied” challenges under Atkins and Furman fare no better. 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 prospective-only abolishment of death-penalty legislation wise? The second is a moral one: Is it right to leave those who committed murder on day one on death row, while eliminating the death penalty for those who commit murder on day two? This Article answers both questions in the affirmative. Prospective-only death penalty repeal offers both retraction of the death penalty and preservation of the status quo. It 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. * Professor, Quinnipiac University School of Law. This Article is adapted from the written and oral testimony of Quinnipiac University School of Law’s Civil Justice Clinic in support of prospective-only legislation that abolished Connecticut’s death penalty in 2012. See Testimony of Quinnipiac University School of Law Civil Justice Clinic in Support of Raised Bill No. 280, Judiciary Comm., 2012 Gen. Assemb. (Conn. March 14, 2012), http://www.cga.ct.gov/2012/ JUDdata/Tmy/2012SB-00280-R000314-Christine%20Gertsch-%20Quinnipiac%20University% 20School%20of%20Law-TMY.PDF; JUD Committee Hearing Transcript for March 14, 2012 Gen. Assemb. (Conn. 2012), http://www.cga.ct.gov/2012/JUDdata/chr/2012JUD00314-R001100CHR.htm. Thanks to the Connecticut Office of the Chief Public Defender and the Connecticut Office of the Chief State’s Attorney for their outstanding advocacy and thoughtful consideration of an earlier draft of this Article. Thanks also to: participants at the Faculty Forum at Quinnipiac University School of Law for helpful conversations; the Florida Law Review staff for excellent editorial assistance; and Andrea Dupre, Christine Gertsch, and Trevor Bradley for their research assistance. 1 Barry: From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradua Published by UF Law Scholarship Repository, 314 FLORIDA LAW REVIEW [Vol. 66 OPENING STATEMENT 315 I. THE UTILITY OF PROSPECTIVE-ONLY REPEAL 327 A. Prospective-Only Repeal’s Long History 327 B. Prospective-Only Repeal’s Uncertain Future 329 II. THE MORALITY OF PROSPECTIVE-ONLY REPEAL 332 III. THE LEGALITY OF PROSPECTIVE-ONLY REPEAL 336 A. Clearly Prospective-Only Death Penalty Repeals Are Not Given Retroactive Effect 336 1. Retroactivity Basics 336 2. Retroactivity and the Death Penalty 344 a. Cases Refusing to Give Retroactive Effect to Prospective-Only Repeal 344 b. Cases Giving Retroactive Effect to Prospective-Only Repeal Pursuant to Rules of Statutory Construction 352 3. Summary of Statutory Construction Analysis ........ 358 B. Prospective-Only Death Penalty Repeal Does Not Violate the Eighth Amendment 358 1. Unconstitutional Per Se 360 2. Unconstitutional as Applied: Atkins and Its Progeny 361 a. There Is No National Consensus Against Prospective-Only Repeal 364 i. “45:3” 364 ii. “13:3” 367 iii. “3:3” 369 iv. “0:50” 369 b. Prospective-Only Repeal Furthers Retribution and Deterrence 371 c. Cases Giving Retroactive Effect to Prospective-Only Repeal Pursuant to the Eighth Amendment or State Corollaries ......... 374 3. Unconstitutional as Applied: Furman Arbitrariness 378 4. Policy Considerations Regarding the Eighth Amendment’s Reach 383 5. Summary of Eighth Amendment Analysis 385 CLOSING ARGUMENT 385 2 Florida Law Review, Vol. 66, Iss. 1 [], Art. 6 http://scholarship.law.ufl.edu/flr/vol66/iss1/6 2014] FROM WOLVES, LAMBS (PART I) 315