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The Death Penalty & the Dignity Clauses
Kevin Barry*
“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, 40 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 United
States 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 A mendments—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.
* Professor, Quinnipiac University School of Law. Thanks to Joseph Blocher, Neal
Feigenson, Maxine Goodman, Ben Jones, Stan Krauss, Linda Meyer, Robert Smith, Tobin
Sparling, and participants at the Faculty Forum at Quinnipiac University School of Law for
helpful comments and conversations. Thanks also to Alyson Bisceglia, Jessica Gouveia, and Sarah
Ryan for their research assistance.
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384 IOWA LAW REVIEW [Vol. 102:383
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.
I. INTRODUCTION ............................................................................ 385
II. THE CONCEPT OF DIGNITY ........................................................... 392
III. THE DOCTRINE OF DIGNITY .......................................................... 394
A. DIGNITY AND THE FOURTEENTH AMENDMENT .......................... 395
1. The Dignity of Liberty and LGBT Rights .................. 396
2. The Dignity of Equality and LGBT Rights ................ 398
B. DIGNITY AND THE EIGHTH AMENDMENT .................................. 400
1. The Dignity of Liberty and the Death Penalty .......... 401
2. The Dignity of Equality and the Death Penalty ........ 403
3. The Dignity of Life and the Death Penalty ............... 404
i. A Qualified Dignity of Life ...................................... 407
ii. An Unqualified Dignity of Life ................................ 411
IV. CONTRADICTION AND COHERENCE ............................................... 416
A. THE FRAMEWORK FOR ENDING THE DEATH PENALTY ................ 418
1. Unacceptable to Contemporary Society .................... 418
2. No Legitimate Penological Purpose .......................... 422
i. Inconsistency ........................................................... 422
ii. Inefficiency .............................................................. 425
iii. Innocence ................................................................ 427
B. OBJECTIONS ............................................................................. 428
1. Dignity Cannot Be Given ............................................ 428
2. Dignity Should Not Be Given to Murderers .............. 430
3. Dignity is Given ........................................................... 431
4. The Dignity of Life is at Odds with the Fifth
Amendment ................................................................. 431
5. Judicial Abolition of the Death Penalty is
Undemocratic .............................................................. 433
6. Judicial Abolition of the Death Penalty is
Irreversible .................................................................. 435
i. Constitutional Amendment ...................................... 436
ii. Statutory Reenactment and Invitation to Overrule .... 438
V. AFTER THE DEATH PENALTY ............................................................. 440
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2017] THE DEATH PENALTY AND THE DIGNITY CLAUSES 385
VI. CONCLUSION ................................................................................... 443
I. INTRODUCTION
“I believe that a majority of the Supreme Court will one day accept that when
the state punishes with death, it denies the humanity and dignity of the
[condemned] . . . .”1
In 2011, a man named James Obergefell and his dying partner, John
Arthur, were wed in a medical transport plane on a tarmac in Maryland.2
Their home state of Ohio did not permit the two men to be married, so they
traveled to Maryland—one of a handful of states that did.3 John died three
months later.4 On his Ohio death certificate, James was not permitted to be
listed as the surviving spouse; the two men were “strangers even in death.”5
On June 26, 2015, in Obergefell v. Hodges, the U.S. Supreme Court held that
state laws prohibiting recognition of same-sex marriages are
unconstitutional.6 According to the Court, there is dignity in the freedom to
marry, and in equal treatment under our marriage laws—a dignity the
Constitution protects.7 To prohibit marriage is to deny that dignity in
violation of the Constitution.
On September 30, 2015, the State of Georgia executed Kelly Gissendaner
for recruiting a man with whom she was romantically involved to murder her
husband, Douglas.8 During her 18 years on death row, Kelly graduated from
a theology program in prison and mentored other female prisoners.9 She
sought, and eventually received, the forgiveness of her and Douglas’ three
children, whose pleas for commutation were rejected by Georgia’s parole
1. William J. Brennan, Jr., The 1986 Oliver Wendell Holmes, Jr. Lecture, Constitutional
Adjudication and the Death Penalty: A View from the Court, 100 HARV. L. REV. 313, 331 (1986).
Interestingly, and perhaps significantly, Justice Brennan used the word “victim” to refer to the
condemned person. See id. at 330–31 (“A punishment is ‘cruel and unusual’ if it does not comport
with human dignity. The calculated killing of a human being by the state involves, by its very
nature, an absolute denial of the executed person’s humanity and thus violates the command of
the eighth amendment.”). To avoid confusion between the c ondemned person and the victim of
the crime for which the person was condemned, I have substituted “condemned” for “victim.”
2. Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015).
3. Id.
4. Id.
5. Id.
6. Id. at 2604–05.
7. See id. at 2608.
8. Tracy Connor et al., Georgia Woman Kelly Gissendaner Sings ‘Amazing Grace’ During
Execution, NBC NEWS (Sept. 30, 2015, 8:41 AM), http://www.nbcnews.com/storyline/lethal-
injection/pope-urges-halt-execution-georgia-woman-kelly-gissendaner-n435566 (“She was the
first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were
executed even though they did not physically partake in a murder.”).
9. Id.