The Death Penalty & the Dignity Clauses

• Author: Kevin Barry
• Position: Professor, Quinnipiac University School of Law
• Pages: 383-444

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383

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.

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* 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

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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.