The Death Penalty & the Dignity Clauses

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

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 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. * 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. 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. D IGNITY AND THE F OURTEENTH A MENDMENT .......................... 395 1. The Dignity of Liberty and LGBT Rights .................. 396 2. The Dignity of Equality and LGBT Rights ................ 398 B. D IGNITY AND THE E IGHTH A MENDMENT .................................. 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. T HE F RAMEWORK FOR E NDING THE D EATH P ENALTY ................ 418 1. Unacceptable to Contemporary Society .................... 418 2. No Legitimate Penological Purpose .......................... 422 i. Inconsistency ........................................................... 422 ii. Inefficiency .............................................................. 425 iii. Innocence ................................................................ 427 B. O BJECTIONS ............................................................................. 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 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 condemned 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.386 IOWA LAW REVIEW [Vol. 102:383 board. 10 As reported by a witness to the execution, Kelly was very emotional prior to the execution. “She was crying and then she was sobbing and then [she] broke into [ Amazing Grace ] as well as into a number of apologies . . . . When she was not singing, she was praying.” 11 Kelly Gissendaner’s execution is upsetting to some, but not for the reasons we often associate with the death penalty. She was not a person of color like so many on death row; she was white. 12 She was not innocent, like the 156 people who have been exonerated from death row; she was guilty of the crime for which she was convicted (although she did not actually commit the murder—her former boyfriend did). 13 The 18-year period she spent on death row was not beyond the pale; it was average. 14 And her execution was not botched; she was killed without incident. 15 Her execution is upsetting for the same reason that Ohio’s refusal to recognize James Obergefell’s marriage to John Arthur is upsetting—it is a humiliation, a deprivation of dignity. It is not, however, unconstitutional. The Constitution is not violated by strapping a sobbing, praying woman to a gurney and killing her. 16 Kelly Gissendaner’s execution, in the wake of James Obergefell’s soaring legal victory, brings into stark relief dignity’s uncertain place in our constitutional scheme. Some argue that dignity has absolutely no place in our constitutional scheme. Chief Justice Roberts and Justice Thomas certainly seem to think so. The Constitution contains no “dignity clause,” they say. 17 As a textual matter, 10. Id. ; see also Moni Basu, Clemency Board to Review Decision as Children Plead for Death Row...