Wednesday, June 3, 2020
Michael Conklin (Angelo State University) has posted The Road Less Traveled: Abolishing the Death Penalty on Substantive Due Process, Fundamental Right to Life Grounds (Loyola University of Chicago Law Journal Online, Jan. 16, 2020) on SSRN. Here is the abstract:
Kevin M. Barry’s The Death Penalty and the Fundamental Right to Life lays out an often overlooked argument against the death penalty. Barry posits that the death penalty is unconstitutional, not on Eighth Amendment cruel and unusual punishment grounds, but on a theory of violating the fundamental right to life from substantive due process. As Barry is quick to point out, this lesser-known argument received additional support from the rationale provided in the Obergefell v. Hodges decision.
(1) the Constitution explicitly guarantees the fundamental right to life to prisoners,
(2) there is no compelling state interest that rises to the strict scrutiny standard to justify executing these prisoners, and
(3) the death penalty is not narrowly tailored to serve a compelling state interest.
Barry lays out this argument effectively, explains its superiority to the more common abolitionist method of using the Cruel and Unusual Punishment Clause, and addresses potential arguments that are likely to be used against it. These include the argument that recognizing death row inmates’ right to life will undermine the right to an abortion. This Essay primarily focuses not on critiquing the underlying argument, but on the manner in which Barry presents it. He does not play to the strength of the argument, which is its ability to avoid getting bogged down in nuanced discussions only tenuously related to the death penalty. Despite this significant advantage, Barry does just that; he discusses issues such as polling results, race, international law, and religious teachings, which are largely irrelevant to the substantive due process argument for abolishing the death penalty.