CONSTITUTIONAL COLLISION: THE FUTURE OF THE DEATH PENALTY

Author: Benjamin Wehrle, Associate Editor

On January 12th, 2023, The United States (U.S.) Attorney’s Office for Western New York announced that they would be seeking the death penalty for Payton Gendron, who killed ten people in a racially motivated shooting.[i] However, the death penalty in the State of New York has been dormant since the New York Court of Appeals found it to be unconstitutional in 2004.[ii] Additionally, from the founding of our country in 1776 to 1993, there was only one case of the federal government putting someone to death in a non-death penalty state.[iii] There has been a recent shift, however, to where more federal death penalty cases are being filed in non-death penalty states.[iv]

The rise of these death penalty cases creates a constitutional issue. Specifically, is the application of the death penalty by the federal government a violation of the 8th Amendment’s prohibition on cruel and unusual punishment?[v] Under the historical interpretation of the 8th Amendment, it can be understood that its purpose is to protect the states’ function in the criminal justice system and prevent federal overreach.[vi] Supporters of the historical interpretation of the 8th Amendment shifted the focus of the original Bill of Rights towards individual rights and away from the ideology of federalism, popular sovereignty, and collective rights that underpinned our nation’s founding.[vii]

In recent years, this argument has continued to be rejected by courts across the country.[viii] It has been held that applying the 8th Amendment in turn creates a state-by-state disparity hindering the equal benefit that the U.S. Constitution is supposed to provide to all people.[ix]  For example, a federal defendant in Texas would be facing the death penalty whereas a defendant in Connecticut convicted of the same offense would not.[x]

Those focusing on the conflicts of a state’s law with federal law, however, are not seeing the forest through the trees. Instead of analyzing a singular state’s prohibition, what needs to be focused on is the aggregation of states abolishing the death penalty and how it interplays with current 8th Amendment jurisprudence. Of initial relevance is the “evolving decency” analysis, which courts apply in deciding whether something constitutes cruel or unusual punishment under the 8th Amendment.[xi] In deciding this, courts use objective factors that demonstrate the public attitude towards certain sentences. [xii] Such factors include history and precedent, legislative attitudes, and the response of juries reflected in sentencing decisions.[xiii] In Atkins v. Virginia, 536 U.S. 304 (2002), for example, the Court recognized the consistent shift to states prohibiting the execution of the mentally retarded.[xiv] Further, the Court noted that even in states where the execution of the mentally retarded was permitted, these types of executions rarely happened.[xv] These factors demonstrated that the execution of the mentally retarded had become truly unusual and a “national consensus” had developed against it.[xvi]

The Atkins “national consensus”[xvii] ruling is specifically significant in conjunction with the increasing number of moratoriums and legislative proposals to abolish the death penalty. Currently, 23 states have abolished the death penalty and 6 states have issued pauses on executions.[xviii] Moreover, 9 states have put forth legislation that would abolish the death penalty in their state.[xix] Notably, most of the legislation in these states has been sponsored by both Republicans and Democrats.[xx] As states continue to push for legislation repealing the death penalty, therefore, it appears that a “national consensus”[xxi] under Atkins will eventually develop against the use of the death penalty itself. Given that roughly half of states (23) have already have abolished the death penalty,[xxii] there is arguably a possibility that a “national consensus” against the death penalty will even develop in our lifetimes. When that consensus is reached, the death penalty might possibly be found to be outside of our evolving standards of decency, and thus unconstitutional under the 8th Amendment.

[i] Buffalo shooter who killed 10 at Tops supermarket to face death penalty in federal case, CBS NEWS (Jan 12. 2024), https://www.cbsnews.com/news/buffalo-shooting-tops-supermarket-payton-gendron-death-penalty/.

[ii] William Glaberson, 4-3 Ruling Effectively Halts Death Penalty in New York, NEW YORK TIMES (June 25, 2004), https://www.nytimes.com/2004/06/25/nyregion/4-3-ruling-effectively-halts-death-penalty-in-new-york.html (there have been minimal to no efforts since this case to create a death penalty statute in compliance with New York state law).

[iii] Michael J.Z. Mannheimer, The Coming Federalism Battle in the War Over the Death Penalty, 70 ARK. L. REV. 309, 312 (2017).  

[iv] Id. at 315.

[v] Michael J.Z. Mannheimer, When the Federal Death Penalty is “Cruel and Unusual”, 74 U. CIN. L. REV 819, 829.

[vi] Id. at 849-850.

[vii] Id. at 854.

[viii] See U.S. v. Jacque, 2011 U.S. Dist. LEXIS 99641 at *12-15 (D. Vt. 2011), U.S. v. Johnson, 900 F. Supp. 949, 963 (N.D. Iowa 2012), and U.S. v. Pleau, 2013 U.S. Dist, LEXIS 55023, at *9 (D.R.I. 2013).

[ix] U.S. v. Aquart, 912 F.3d 1, 68 (2d Cir. 2018).

[x] Id.

[xi] Trop v. Dulles, 356. U.S. 86, 101 (1958).

[xii] Coker v. Georgia, 433 U.S. 584, 592 (1977).

[xiii] Id.

[xiv] Atkins v. Virginia, 536 U.S. 304, 313-315 (2002).

[xv] Id. at 316.

[xvi] Id.

[xvii] Id.

[xviii] State by State, Death Penalty Information Center, https://deathpenaltyinfo.org/states-landing (last visited March 10, 2024).

[xix] Recent Legislative Activity, DEATH PENALTY INFORMATION CENTER, https://deathpenaltyinfo.org/facts-and-research/recent-legislative-activity (last visited March 10, 2024).

[xx] Id.

[xxi] Atkins v. Virginia, 536 U.S. 304, 313-315 (2002).

[xxii] State by State, Death Penalty Information Center, https://deathpenaltyinfo.org/states-landing (last visited March 10, 2024).