This spring, the Connecticut Supreme Court will take up a novel question, unprecedented in modern death penalty jurisprudence: Can a state gradually abolish its death penalty? Restated, can it leave the sentences of those currently on death row in place but abolish the death penalty going forward? This Article argues that it can. On simple statutory construction grounds, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although the constitutional considerations are admittedly less straightforward, prospective-only repeals do not offend the Constitution. The death penalty remains constitutional per se under the Eighth Amendment, and “as-applied” challenges under Atkins and Furman fare no better. Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is prospective-only abolishment of death-penalty legislation wise? The second is a moral one: Is it right to leave those who committed murder on day one on death row, while eliminating the death penalty for those who commit murder on day two? This Article answers both questions in the affirmative. Prospective-only death penalty repeal offers both retraction of the death penalty and preservation of the status quo. It is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital