Reclaiming the Gavel: Making Sense out of the Death Penalty Debate in State Legislatures


When the United States Supreme Court held in Furman v. Georgia that the process of death sentencing constituted cruel and unusual punishment, abolitionists were certain that the death penalty would eventually be found unconstitutional per se. Even when the Supreme Court, in 1976, declared that new state laws implementing the death penalty did not violate the eighth and fourteenth amendments, we continued to believe that a systematic and well-planned legal strategy would abolish the death penalty.

But a review of Supreme Court holdings in the last three years makes it clear that the Court, rather than moving to restrict the death penalty, is sweeping away barriers to its use. The Court has taken two approaches toexpedite the use of the death penalty. Several decisions have restricted prisoners’ rights to have their cases reviewed on habeas corpus. Additionally, the Court has transferred to the political arena decisions which heretofore have been well within the judicial realm. Thus, challenges to racism in the implementation of the death penalty, the execution of juvenile offenders, and the execution of the mentally retarded, have been shunted back to the very state legislatures that created the systems being challenged.

The Supreme Court’s willingness to ignore significant questions of fairness, its determination to knock down barriers to the death penalty, and its insistence that the debate be made political rather than legal, compel the abolitionist community to redirect its strategy.

Given the success the movement has had in keeping individual prisoners from execution through legal challenge, it is not surprising that we have failed to develop a sophisticated legislative strategy. Until now, our voices have been mere whispers in State Houses. It is time to become a chorus.

This paper seeks to lay some groundwork for the development of a coherent legislative and political strategy for abolition. Based on the efforts of the National Coalition to Abolish the Death Penalty [hereinafter NCADP], and on my experience as the Executive Director of that organization, this Article provides an overview of death penalty-related legislation at the state level, gives a perspective on the political roots of the debate, and suggests proposals for the future.

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