NEW SCHOLARSHIP: History Says Those Left on Death Row After Capital Punishment Statutes are Struck Down or Repealed Should Not be Executed

“What should become of indi­vid­u­als who are await­ing exe­cu­tion fol­low­ing the repeal or judi­cial inval­i­da­tion of cap­i­tal pun­ish­ment leg­is­la­tion?,” ask authors James R. Acker (pic­tured, left) and Brian W. Stull (pic­tured, right) in a recent arti­cle pub­lished in the Akron Law Review. If his­to­ry is a guide, they say, the pris­on­ers’ lives should be spared.

Acker is an emer­i­tus dis­tin­guished teach­ing pro­fes­sor in the University of Albany’s School of Criminal Justice and Stull is a senior staff attor­ney at the American Civil Liberties Union Capital Punishment Project. In Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated, pub­lished as part of the law journal’s 2021 Criminal Justice Reform Issue, they ana­lyzed what hap­pened to pris­on­ers who were on death row in each of the 30 U.S. states that, at some point in their his­to­ry, abol­ished cap­i­tal pun­ish­ment. The researchers found that while death penal­ty repeal laws fre­quent­ly abol­ish the death penal­ty only for future crimes or future cas­es, no one has ever been exe­cut­ed in the United States after the death penal­ty has been abol­ished in their juris­dic­tion. That out­come was the same, they not­ed, whether abo­li­tion occurred as a result of leg­isla­tive repeal or judi­cial inval­i­da­tion of the state’s cap­i­tal punishment statute.

Acker and Stull also sur­veyed inter­na­tion­al prac­tices, look­ing for post-abo­li­tion exe­cu­tions in Canada, the United Kingdom, Europe, and oth­er coun­tries world­wide. Again, they found no exam­ples of pris­on­ers being exe­cut­ed under ves­ti­gial death-penal­ty statutes. And they inves­ti­gat­ed whether any 16- or 17-year-old death-sen­tenced offend­ers were exe­cut­ed in states that sub­se­quent­ly raised the min­i­mum age of death-penal­ty eli­gi­bil­i­ty to 18. Here, too, the answer was none.

The authors take no posi­tion on what the fate should be for indi­vid­u­als left on death row after a non-retroac­tive abo­li­tion of the death penal­ty. “[D]isagreements about the pur­pos­es and fair admin­is­tra­tion of crim­i­nal pun­ish­ment, polit­i­cal con­sid­er­a­tions, the inter­ests of mur­der vic­tims’ sur­vivors, and oth­er fac­tors com­bine to make answers to this ques­tion elu­sive,” they write. However, they say, ​“in prac­tice, the issue has been resolved with strik­ing uni­for­mi­ty. Historically, in this coun­try and through­out the world, the appar­ent uni­ver­sal prac­tice has been to spare indi­vid­u­als from exe­cu­tion if they are under sen­tence of death at the time cap­i­tal pun­ish­ment laws are repealed or invalidated.”

“[T]hese actions,” they write, ​“speak loud­ly, and quite arguably more loud­ly than words, as actions often do.”

Acker and Stull reviewed the prac­tices in every state in the U.S. each time any state abol­ished the death penal­ty, includ­ed states that sub­se­quent­ly reau­tho­rized cap­i­tal pun­ish­ment under new or amend­ed statutes. Though some states resumed exe­cu­tions under their new statutes, the authors found that no one had been exe­cut­ed post-abo­li­tion under the prior statute.

Historically, most leg­isla­tive repeals of cap­i­tal pun­ish­ment statutes have not been retroac­tive and have left some peo­ple on death row. Most fre­quent­ly, state gov­er­nors have com­mut­ed those death sen­tences, usu­al­ly at or near the time of the repeal. In instances in which gov­er­nors have not issued blan­ket sen­tenc­ing com­mu­ta­tions, courts typ­i­cal­ly have over­turned the death sentences.

In March 2009, New Mexico leg­isla­tive­ly abol­ished the death penal­ty. However, the state’s prospec­tive repeal left two peo­ple on the state’s death row. Ten years lat­er, on June 28, 2019, the New Mexico Supreme Court struck down those sen­tences as vio­lat­ing the old statute’s pro­hi­bi­tion against dis­pro­por­tion­ate sen­tenc­ing and ordered the two pris­on­ers resen­tenced to life in prison.

In April 2012, the Connecticut leg­is­la­ture vot­ed to abol­ish the death penal­ty for future crimes. The repeal law did not affect the sta­tus of the 11 pris­on­ers then on the state’s death row. The Connecticut Supreme Court sub­se­quent­ly ruled in August 2015 that the death penal­ty vio­lat­ed the state con­sti­tu­tion. The Court reaf­firmed that hold­ing in May 2016 and reit­er­at­ed that the state’s remain­ing death row pris­on­ers must be resen­tenced to life with­out pos­si­bil­i­ty of parole.

New Hampshire​’s prospec­tive death-penal­ty repeal in 2019 left one pris­on­er on death row. He is the only per­son cur­rent­ly on death row in the U.S. pur­suant to a repealed or judi­cial­ly inval­i­dat­ed death-penalty statute.

Since Furman v. Georgia over­turned all exist­ing cap­i­tal pun­ish­ment statutes in the U.S. in 1972, 11 states that had pris­on­ers on death row have abol­ished the death penal­ty. In that time, four states enact­ed prospec­tive leg­isla­tive repeals, with their gov­er­nors com­mut­ing the sen­tences of those left on death row by the statutes. In two oth­er states whose leg­is­la­tures prospec­tive­ly repealed the death penal­ty, courts lat­er issued rul­ings clear­ing their death rows. Only Virginia’s leg­isla­tive repeal applied retroac­tive­ly to cur­rent death-row pris­on­ers. In four oth­er states, courts issued rul­ings over­turn­ing death-penal­ty statutes and applied those rul­ings to remove the remain­ing pris­on­ers from death row.

Acker and Stull do not reach a con­clu­sion on the con­sti­tu­tion­al­i­ty of exe­cut­ing pris­on­ers left on death row by ves­ti­gial cap­i­tal pun­ish­ment statutes. They do note, how­ev­er, that in ​“giv­ing con­tent to the Eighth Amendment’s pro­hi­bi­tion against cru­el and unusu­al pun­ish­ments, the jus­tices have con­sis­tent­ly ​‘been guid­ed by ​“objec­tive indi­cia,” … [includ­ing] state prac­tice with respect to exe­cu­tions,’ to help deter­mine whether cap­i­tal pun­ish­ment poli­cies are con­sis­tent with ​‘the evolv­ing stan­dards of decen­cy that mark the progress of a maturing society.’”

Under that doc­trine — if the Court remains true to the law — the uni­ver­sal prac­tice of spar­ing indi­vid­u­als from exe­cu­tion after the laws under which they were sen­tenced to death are repealed or inval­i­dat­ed may be a constitutional command.