“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After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated, published as part of the law journal’s 2021 Criminal Justice Reform Issue, they analyzed what happened to prisoners who were on death row in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.