Let us suppose that a sufficiently large majority of the US Congress, with the agreement of the President, decided that the death penalty should be abolished throughout the nation, both at the federal and state level. How could they make it happen?

Of course, they could abolish the federal death penalty with an ordinary act of legislation, and the President could pardon or commute the sentences of all federal prisoners on death row. But 31 states also provide for the death penalty, and in principle, Congress does not have the power to change their laws (Tenth Amendment). Let us suppose that those 31 states (and their legislatures, governors, courts, etc) are intent on preserving the death penalty, so that a Constitutional amendment to abolish it would not be ratified by 3/4 of state legislatures as required.

The Supreme Court could effectively abolish it by ruling that it constitutes cruel and unusual punishment under the Eighth Amendment (which also applies to the states via the incorporation doctrine and the Fourteenth Amendment). But let's suppose the Judicial Branch is not on board.

So how can Congress and the federal government proceed, legally?

  • They could agree to a "litmus test" policy, to appoint / confirm only Supreme Court justices who they could trust to vote for abolition, as above. But this would not be effective until sufficiently many vacancies had opened on the Court and been filled, which could take many years. Moreover, the justices thus appointed could change their minds.

  • The President's power of clemency only extends to federal crimes, right? He/she has no power to pardon crimes under state law, nor to order state prisoner reprieved. So that doesn't help.

  • They could attempt to coerce the recalcitrant states, by denying them federal funding of one sort or another until they change their laws. This presumably would work, but would depend on how stubborn the holdout states were, and how much chaos Congress was willing to cause to the public in the meantime (e.g. no roads getting fixed, no Medicaid, etc).

  • They could make it a federal crime for any state official to perform or authorize an execution. But would this pass Tenth Amendment scrutiny?

  • They could pass a Constitutional amendment banning the death penalty, and specify that it should be ratified by state ratifying conventions, as was done for the Twenty-first Amendment, thus bypassing the state legislatures. However, if the death penalty had popular support in more than 1/4 of the states, the conventions might not ratify the amendment either.

Are there any problems or possibilities with these options that I've missed? Are there other options that might be feasible?

  • I am not totally sure if this question is better here or on Politics.SE. Suggestions or advice are welcome. – Nate Eldredge Nov 5 '15 at 4:16
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    @NateEldredge I answered the question from a law standpoint. I cannot foresee Congress acting in the way I described, but I believe such actions are constitutional. – Viktor Nov 5 '15 at 6:30
  • Federal funding approach would be the easiest option. Cut off all public safety funding and see how quickly every police unit in the country supports abolition. – aidanh010 Oct 2 at 2:22

Congress could start by repealing the The Antiterrorism and Effective Death Penalty Act of 1996.

Afterwards Congress could draft a new law that gives prisoners, sentenced to death, a right to appeal to the Supreme Court. Currently, the Supreme Court chooses which cases it reviews, this law would force the Supreme Court to review each death penalty case. Congress could also mandate that an automatic stay of execution would be issued upon appeal. Then Congress could mandate that such a stay continue until a petition for rehearing is denied. Then Congress could make another law saying that any argument not raised in a lower court is not waived when it is not raised in an appeal. Additionally, it could allow the defendant to appeal each issue one at a time and declare that a stay must be issued for each appeal.

In brief, the above would indefinitely postpone any execution for the whole foreseeable future.

Let's say the above is not enough. Congress could first off prevent any further appeals when the defendant prevails in any level. For example if the defendant wins an appeal at a state Supreme Court, congress could prevent appeal to the federal Supreme Court. Next, Congress could also delay collateral attacks on the conviction by turning writs of Habeas Corpus proceedings into second trial by adding some clause that if the respondent to the writ does not establish beyond a reasonable doubt that the petitioner committed the crime from the evidence heard during the proceeding, the writ shall be issued, which essentially means the defendant's original trial is invalidated.

In brief, Congress could make it financially impossible to handle appeals of death sentences for states, while providing funds for the defendants sentenced to death.

Congress could also add so many procedural safeguards that postpone hearings for a duration much longer than a person's expected lifetime.

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    An interesting answer, although this doesn't really "abolish the death penalty" - just makes it very difficult (to the point of being virtually impossible) to enforce. – Jon Story Nov 5 '15 at 16:53
  • I doubt congress can actually tell the supreme court that it must take certain cases. – Matt Nov 5 '15 at 18:11
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    @Matt you used to have an appeal as of right to the Supreme Court on many issues. Congress can reinstate it. See en.m.wikipedia.org/wiki/Judiciary_Act_of_1891 en.m.wikipedia.org/wiki/Judiciary_Act_of_1925 and en.m.wikipedia.org/wiki/Supreme_Court_Case_Selections_Act additionally, Article 3, Section 2 of the Constitution states: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Congress can regulate as it wishes. – Viktor Nov 5 '15 at 18:23
  • Couldn't congress also pass a law saying that holding someone on death row for more than 5 years, say, was effectively a form of torture and therefore illegal under federal law? Or in other words, how have they made torture illegal in all states? – felipa Mar 17 '17 at 20:35
  • @felipa while congress can pass any law really, it's enforceability may be questionable as the constitution leaves interpreting the constitution up to the judicial branch. A law defining parts of it or adding to it is just a law. Congress was not given authority to legislate on the right punishment or how the punishments are applied for the most part by the states. The exception is if the courts interpret the 13th or 14th or any other part of the constitution to mean something, congress can legislate to further enforce those rights. So most likely this law would not pass constitutional muster. – Viktor Mar 17 '17 at 20:44

The United States could sign a treaty with Canada under which it undertook to eradicate the death penalty throughout the nation. This would authorise Congress to pass an Act abolishing state-level death penalties under the foreign affairs power.

This is the trick they used to regulate birds despite a lack of an avian head of power in the Constitution. The supremacy of federal law over state law finishes the job. See Missouri v Holland (1920) 252 US 416.

Actually the necessary treaty already exists (Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, among others) but the US hasn't signed it.

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    An international treaty does not give Congress carte-blanche authority to pass laws that would otherwise be unconstitutional. Legally speaking the law is whatever Congress and SCOTUS say it is. But politically speaking, that decision was a serious error the Supreme Court made. The Holland case is where the doctrine of a "living constitution" comes from, and it's a subject of hot debate even to this day -- to the extent that the Senate specifically asks judicial nominees this question when confirming judges to federal courts. – Wes Sayeed Jan 6 '17 at 23:27

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