as said if a murder was committed in a US state that had the death penalty for that offence at the time but the person who committed it was'nt caught until 45 years later(during which the death penalty for murder in that state had been outlawed/abolished)could they"upon conviction"still face execution/be executed?whatabout under U.S federal law/s?

1 Answer 1


It depends on how the death penalty is abolished. The death penalty was partially abolished by the state supreme court in Washington in State v. Gregory – for the third time. The court states that "None of these prior decisions held that the death penalty is per se unconstitutional, nor do we". Instead, it was found unconstitutional in its application: it is "invalid because it is imposed in an arbitrary and racially biased manner". This is similar to the situation with Furman v. Georgia, where

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings

4 years later in Gregg v. Georgia, SCOTUS found that the revised procedure was consistent with the 8th Amendment. In these cases, imposition of the death penalty was invalidated, so any person so sentenced could therefore not be executed. These rulings were time-independent, that is, they refer to the imposition and carrying out of sentence, regardless of when the crime was committed.

Dobbert v. Florida interacts with these cases. Dobbert committed murder in the period when there was no constitutional execution, but the trial was carried out under a modified procedural regime that constitutionally allowed for execution. The court states that

The new statute simply altered the methods employed in determining whether the death penalty was to be imposed, and there was no change in the quantum of punishment attached to the crime

so the revised procedures could be followed even though the statutory change was enacted after the crime was committed. This is one way in which a sentence could be "abolished" when the act was committed. and yet imposed at sentencing.

In the ruling, the court attempts to clarify the no ex post facto law clause of the Constitution. Citing Beazell v. Ohio,the court observes that

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed which was innocent when done, which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto

So for instance suppose that a legislature decides to modify the statutory penalty for murder to 10 years in prison. That is therefore the penalty for any murder carried out at the time. If a person person commits murder in that period, even if they are not tried or sentences until after the legislature re-imposes the death penalty, that new sentence cannot apply to murder in question. The crucial difference involves distinguishing changes in the law of procedure, vs. what the actual penalty will be.

As also stated by the court, the concept of "ex post facto law" involves not just change in law, it crucially involves making things worse for the defendant:

It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law

There is no general US legal finding that a person is entitled to a lesser penalty when the legislature statutorily reduces the penalty for a crime, however that effect could come from appropriate legislative action, as plays a role in Concepcion v. US. Congress enacted a retroactive amelioration of the law (pertaining to weight thresholds related to sentencing in drug laws). SCOTUS presupposes in their ruling that this is possible because of this act of Congress (the issue in this case is about court discretion in what information is considered – a procedural question). Retroactive application of a change in a punishment statute is not automatic, it requires specific legislative enactment.

  • Although the death penalty can usually be commuted by political authorities (normally to life imprisonment), so in practice that is probably what would happen if someone was sentenced after its abolition.
    – Stuart F
    Jan 15, 2023 at 10:34

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