In his paper, “No Need to Wait: Congress has the Power Under Section Five of the Fourteenth Amendment to Abolish the Death Penalty in the States,” in the Social Science Research Network, Eric M. Freedman acknowledges that while the US Supreme Court doesn’t view the death penalty unconstitutional, “under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice.”
Freedman maintains that the legislation could provide “proportional legislation to remedy and prevent an amply documented history of violations of rights that the Court has long recognized as fundamental concerns.” The violations include denial of effective assistance of counsel to defendants, racial discrimination in jury selection and charging and sentencing decisions, execution of those with mental impairments, and executions of the innocent. “Advocacy efforts supporting a federal statute abolishing capital punishment may achieve surprising success,” Freedman says.
In her book , Secrets of the Killing State: The Untold Story of Lethal Injection, set for release in April 2025, Corinna Barrett Lain “pulls back the curtain on this clandestine punishment practice, presenting a view of lethal injection that states have worked hard to hide. Botched executions are a part of this story, but they are just the tip of the iceberg,” according to the promotional copy notes. “We are now over 45 years into the lethal injection era, and most Americans still have no idea what states are doing in their name. It’s time they found out.” Lain was a panelist on a February 2023 DPF webinar, “Lethal Injection Lies,” which can be viewed on our website here.
“In the occasional death penalty case, the justices who would grant a stay of execution write full dissenting opinions explaining their votes,” writes Jay Willis in Balls & Strikes. “But those in the majority rarely bother showing their work, which means that nearly every time a person condemned to death asks the Supreme Court to intervene, the justices who deny that request do so in fewer words than it would take to place their group coffee order.” Willis cites the Court’s refusal to hear Marcellus “Khaliifah” Williams’ final appeal — a five-sentence denial — and writes, “They should have to justify in painstaking detail their conclusion that, in light of all the relevant facts and circumstances, the even-handed administration of the law is possible only through more state-sanctioned killing.”
When the US Supreme Court declined to hear the final appeal by Marcellus “Khaliifah” Williams to hear his case before he was killed by the State of Missouri late last month, it “was appalling by any measure,” Jack Hanson writes in his piece, “Last Rites,” in the New York Review of Books. “A bitter irony is the fact that six of the nine justices are practicing Catholics,” he points out. Hanson then briefly reviews the history of the Catholic Church’s stance on capital punishment, from the 1500s to the twentieth century, when “progress toward abolition began in earnest,” to 2018, when Pope Francis amended the Catechism “to declare the death penalty ‘inadmissible’ in the modern world. However, “Six of the 21 states in which the death penalty is practiced are presided over by Catholic governors, including Greg Abbott, who described the frequency of executions in his state as ‘Texas justice,'”he writes. And President Biden, a Catholic who “began his administration as the only sitting president to ever oppose the death penalty without exception,” hasn’t taken any significant action on the death penalty,” and his Attorney General “is allowing the Justice Department to seek the death penalty in two cases involving racially motivated mass murders.” Hanson concludes, “No amount of argumentative subtlety will heal the desecration of both victim and perpetrator when a human being, no matter what they have done, is rendered defenseless and killed. And no depth of silence can conceal those responsible, should they ever be held to account.”
