On December 17, 2007, former New Jersey Governor Jon Corzine signed into law a bill that abolished his state’s death penalty, saying he felt a “moral duty to end ‘state-endorsed killing.’” With Corzine’s signature, New Jersey became the fourteenth state to eradicate the death penalty, and the first to do so legislatively since Iowa and West Virginia legislators did away with capital punishment in 1965. The vote by New Jersey lawmakers followed close, but ultimately unsuccessful, votes on similar bills in Colorado, Maryland, Montana, Nebraska, and New Mexico earlier in 2007. And while it took more than thirty-one years for the first state to repeal its post-Gregg v. Georgia death penalty statute legislatively, it took only fifteen months for the second state to follow; on March 18, 2009, former New Mexico Governor Bill Richardson signed legislation to repeal his state’s capital punishment statute, saying that his “conscience compel[led him] to replace the death penalty” with a sentence of life in prison without the possibility of parole. Less than two years after New Mexico jettisoned capital punishment, Illinois became the third state to do so legislatively in the post-Gregg era, when Governor Pat Quinn signed a bill repealing the death penalty on March 9, 2011, eleven years after former Governor George Ryan declared a moratorium on executions in the state. Finally, when Connecticut Governor Dannel P. Malloy, a former prosecutor, signed a bill to abolish his state’s death penalty on April 25, 2012—calling it “a moment for sober reflection, not celebration”—he made Connecticut the fourth state in just over five years to eradicate capital punishment via legislative repeal.
As of December 2012, seventeen states and the District of Columbia have eliminated capital punishment. Ten states have not had the death penalty since before the U.S. Supreme Court’s 1972 decision in Furman v. Georgia temporarily imposed a de facto nationwide moratorium on capital punishment, while Massachusetts, Rhode Island, and the District of Columbia got rid of their death penalty statutes in the early-mid 1980s. Since 1984, five states have abolished capital punishment, and each has done so in the last eight years: New York in 2004 via judicial decision and New Jersey (2007), New Mexico (2009), Illinois (2011), and Connecticut (2012) via legislative repeal. This nationwide flurry of legislative activity comes as public support for the death penalty, while still relatively strong, has nonetheless slipped as DNA evidence continues to exonerate scores of death row inmates. Cases like that of Troy Davis—a black man convicted of the 1989 murder of a white police officer in Georgia and executed on September 21, 2011 in the face of recanted testimony and other dubious evidence—continue to galvanize anti-death penalty forces and lead to renewed calls for a reconsideration of capital punishment in America.
This Article examines legislative repeal of the death penalty and argues that abolition of capital punishment by legislative action is not only more democratically legitimate than repeal by judicial fiat, but also more likely to convince the U.S. Supreme Court that capital punishment violates the Eighth Amendment’s prohibition against cruel and unusual punishment in light of “evolving standards of decency.” Because judges lack the democratic accountability of legislators, judicial decisions lack the institutional legitimacy of legislative action when it comes to controversial and divisive issues such as capital punishment. Indeed, the Supreme Court emphasized the primacy of legislative action in the states in informing “evolving standards of decency” when it held the death penalty unconstitutional as applied to mentally retarded defendants in Atkins v. Virginia. Evolving standards of decency, Justice Stevens noted, “should be informed by ‘objective factors to the maximum possible extent.’” The Court added that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” As such, according to Colleen Cunningham, a staff member at the anti-death penalty organization Equal Justice USA, widespread repeal of the death penalty by state legislatures would do more to convince the Supreme Court that nationwide “evolving standards of decency” mandate an end to capital punishment than would piecemeal judicial repeal in the state courts.
This Article proceeds in four Parts. Part I illustrates the strategy of capital punishment abolitionists nationwide by discussing the relative superiority of legislative action vis-à-vis judicial decree in the context of the death penalty and “evolving standards of decency.” To do so, it analogizes to the Supreme Court’s decisions in Atkins and Roper v. Simmons to illustrate the type and breadth of legislative action the Court has recently found sufficient to constitute an “evolving standard of decency” for death penalty purposes. Part II examines in detail the repeal processes in New Jersey, New Mexico, Illinois, and Connecticut—the four states that have legislatively abrogated their death penalty statutes since 2007. It catalogues the legislative progression in each state and, where possible, evaluates how courts, legislators, and the public have reacted to abolition there. To do so, it looks to judicial decisions in the wake of repeal, to dissenting legislators’ failed attempts to reinstate the death penalty, and to newspaper editorials that reflect public opinion in the states. Part III considers the likelihood that other states will legislatively repeal their death penalty statutes in the immediate or relatively near future and ponders how many states must abolish capital punishment altogether before the Supreme Court may be compelled to follow suit. Part IV briefly concludes.