Going Retro: Abolition For All

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row.

In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty. Some states, however, are “going retro.” In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”). More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons. The first is political: legislators are not pursuing retroactive legislation because they do not have the votes.

The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere—to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others. This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not.

As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity. They demand abolition for all.