THE DEATH PENALTY AND THE FUNDAMENTAL RIGHT TO LIFE.

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  • Additional Information
    • Subject Terms:
    • Abstract:
      For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment. But the Court has never addressed--let alone decided--whether the death penalty per se deprives the fundamental right to life in violation of substantive due process. The legal literature has followed suit, scarcely addressing the issue. This Article makes the case for why the death penalty violates the fundamental right to life. It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one's government. It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution. Arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring. Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment's text or the elephant in the room: abortion rights. Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon. The road less traveled is substantive due process--the right to life of the condemned. On the long road toward abolition, this Article argues that two lanes are better than one. [ABSTRACT FROM AUTHOR]
    • Abstract:
      Copyright of Boston College Law Review is the property of Boston College Law School and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
    • Author Affiliations:
      1Quinnipiac University School of Law
    • ISSN:
      0161-6587
    • Accession Number:
      137618961
  • Citations
    • ABNT:
      BARRY, K. M. The Death Penalty and the Fundamental Right to Life. Boston College Law Review, [s. l.], v. 60, n. 6, p. 1545–1604, 2019. Disponível em: . Acesso em: 21 nov. 2019.
    • AMA:
      BARRY KM. The Death Penalty and the Fundamental Right to Life. Boston College Law Review. 2019;60(6):1545-1604. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580. Accessed November 21, 2019.
    • APA:
      BARRY, K. M. (2019). The Death Penalty and the Fundamental Right to Life. Boston College Law Review, 60(6), 1545–1604. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580
    • Chicago/Turabian: Author-Date:
      BARRY, KEVIN M. 2019. “The Death Penalty and the Fundamental Right to Life.” Boston College Law Review 60 (6): 1545–1604. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580.
    • Harvard:
      BARRY, K. M. (2019) ‘The Death Penalty and the Fundamental Right to Life’, Boston College Law Review, 60(6), pp. 1545–1604. Available at: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580 (Accessed: 21 November 2019).
    • Harvard: Australian:
      BARRY, KM 2019, ‘The Death Penalty and the Fundamental Right to Life’, Boston College Law Review, vol. 60, no. 6, pp. 1545–1604, viewed 21 November 2019, .
    • MLA:
      BARRY, KEVIN M. “The Death Penalty and the Fundamental Right to Life.” Boston College Law Review, vol. 60, no. 6, June 2019, pp. 1545–1604. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580.
    • Chicago/Turabian: Humanities:
      BARRY, KEVIN M. “The Death Penalty and the Fundamental Right to Life.” Boston College Law Review 60, no. 6 (June 2019): 1545–1604. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580.
    • Vancouver/ICMJE:
      BARRY KM. The Death Penalty and the Fundamental Right to Life. Boston College Law Review [Internet]. 2019 Jun [cited 2019 Nov 21];60(6):1545–604. Available from: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=137618961&custid=s6224580