Death Penalty: Can Congress Ban Capital Punishment?

The death penalty is a highly controversial topic in the United States, with some arguing that it is cruel and racist, while others believe it is a necessary form of punishment for certain crimes. While Congress has the power to pass laws abolishing the federal death penalty, doing so in all states is more complex due to the Tenth Amendment. To achieve this, Congress could attempt to deny funding to states that refuse to change their laws or pass a Constitutional amendment banning the death penalty. However, this would require ratification by 3/4 of state legislatures, which may not be feasible if a significant number of states support capital punishment. As a result, the death penalty remains a divisive issue, with ongoing debates and legislative efforts to address it.

Congress can abolish the federal death penalty with an ordinary act of legislation

The Federal Death Penalty Prohibition Act of 2023, cosponsored by Senators Tim Kaine, Chris Coons, Chris Van Hollen, and others, also sought to end the use of the death penalty by the federal government. This bill would prohibit the imposition of the death penalty as punishment for any violation of federal law and require the resentencing of those previously sentenced to death row.

While Congress has the power to abolish the federal death penalty, it does not have the authority to change the laws of states that provide for the death penalty (as per the Tenth Amendment). To abolish the death penalty in all states, Congress would need to pass a Constitutional amendment, which would require ratification by 3/4 of state legislatures, a potentially challenging task.

However, Congress could attempt to coerce reluctant states by withholding federal funding until they change their laws. Additionally, they could make it a federal crime for state officials to perform or authorize executions, though this may face scrutiny under the Tenth Amendment. Another option is to invoke their enforcement power under the 14th Amendment, as courts have held that Congress has broad discretion to regulate state action to protect constitutional rights.

The President can pardon or commute the sentences of all federal prisoners on death row

Congress can pass a law to ban the death penalty. In 2019, the 116th Congress introduced the Federal Death Penalty Abolition Act, which aimed to abolish the death penalty under federal law.

However, the power of Congress to ban the death penalty in all states is limited by the Tenth Amendment. While Congress can abolish the federal death penalty, 31 states also have the death penalty, and Congress does not have the power to change their laws. To abolish the death penalty in these states, a Constitutional amendment would be required, ratified by 3/4 of state legislatures.

One way to coerce these states would be to deny them federal funding until they change their laws. Another option would be to make it a federal crime for state officials to authorize an execution.

The President can also play a role in abolishing the death penalty. The President could pardon or commute the sentences of all federal prisoners on death row. For example, President Joe Biden commuted the sentences of 37 out of 40 people on federal death row, giving them life imprisonment. Biden also pardoned 39 people convicted of non-violent crimes in a single day, the largest act of clemency in modern history.

Congress can coerce states to abolish the death penalty by denying them federal funding

Congress can abolish the federal death penalty with an ordinary act of legislation. However, in principle, Congress does not have the power to change the laws of 31 states that provide for the death penalty. This is due to the Tenth Amendment.

One way Congress can coerce states to abolish the death penalty is by denying them federal funding. This strategy would likely work, but it depends on how stubborn the holdout states are, and how much disruption Congress is willing to cause for the public. For example, denying federal funding could result in public services like road repairs and Medicaid being affected.

Congress could also pass a law that makes it a federal crime for any state official to perform or authorize an execution. However, this approach may not pass Tenth Amendment scrutiny. Another option is to pass a Constitutional amendment banning the death penalty, specifying that it should be ratified by state ratifying conventions, thereby bypassing state legislatures.

Congress could also make it financially impossible for states to handle appeals of death sentences, while providing funds for defendants sentenced to death. They could also add procedural safeguards that postpone hearings for much longer than a person's expected lifetime.

Congress can make it a federal crime for state officials to perform or authorise an execution

Another way to abolish the death penalty in all states is to pass a Constitutional amendment banning it and specify that it should be ratified by state ratifying conventions, as was done for the Twenty-first Amendment, thus bypassing the state legislatures. However, if the death penalty had popular support in more than 1/4 of the states, the conventions might not ratify the amendment.

Congress can also abolish the federal death penalty with an ordinary act of legislation, and the President could pardon or commute the sentences of all federal prisoners on death row.

There have been several attempts to abolish the death penalty under federal law, including the Federal Death Penalty Abolition Act of 2019 and 2021, and the Federal Death Penalty Prohibition Act of 2023. These bills were introduced in response to the pervasive and systemic issues with the federal death penalty, such as racial bias, the sentencing and execution of people with severe mental and intellectual disabilities, and flawed legal representation.

Congress can pass a Constitutional amendment banning the death penalty

However, this approach may not be successful if the death penalty has popular support in more than 1/4 of the states, as the conventions might not ratify the amendment. Congress could also attempt to coerce the reluctant states by withholding federal funding until they change their laws. This strategy would likely work, but it would depend on how committed the holdout states are to keeping the death penalty, and how much disruption Congress is willing to cause to public services and programs.

Another option for Congress to abolish the death penalty would be to invoke their enforcement power under the 14th Amendment. The courts have held that Congress has broad discretion to regulate state action if their remedy is proportional to the harm and they are acting to protect rights guaranteed by the Constitution.

Congress has attempted to pass legislation abolishing the death penalty at the federal level. The Federal Death Penalty Abolition Act of 2019 and 2021 were introduced in Congress, aiming to abolish the death penalty under federal law. The Federal Death Penalty Prohibition Act of 2023 was also introduced, with the support of over 90 Members of Congress and hundreds of organizations. This bill would prohibit the imposition of the death penalty for any violation of federal law and require the resentencing of those previously sentenced to death.

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