No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners


The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming family members, whether or not the prisoner is ever executed. Finally, the article examines each of these justifications in the context of the myriad problems with the death penalty -- convicting innocent people, racial bias, unfairness in the prosecution of death penalty cases, unequal access to attorneys, higher costs than long-term incarceration – and argues that these problems cannot survive a strict scrutiny analysis, especially when there are alternatives such as long-term incarceration that can adequately accomplish the goals of retribution, deterrence, incapacitation, and reaffirmation of social norms. This article is a timely contribution to an issue of important social importance.


Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

August 2006