Uploaded October 2025 | Updated September 2026, 2 weeks ago
No Need to Wait: Congress Has the Power Today to Abolish the Death Penalty in the States
presented by
Eric M. Freedman, JD
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Maurice A. Deane School of Law
Wednesday, October 15, 2025
1-2:15 p.m.
Guthart Cultural Center Theater, First Floor, Axinn Library
Congress does not have the power to solve every social problem. In order to pass a valid statute, it must be exercising a power specifically granted to it by the Constitution.
Section 5 of the Fourteenth Amendment gives Congress the power to pass legislation enforcing the Bill of Rights against the states. My thesis is that Congress can and should use this power to abolish the states’ death penalties.
At first glance, this seems like a surprising assertion. The Supreme Court has squarely held that the Eighth Amendment does not prevent the states from maintaining capital punishment systems. How, then, could abolition of those systems be “enforcement” of the Bill of Rights?
The answer is that the enforcement power of Congress is not limited to what the Court has called the mere “insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional.”
Congress can investigate for itself the existence of violations of the Bill of Rights and legislate to correct or prevent them. The Court will evaluate the validity of such legislation by deciding whether it is congruent and proportional to the documented extent of the actual or potential constitutional violations.
A federal statute abolishing the states’ death penalty systems would be congruent and proportional legislation to remedy and prevent an amply-documented history of violations of rights that the Court has long recognized as fundamental concerns.
Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.
The prospects of Congressional enactment of my proposal are not as dim as may appear initially. A solid majority of the states have abolished capital punishment in law or practice – sometimes with the strong support of conservatives who oppose the institution on either libertarian or cost/benefit grounds. Congressional representatives from those states may well support the proposed legislation.
Moreover, even in those states that retain the death penalty, it actually exists in a miniscule number of counties within those states. Congressional representatives from the remaining areas of those states may well support the proposed legislation as well.
In any event, the historical experience with federal anti-lynching legislation – which was defeated repeatedly for a century until finally being enacted in 2022 – demonstrates that the introduction of a death penalty abolition bill would be likely to have valuable messaging and organizing benefits to advocates.
Eric M. Freedman, is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law.
He is the author of HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (NYU Press 2003), of MAKING HABEAS WORK: A LEGAL HISTORY (NYU Press 2018), and of numerous articles for scholarly and general publications concerning habeas corpus, capital punishment, and related subjects. He serves as the Reporter for the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases, which were released at a conference at the Law School and are regularly relied upon by courts at all levels.
Professor Freedman is actively involved in the continuing professional education of lawyers and judges, and in providing pro bono litigation advice and representation. He is a recipient of the Dybwad Humanitarian Award of the American Association on Mental Retardation for his work in exonerating an innocent Virginia death row inmate in Virginia.
A graduate of the Phillips Exeter Academy, Yale College, and Yale Law School, Professor Freedman holds a Master’s Degree in History from Victoria University of Wellington, New Zealand, and is a Life Member of the American Law Institute.
More about the Distinguished Lecture Series: https://www.hofstra.edu/provost/distinguished-faculty-lecture-series.html
No Need to Wait: Congress Has the Power Today to Abolish the Death Penalty in the States
presented by
Eric M. Freedman, JD
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Maurice A. Deane School of Law
Wednesday, October 15, 2025
1-2:15 p.m.
Guthart Cultural Center Theater, First Floor, Axinn Library
Congress does not have the power to solve every social problem. In order to pass a valid statute, it must be exercising a power specifically granted to it by the Constitution.
Section 5 of the Fourteenth Amendment gives Congress the power to pass legislation enforcing the Bill of Rights against the states. My thesis is that Congress can and should use this power to abolish the states’ death penalties.
At first glance, this seems like a surprising assertion. The Supreme Court has squarely held that the Eighth Amendment does not prevent the states from maintaining capital punishment systems. How, then, could abolition of those systems be “enforcement” of the Bill of Rights?
The answer is that the enforcement power of Congress is not limited to what the Court has called the mere “insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional.”
Congress can investigate for itself the existence of violations of the Bill of Rights and legislate to correct or prevent them. The Court will evaluate the validity of such legislation by deciding whether it is congruent and proportional to the documented extent of the actual or potential constitutional violations.
A federal statute abolishing the states’ death penalty systems would be congruent and proportional legislation to remedy and prevent an amply-documented history of violations of rights that the Court has long recognized as fundamental concerns.
Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.
The prospects of Congressional enactment of my proposal are not as dim as may appear initially. A solid majority of the states have abolished capital punishment in law or practice – sometimes with the strong support of conservatives who oppose the institution on either libertarian or cost/benefit grounds. Congressional representatives from those states may well support the proposed legislation.
Moreover, even in those states that retain the death penalty, it actually exists in a miniscule number of counties within those states. Congressional representatives from the remaining areas of those states may well support the proposed legislation as well.
In any event, the historical experience with federal anti-lynching legislation – which was defeated repeatedly for a century until finally being enacted in 2022 – demonstrates that the introduction of a death penalty abolition bill would be likely to have valuable messaging and organizing benefits to advocates.
Eric M. Freedman, is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law.
He is the author of HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (NYU Press 2003), of MAKING HABEAS WORK: A LEGAL HISTORY (NYU Press 2018), and of numerous articles for scholarly and general publications concerning habeas corpus, capital punishment, and related subjects. He serves as the Reporter for the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases, which were released at a conference at the Law School and are regularly relied upon by courts at all levels.
Professor Freedman is actively involved in the continuing professional education of lawyers and judges, and in providing pro bono litigation advice and representation. He is a recipient of the Dybwad Humanitarian Award of the American Association on Mental Retardation for his work in exonerating an innocent Virginia death row inmate in Virginia.
A graduate of the Phillips Exeter Academy, Yale College, and Yale Law School, Professor Freedman holds a Master’s Degree in History from Victoria University of Wellington, New Zealand, and is a Life Member of the American Law Institute.
More about the Distinguished Lecture Series: https://www.hofstra.edu/provost/distinguished-faculty-lecture-series.html
