Michael Conklin is a Powell Endowed Professor of Business Law at Angelo State University. In this review, Conklin critiques Kevin M. Barry’s recent article, The Death Penalty and the Fundamental Right to Life, which lays out an often-overlooked argument against the death penalty. Barry posits that the death penalty is unconstitutional, not on Eighth Amendment cruel and unusual punishment grounds, but on a theory of violating the fundamental right to life from substantive due process. Conklin contends that while substantive due process is a compelling argument for the abolition of the death penalty because it circumvents nuanced discussions of race and public opinion, Barry’s delivery instead engages in those distracting inquiries by discussing topics which are largely irrelevant and distract from the substantive due process argument.
Recommended citation: Michael Conklin, The Road Less Traveled: Abolishing the Death Penalty on Substantive Due Process, Fundamental Right to Life Grounds, 51 Loy. U. Chi. L.J. Online 1 (2020).