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The Future of the Death Penalty

The Future of the Death Penalty

One of the most pressing issues at the heart of the 2016 election is the Supreme Court. If the Democrats take back control of the Senate and Clinton wins the presidency, the court will undergo a dramatic shift. The Senate would most likely confirm Merrick Garland in a lame duck session, in order to avoid an even more liberal nominee by a President Clinton. This would shift the balance to the more liberal wing of the court, empowering Justice Ginsburg—the Chief Justice assigns written opinions, but only if they are in the majority. If not, then the most senior justice in the majority assigns the opinion, which would more often than not be Justice Ginsburg, unless Justice Kennedy joined the opinion as well. Given this fundamental shift, and the recent wins by those against the death penalty in DelawareNebraska, and the court of public opinion. In light of this potential shift, I thought it worthwhile to examine the history of Eighth Amendment jurisprudence, and the doctrine of living constitutionalism that has become entwined with it.

There are two main ways to approach the interpretation of the Constitution. The first of these interpretations is living constitutionalism, which is exemplified in cases by both the Warren and Burger courts. Living constitutionalism is the idea that the Constitution can be interpreted in light of the era that it is currently in. Although this certainly does not mean that the age requirement for president could be interpreted as thirty-four or thirty-six, it does mean that other, less concrete concepts can adapt their meaning to the current time, e.g., equal protection.

The second main method of interpretation is called originalism. In essence, originalism seeks to interpret the Constitution in the way that it would have been understood at the time of the founding. Those who pursue an originalist interpretation of the Constitution look to the meaning of the words at the time of the founding in order to understand how the early citizens of the United States would have understood the text. According to this interpretation, the judiciary can not read rights into clauses if that was not the intention at the time of the founding. If the Constitution does not explicitly prohibit it, then it is up to the legislatures to decide, not the courts.

In the most recent Court, which has been headed by Chief Justice John Roberts since 2005, the court has made decisions in a way that is less predictable than previous courts. Although the Court is generally thought of as having four “conservative” justices, four “liberal” justices, and a swing vote, that distinction has become more muddled in recent years, primarily owing to Chief Justice John Roberts decisive vote regarding the constitutionality of the Affordable Care Act. Whether this vote was cast because of genuine agreement with the reasoning or to preserve the integrity of the Court, some commentators say that the court has become more unpredictable than in some past eras. They argue that this is the case because Roberts has been more willing to compromise with the more liberal wing of the Court, is not wedded to the idea of originalism like Justices Thomas and Scalia, and is concerned for the legacy and relevance of the Court. They also note that the result of upcoming controversial cases are harder to determine than they could have been in the past, namely King v. Burwell and Obergefell v. Hodges.

Notwithstanding all of the previous examples of differing jurisprudence by the Court, one area of constitutional interpretation has remained remarkably stable. That area is the Eighth Amendment’s Cruel and Unusual Punishment clause. The Court has embraced a progressive Eighth Amendment jurisprudence that accepts the notion of a living constitution and has shifted progressively left in terms of the political spectrum.

Eighth Amendment Jurisprudence

With one notable exception, the Court has always ruled that capital punishment in general does not per se violate the Eighth Amendment. Regardless of the support for capital punishment in theory, the Court has issued a number of restrictions on capital punishment in practice. This section will detail the cases that have led to those restrictions and examine the underlying reasons that led to the restrictions.

Evolving Standards of Decency

Oddly enough, the case that set the stage for all future limitations on capital punishment did not actually involve capital punishment itself. In Trop v. Dulles, the court narrowly ruled that the United States cannot strip a U.S. citizen of citizenship in the absence of that person “voluntarily relinquish[ing] or abandon[ing] it.” Chief Justice Warren penned that the court must interpret the Cruel and Unusual Punishments clause in light of “evolving standards of decency.” Furthermore, the Court states that loss of citizenship causes “the total destruction of the individual’s status in organized society,” and that “It is a form of punishment more primitive than torture.” Although this decision was obviously controversial, with Justice Frankfurter questioning in his dissent if losing citizenship was truly worse than death, later courts have adopted the majority’s logic in most subsequent capital punishment cases.

Furman and Gregg

The first meaningful blow to capital punishment came in the case Furman v. Georgia. This case spurred a de facto moratorium on the use of capital punishment, and is able to apply to many different future problems with capital punishment as there is not a controlling opinion. Of the justices that were in the majority, Justices Douglas, Stewart, and White produced opinions that were the closest to each other, and this is the basis from which the moratorium emerged. In these three opinions, the justices found that capital punishment was being imposed arbitrarily and inconsistently, with a plausible basis for this arbitrariness “the constitutionally impermissible basis of race.”

In the opinions making up the remainder of the majority opinion, Justices Brennan and Marshall wholly invalidated capital punishment, expanding on the logic used by the other three justices and taking a more sweeping view to the question being posed in the case. Whereas the other three justices found the death penalty unconstitutional as it was being currently applied, Justices Brennan and Marshall found that death in and of itself was offensive to human dignity and excessive. Furthermore, Marshall began a tradition of citing capital punishment in an international context in Eighth Amendment decisions.

The main dissent in Furman, joined by all of the remaining justices, is notable for remarking that they would join in the opinions of Justices Brennan or Marshall if the Court had legislative ability. Furthermore, Justice Blackmun famously stated his disdain for capital punishment in a dissent that he wrote only to provide “personal comments,” even though he upheld capital punishment. Ultimately, the dissents stated that the recent decisions upholding the death penalty in Rudolph v. Alabama, and McGautha v. California, along with the fact that capital punishment has a long tradition not only in the United States, but in the Anglo legal tradition, did not allow the death penalty to be ruled unconstitutional.

As noted previously, the lack of a controlling opinion made this case somewhat difficult to interpret. Most commonly, the concurrences by Justices Douglas, Stewart, and White are used as the controlling opinion. It was therefore their opinions, that the death penalty was being imposed arbitrarily on the “the constitutionally impermissible basis of race,” that the court found error with four years later. In this opinion, Gregg v. Georgia, Justices Stewart and White found sufficient evidence of change in the states to change their opinions and vote to reinstate the death penalty, and rejected Brennan’s Furman statement saying that there was a reluctance among the people to inflict the death penalty:

The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.

The Justices go on to say that capital punishment is not inherently unconstitutional, while also writing that capital punishment is no longer applied “wantonly and freakishly” in Georgia. As a result, capital punishment in that state fixed the concerns that were expressed in Furman and provided a model for other states to base their capital punishment system on.

Justices Brennan and Marshall sustained their opposition to the death penalty, for the same reasons as they did in Furman.

Furman and Gregg provide interesting starting points when looking at the Court’s Eighth Amendment jurisprudence. On one hand, Furman seems to provide hope, not only for opponents of capital punishment, but for supporters of a living interpretation. This interpretation, seen in the “controlling opinion,” and to a greater extent in the opinions of Justices Brennan and Marshall, reads more into the Cruel and Unusual Punishments clause than is directly stated in the Constitution. This is done by imposing additional burdens that must be remedied before being able to proceed with capital punishment, including the use of social science to show that capital punishment may not actually succeed in its goal of deterrence.

Furthermore, in Gregg, even though the justices upheld capital punishment, they did provide some reasons that are compatible with the living constitutionalism. However, their opinion, and the dissents in Furman, were heavily underscored by originalism. It is also notable that the originalist opinions, that is, the dissents in Furman and the majority and concurrences inGregg, all invoke the same reasoning: that there is a long history of capital punishment in the United States and the colonies that preceded it. This is mentioned in Furman’s main dissent, Justice Blackmun’s passionate opinion decrying capital punishment yet voting to sustain its use, and the majority opinion in Gregg. Granted, these opinions also included further reasoning, but the invocation of the United States’ long history of capital punishment in these opinions is something that will continue to reappear in later cases. Although it was unclear at first whether more challenges to capital punishment would be taken on by the Court in the aftermath of Gregg, the issue returned in the following session of the court, kicking off a thirty-seven year string of cases that have successively limited the usage of the death penalty.


1. Rape

The first major limitation to the use of capital punishment came only one year after the decision in Gregg. In this case, the question before the court was whether or not capital punishment was appropriate punishment for someone who committed rape—Coker v. Georgia. The Court ultimately held that the sentence of death was unconstitutional by virtue of the Eighth Amendment, but it is the majority’s reasoning that matters far more than the result. As the Court ruled against the imposition of capital punishment using its proportionality principle developed in Weems v. United States, it continued the trend of expanding the meaning of the cruel and unusual punishments clause not only to align with the “evolving standards of decency,” but also with international norms. The three pronged test for proportionality includes 1. judgement by a court on the severity of a crime, 2. a comparison of the sentence imposed with other sentences for more severe crimes in the same jurisdiction, and 3. comparison of the sentence imposed with sentences imposed for the same crime in other jurisdictions, including foreign nations. It is also worth noting that the proportionality principle would be taken to its logical conclusion in Kennedy v. Louisiana, wherein the Court ruled that capital punishment could not be applied in any case where the “victim’s life was not taken.”

With regard to the “evolving standards” argument, the Court notes the fact that while no majority of the country has ever authorized capital punishment for rape, only three retained that punishment after bringing their systems up to the standard that was laid out in Furman. The Court also explicitly mentions capital punishment for rape in an international context, writing that “[i]t is thus not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.” Finally, the Court notes that a punishment is unconstitutional if it fails to contribute to accepted goals of punishment by causing unnecessary pain and suffering. This part of the opinion is especially important as it would be cited in two later landmark cases restricting the use of capital punishment.

2. Minors

Two cases set the present limits on capital punishment regarding its use on minors. The first case—Thompson v. Oklahoma—came eleven years after the first major restriction in Coker. This time, the restriction on the penalty involved minors who were under the age of sixteen at the time their crimes were committed.

The Court’s decision begins by showing that all of the states have various restrictions on what minors can and cannot do, and by noting that in states that restrict capital punishment by age, all of them restrict its use to those over the age of sixteen. Along those same lines, the Court then turned once again to the international community, first reaffirming the relevance of international law, then stating that other countries with a shared “Anglo-American heritage,” along with other Western European countries all prohibit the execution of children, regardless of whether they permit execution in other cases. The Court also cites international treaties that the United States is and is not party to, in order to reinforce the international consensus against the use of the death penalty for minors.

In addition to this reasoning, the Court notes that no more than twenty juveniles under age fifteen have been executed in the United States in the twentieth century, with five more being sentenced to death between 1982 and 1986. These five juveniles came from 1,393 who were sentenced to death for willful criminal homicide, which comprises murder and non-negligent manslaughter. Channeling Furman, the Court likened these sentences of death to being “struck by lightning.” After further noting that capital punishment’s two purposes, retribution and deterrence, were not being accomplished with respect to juveniles, the Court ruled that the execution of juveniles under the age of sixteen was “nothing more than the purposeless and needless imposition of pain and suffering.” The court found that retribution was not being accomplished with children because of children’s lesser culpability, greater capacity for growth, and society’s fiduciary obligation to them. Additionally, the court found that deterrence was not being accomplished because it was 1. unlikely that a juvenile would perform the necessary “cost-benefit analysis” with regard to the possibility of being executed and 2. “fanciful to believe that he would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century.” Therefore, the Court ruled that the death penalty for children under the age of sixteen was unconstitutional.

The following case, Roper v. Simmons, found that it was unconstitutional to execute those who were seventeen or eighteen at the time of their crimes using much of the same logic and evidence as was used in Thompson. In fact, if Justice Kennedy, who wrote the majority opinion in Roper, had taken part in Thompson, it is quite possible that the Court would have come to this conclusion earlier, possibly in Thompson, as was urged by numerous amici curiae briefs.

Like all other cases involving restrictions on capital punishment, the Court begins by quoting Trop’s statement on evolving standards of decencyThe logic used to decide this case, which is one of the more recent Court decisions involving capital punishment, relies heavily on precedents set in Thompsonand Atkins v. Virginia—the case that outlowed the execution of those with intellectual disabilities. Following the Court’s citation of Trop, the opinion launches into a discussion regarding the frequency of the application of the death penalty to those juveniles who are sixteen or seventeen at the time their crimes were committed, where it found that twelve states expressly prohibit capital punishment, eighteen exclude juveniles, and twenty have no such restrictions. The Court further found that since their ruling in Stanford v. Kentucky, which came a year after Thompson and allowed for the execution of seventeen- and eighteen-year olds, only six of those twenty states had carried out the execution of a juvenile. The Court thus stated that there is a “national consensus” present against the execution of juveniles.

After discussing frequency, the Court affirmed the findings from Thompsonand Atkins regarding the culpability of juvenile defendants, and the differences between ability and responsibility when it comes to adults and juveniles. The Court also reaffirmed their findings that capital punishment’s goals of retribution and deterrence were not applicable to juveniles.

The Court’s opinion ends with a discussion of international law, some of which was cited in Thompson, but some of which did not exist at the time or was not used as evidence. The Court first notes that the United States is the only country that still allows for the execution of juveniles. After acknowledging the United Nations Convention on the Rights of the Child, and the fact that this and other international treaties are fairly recent developments, the Court uses the United Kingdom as a particularly poignant case wherein capital punishment for juveniles was outlawed long before international treaties. The Court goes more in-depth in its discussion of the United Kingdom because the Eighth Amendment was borrowed, almost word for word, from the English Declaration of Rights of 1689.

3. Intellectual Disability

The final restriction on capital punishment is the categorical ban on executing those with an intellectual disability. As stated earlier, much of the logic fromRoper came from Atkins, however, there is some unique logic that is present inAtkins. Firstly, the Court showed that twenty-one states, plus the federal government, had completed or were in the process of banning the use of capital punishment for those with an intellectual disability. Although they acknowledged the absence of a “national consensus” like they would later find in Atkins, the court remarked that “the consistency of the direction of change” was sufficient to show a burgeoning national consensus. Furthermore, the Court found that the diminished “personal culpability” and of those with intellectual disabilities went beyond simply preventing the goals of retribution and deterrence like in Roper. It was found that the “reduced capacity” of these defendants provided numerous factors that could increase the risk that they would wrongly face the death penalty, including, but not limited to, an increased probability of false confessions.

By the time of Justice Blackmun’s retirement, he had reversed his previous stance. No longer did he support the legality of the death penalty while opposing it personally. In one of his final opinions (Callins v. Collins), he remarked the following, in his characteristically personal tone:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U.S. 463 (1993), relevant mitigating evidence to be disregarded, see, e.g., Johnson v. Texas, 509 U.S. 350 (1993), and vital judicial review to be blocked, see, e.g., Coleman v.Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

It was a stunning reversal by the Nixon appointee, but an influential one. Most recently, in Glossip v. Gross, Justice Bryer, joined by Justice Ginsburg, wrote a powerful dissent eviscerating the death penalty and stating categorically that it was unconstitutional:

The death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.

Although Justices Sotomayor and Kagan did not join the opinion, it is conceivable that they could in a case that directly challenged the death penalty itself, rather than the use of the three drug lethal injection that many states now use. Merrick Garland, a former prosecutor who successfully sought the death penalty for Oklahoma City bomber Timothy McVeigh, seems to be an unlikely candidate to overturn the death penalty. Kennedy too, seems to be a long shot, although he is very interested in the idea of dignity, especially when it comes to solitary confinement. Further, Justice Brennan’s cruscade against the death penalty relied heavily on the dignity argument, so it is conceivable that Kennedy could join an opinion abolishing the death penalty, especially since he would be able to choose who wrote it. Finally, there is the possibility of Kennedy leaving, opening up another vacancy for a President Clinton.

There is much at stake in this election, but it is the fate of the courts, both the highest and lowest, that will be the most influential. In the case of a Trump win, there will be pushback from a Democratic Senate. But, in the case of a Clinton win, there will be a dramatic remaking of the federal judiciary. Currently, 10% of district judgeships are vacant, along with 7% of appelate judgeships (and 11.111% of Supreme Court judgeships). A Clinton presidency would shift the courts dramatically to the left, and usher in a new era of legal decisions, the kind of which have not been seen since the Warren and Burger Courts.

Perhaps this shift will lead to changes with respect to the death penalty. Perhaps not. What is clear though, is that there will be a change. One can only hope that it will bend toward an evolving standard of decency.

This piece was originally published on Medium.

The views presented in this piece do not reflect the views of other Arbitror contributors or of Arbitror as a whole.

Photo: "Supreme Court of the United States" originally taken by Phil Roeder for Flickr with a CC BY-SA 2.0 license. Use of this photo does not indicate an endorsement from its creator.

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