Capital Punishment Now and in the Future
It is very likely that New
Hampshire will shortly join the eighteen states that no longer have a law that
sanctions the death penalty (The
New York Times, March 12, 2014).
That is a Good Thing, as 1066 and
All That would have it (if anyone is still familiar with that 1930 parody
of the way history was taught in English schools). Moreover, the states are repealing capital punishment at an
accellerated pace—an even Better Thing.
While Michigan was the first to take that step in 1846, things just
dribbled along in the 19th and 20th centuries, but
substantially speeded up in the 21st, with six states—a third of the
total—having done away with the death penalty since 2007, counting the
anticipated action of New Hampshire.
Why this applause? I am an opponent of capital punishment on the simple moral
ground that the state should not do what is a most serious moral offense if done by its citizens. But I have no hope that the Supreme
Court will ever get around to abolishing a practice that the rest of the
civilized West has managed to get rid of.
(Even the Russians—to whom we Americans feel morally so superior—have
indefinitely suspended the practice, with virtually no chance of a relapse.)
In its many decisions on the death penalty—there were
36 of them between 1968 and 2009—the Court was busy arranging the deck chairs,
not on the Titanic, but on the ship of the Flying Dutchman, which endlessly
keeps going nowhere in particular.
The ship would have been the Tittanic if a majority of the Justices were
to agree that the Constitution’s Eighth Amendment forbids capital punishment as
being cruel and unusual.
Please forgive a lay person’s radical
simplification. There are
essentially two reasons why that has not happened and is not likely to, not in
the foreseeable future. The first
rests on the fact that those who created the constitution did not take capital
punishment to be cruel or unusual.
Accordingly, jurists who are Originalists hold that today we must regard
the Constitution to consist of
what those who originally wrote it meant and intended to say. And clearly those framers condoned
hanging a person for all kinds crimes, not to mention for murder.
You will have to forgive me again, when I, no student
of the law, flatly declare the doctrine of Originalism to be an invitation to
sophistry. What would Madison have
said about privacy on the internet?
What would Hamilton have asserted about the use of drones in the pursuit
of terrorists? Most
understandably, the Federalist is
silent on these topics. To give an
answer is to make it up. The most
prominent exponent of this view, Justice Antonin Scalia does not succeed in
masking that sophistry with the vehemence and cleverness of his pronouncements:
look only at the “reinterpretation” of the Second Amendment that now, after
more than two hundred years to the contrary, is said to apply to individuals
rather than to the states’ militias.
A move was made to get the Court to deal frontally
with the Eighth Amendment, but it didn’t get very far. In 1962, Arthur Goldberg, recently
appointed to the Supreme Court, shocked his colleagues by circulating an essay
concerning capital punishment and the Eight Amendment that was not related to
any case before the Court. He
evoked strong opposition to his thesis and struck a sympathetic chord only with
two of his colleagues. They,
Justices William Brennan and Thurgood
Marshall, came to declare, in the 1972 case of Furman v. Georgia,
that the death penalty was in itself "cruel and unusual punishment" and incompatible
with the evolving standards of decency of a contemporary society. Not Originalists, they! Soon after this unusual effort by Justice
Goldberg, LBJ regrettably
sweet-talked him into resigning from the Court to become U.S. ambassador to the
United Nations.
This is as close—and it wasn’t
very close—that the Supreme Court has come to tackle that subject head-on. Still, this 1972 case most dramatically
suspended capital punishment in the United States. When considering a group of cases they found that the
procedures that led to the death sentence were in various ways biased or
otherwise flawed. Without agreeing
with each other about the specifics, a majority of Justices agreed to require
the states to cease and desist until they got their act together. And in that they were regarded as
having been successful, so that, equally dramatically, the decision in the 1976
case of Gregg v Georgia,
reinstated the death penalty, with only Brennan and Marshall dissenting. *
The fact that the Supreme Court
is unlikely to declare the death penalty to be “incompatible with the evolving
standards of decency of a contemporary society” does not mean that there are no
other reasons to question the practice, a number of which the Supreme Court has
considered. Thus, the Court sharply shrank the kind of crimes for which a death
sentence is permitted; it has set age limits below which capital punishment is verboten and, similarly, has forbidden
it if the convicted criminal is mentally retarded. There has been much discussion of the appropriateness—that
is, cruel or not cruel—of different methods of execution that have certainly
changed much over time. No final
solution—historical reference intended—is in sight.
Above all, there has rightly been
much concern about the fairness of all aspects of the procedures that lead to
conviction: from arrest, to jury selection and the trial itself, to the
processes of post-conviction appeals, or the lack of them. But surely, the single most important
issue of fairness, given America’s history and diverse population, is
bias—racial and to a lesser extent, ethnic. Again, this is a huge topic on which an immense amount has
been written. I provide a cursory
sample only to point to the number and kinds of chairs that get re-arranged on
the deck of the Flying Dutchman’s vessel.
Put not your hope in the Supreme
Court. Instead, put hope and
energy into the gradual process that eliminates capital punishment state by
state. It is no trivial matter for
a state to opt out, since a majority of legislators of two houses is needed,
plus the governor’s signature. But
the method of legislation offers one great advantage. The voters must agree only on the goal; they need not agree
on the reasons why they want the death penalty to disappear.
In principle, the motive for any
given vote might differ from every other.
That fact confers new relevance to the issues that have come before the
Supreme Court: each becomes a possible motive for a legislator’s vote—from the belief
that the punishment is indeed cruel to the view that the procedures are never
really fair. Indeed, when
considuring possible motives, the range of issues increases.
Here are two examples. The first—mundane but not
trivial—focuses on the cost of enforcing the death penalty. Millions of dollars are spent on the
inevitable appeal processes—on lawyers, on activities of the states’ judicial
bureaucracies and on the workings of the courts, up to the highest. And during those years—and there are
always many—the person sentenced to death is held on death row, at many times
the cost of maintaining a convict in prison for a sentence of life without the
possibility of parole. A vote to
disallow capital punishment might well be because it is too expensive.
The second is neither mundane nor
trivial and should weigh heavily for anyone who believes that mistakes in the
path to conviction will never be wholly eliminated. Attend to the following startling report:
DNA Exonerations Nationwide.
There have been 312 post-conviction DNA exonderations in
the United States. The
first DNA exoneration took place in 1989. Exonerations have been
won in 36 states; since 2000, there have been 245 exonerations. 18 of the 312 people
exonerated through DNA served time on death row. Another 16 were charged with capital
crimes but not sentenced to death. The average length of time served by
exonerees is 13.5 years.
The total number of years served is approximately
4,162.**
Thanks to the Innocence Project eighteen people sentenced to death were set
free. Others have been identified
who were not so lucky. They were
found to have been innocent of the crime for which they were sentenced—but after they had been executed. (See https://nakedlaw.avvo.com/crime/8-people-who-were-executed-and-later-found-innocent.html
by way of example.)
In 1765,
William Blackstone, the great English jurist, declared “better that ten
guilty persons escape than that one innocent suffer”; nor was this much-quoted
comment limited to the suffering of the death penalty. The Supreme Court cannot come to such a
conclusion, but a voting legislator can.
It may take some years, but a tipping point will be
reached when only a few states will have retained the law that permits the
death penalty, making not condoning
it the new norm. That may pull in
most or even all those odd-states-out, since the tendency to conform is
powerful. Perhaps more plausibly,
the point will come when a constitutional amendment to abolish the death
penalty can pass two-thirds of the legislatures. I won’t be around then, but my grandchildren well might
be. And they will be able join in
the applause that the deed was done, not by the imposition of unelected
justices, but the majority of the country’s citizens. And that would be a Good Thing.
