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.