Rethinking the Death Penalty
"It is not so much the number of these States that is significant, but the consistency of the direction of change," wrote Justice John Paul Stevens for the Supreme Court on June 20. Stevens, on behalf of six of the Court's nine Justices, was talking about the execution of mentally retarded murder defendants, and eighteen states that have banned it in the past fifteen years. That "consistency of direction" led the Court to reverse its own longstanding support of death sentences for those with severely limited intellectual capacity.
The immediate impact of the Court's ruling was to save the life of Daryl Atkins of Virginia, IQ 59, fingered by a non-retarded accomplice as the triggerman in a 1996 ATM robbery gone bad. More broadly, it means sentences commuted to life for as many as 300 retarded inmates on death rows in twenty states--the single most sweeping limitation of capital punishment since the Supreme Court restored execution in 1976.
Impressive as it is, the "consistency of the direction of change" represented by the Atkins v. Virginia decision does not end with retarded death-row inmates. In fact, the Court's ruling caps a season of unanticipated terrain-shifting in the long national argument over capital punishment. Despite predictions that the attacks of September 11 would sideline the death-penalty debate and generate an angrier, more vengeful criminal justice climate, for the first time since 1976 momentum seems to have turned against capital punishment in courts, politics and important sectors of the public. Over the course of just the past few months:
§ On July 1 US District Judge Jed Rakoff declared the Federal Death Penalty Act unconstitutional, citing "an undue risk of executing innocent people." Judge Rakoff's ruling could be seismic in import if the 2nd Circuit Court of Appeals agrees. In California US District Judge Thelton Henderson recently hinted that he is ready to find capital punishment in the nation's most populous state so arbitrarily imposed that it violates the Eighth Amendment ban on cruel and unusual punishment.
§ Maryland's Governor Parris Glendening imposed the nation's second state-level moratorium on executions pending a study on racial bias--a moratorium supported by ostensibly pro-capital punishment Lieutenant Governor Kathleen Kennedy Townsend, running to succeed Glendening as governor. New York's City Council called for a similar moratorium as the state's first contemporary capital cases approach their final appeals.
§ Illinois's Capital Punishment Commission, appointed by Governor George Ryan after the exoneration of thirteen death-row inmates--evenly comprising both pro- and anti-capital punishment members--proposed sweeping reforms that would dramatically raise the bar for capital sentencing while questioning whether even those reforms would end the risk of execution of the innocent. The commission's chair, a formerly pro-death penalty US Attorney, now says that salvaging the Illinois system would simply cost too much and should be written off as a waste of taxpayer money. Ryan, who as a legislator voted to create Illinois's current capital laws, is contemplating following up the moratorium he imposed two years ago by commuting the sentences of all current Illinois death-row inmates before he leaves office in January.
§ A May 30 Rutgers Eagleton poll in New Jersey--where in 1999 an overwhelming majority backed capital punishment and where the first executions in decades are now in sight--found support for the death penalty down to 36 percent. The same poll found that 66 percent of New Jerseyans support a moratorium on executions and a study of potential bias and miscarriages of justice.
§ In addition to its decision in Atkins, the Supreme Court agreed that death-row inmates are entitled to lawyers who remain awake during trial and sentencing, ending the scandalous epidemic of Sleeping Lawyer Syndrome, long endorsed by Texas courts [see Shapiro, "Sleeping Lawyer Syndrome," April 7, 1997]. Even more dramatic, on June 24 the Court cast into doubt as many as 150 death sentences handed down by judges instead of juries--in particular, numerous cases in which an execution-minded judge overruled a jury's recommendation for a life sentence. The ruling, Ring v. Arizona, sent nine states back to the drawing board to draft new capital laws. (Although it is rather technical in its underlying principles, the overall effect of the Ring ruling will be to take capital sentencing away from judges, who are more likely than juries to approve execution.)