Rethinking the Death Penalty
This is a significant departure from the last time the Supreme Court limited, and too briefly banned, capital punishment in the 1960s and 1970s. The great death-penalty rulings of the Warren Court, coming at a time when most states and countries had capital punishment on the books, rested primarily on the personal civil rights commitments of Justices like William Brennan and Thurgood Marshall. But this time around, the Court seems almost willing to take as its motto Franklin Roosevelt's famous advice: "OK, you've convinced me. Now go out and put pressure on me." It is clear that those "evolving standards of decency" are very much a moving target, at a time when public opinion is in flux. It is also clear that even conservative law-and-order members of the judiciary are genuinely alarmed by the cascade of innocence cases, atrocious capital trial lawyering and public perceptions of unfairness. O'Connor and Kennedy seem worried that the public will lose confidence in capital justice, and they are trying to narrow the death penalty in order to save it. Indeed, it is looking more and more like one of the challenges to come for death-penalty abolitionists will be to keep public pressure up in the face of quick fixes and modest improvement in capital representation.
None of this explains just why the death penalty seems so newly vulnerable to reconsideration. If anything, the pace of innocence stories has declined in recent months--the 100th inmate to be exonerated and freed from death row scarcely made headlines. And the aftermath of September 11 effectively shut down death-penalty politics for several months, even as cases continued to work through the courts. In addition to long-term strategies now bearing fruit, could part of the answer be a surprising response to September 11? It is only because of the war on terrorism, for instance, that the largest US news outlets have reported on Europe's profound opposition to capital punishment, to the point of refusing to extradite Al Qaeda suspects. In a broader sense, the war in Afghanistan held up a curious mirror: It's impossible to escape the fact that capital punishment unites America with the Taliban (not to mention Iran, Iraq and Saudi Arabia) and divides us from our European allies and most of the world's nations.
Whatever the reason, it is clear that we are now in the midst of a full-scale battle over the future of capital punishment. According to Professor Scott McLean, a Quinnipiac University Polling Institute study this spring found that the supposed consensus in favor of the death penalty "is just a mirage. We found worries about false convictions and unfair application of the death penalty to minorities and the poor. And when we asked the public to consider an alternative punishment for murder, it is evenly divided between the death penalty and life without parole."
Now that mental retardation has been resolved, this suggests shifting the spotlight to other, equally grotesque dynamics of the capital-justice system. Initiatives like Senator Patrick Leahy's Innocence Protection Act, which would fund capital lawyering throughout the country, are ripe for support, as are calls for moratoriums in more states or even nationwide, as proposed last year by Congressman Jesse Jackson Jr. and endorsed this spring by Senators Russell Feingold and Jon Corzine. It may even turn out that a few of those nine death-penalty states whose judicial sentencing schemes were tossed out by the Supreme Court in Ring will see their legislatures reopening the basic question of capital punishment instead of merely tinkering with the machinery of death.
The next pivotal moment is likely to come sometime in the fall, when Governor Ryan will decide whether to commute the sentences of Illinois's current death-row population. It's an emotionally resonant prospect and an essential goal, but it also contains some peril of backlash. Death-penalty opponents must use the months until then to keep questions about the death penalty's equity, fairness and even financial cost on the public agenda, so if Ryan acts his decision carries maximum credibility.
For activists, here's the message: When it comes to capital punishment, grassroots politics matters in new ways. A national moratorium is still far off. But challenges to the death penalty have an undeniable momentum. If that continues, it is possible to imagine not just a moratorium but a new abolition--securely rooted in the political system rather than dependent upon the whim of nine Justices.