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.)
What is going on here? First, it is important not to view these scattered developments through rose-colored glasses. Mental retardation is in some ways an "easy" issue. Pretrial grumblings from district judges do not change the constitutional landscape. Thirty-five people have been executed in the first six months of the year. Both Atkins and Ring will probably save lives but do not overtly question the underlying principles and practice of capital justice. Indeed, this year the Court issued some little-noted but harrowing rulings, including approving the death sentence of an inmate whose attorney was mentally ill throughout trial and failed to make any closing argument; and Attorney General Ashcroft is pursuing the federal death penalty with unprecedented vigor. Governor Ryan's principled moratorium and his commission's proposed reforms may be DOA after November's elections, and the future of Maryland's moratorium is even shakier.
Yet something, clearly, is going on: The Supreme Court has changed its position, those federal judges do feel emboldened to speak out, that New Jersey public has changed its view. You can see some of this new dynamic at work in Maryland. Governor Glendening described his moratorium as a stance of principle--"We must have absolute confidence in the integrity of the process"--but in fact it was all about politics. Townsend, no liberal firebrand, supported a moratorium for her own political good: The moratorium was first proposed by the Maryland legislature's black caucus, and Townsend took her stand to secure those legislators' endorsement. That a self-described New Democrat and conventional law-and-order lieutenant governor would tie her political future to racial sensitivity in capital sentencing would have been inconceivable just a year ago. Now, even presidential candidate John Kerry has announced his support for a moratorium, which would have been declared suicidal in the past--and which may well elevate capital punishment to serious visibility in the 2004 presidential race. In other words, alarm about capital punishment has left the world of legal abstraction and liberal jurisprudence to enter the political mainstream.
That lesson is amplified and clarified by the Supreme Court's ruling in Atkins, the mental retardation case. In terms of Supreme Court Kremlinology, it was important but not entirely surprising to find Justice Sandra Day O'Connor--who had written the Court's 1989 ruling supporting execution of the retarded--reversing herself: Last summer O'Connor voiced highly publicized doubts about the quality and credibility of capital trials and the likelihood that innocent people have been executed. Just as important was the signature on Atkins of Justice Anthony Kennedy, whose aspirations to succeed William Rehnquist as Chief Justice have lately been the subject of an intense Washington rumor mill.
The real news, however, lies in the terms of the decision itself, and the fact that these terms are accepted by Justices across the political spectrum. Justice Stevens's majority opinion traced the Court's reconsideration back to "public reaction to the execution of a mentally retarded murderer in Georgia" in 1986. [Emphasis added.] Stevens noted the steady passage of bans on executing the retarded over the years since, and rooted the opinion in a pointed citation from Chief Justice Earl Warren regarding "evolving standards of decency that mark the progress of a maturing society"--a knock upside the head to original-intent jurisprudence.
The decision's richest long-term implications are found in the footnotes. Footnote 21 places the Atkins decision in a transnational context: "Within the world community the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved," Stevens wrote, citing an amicus brief filed by the European Union--virtually inviting further intervention from death-penalty opponents abroad. Footnote 25 is a window into just how deeply the Supreme Court's own internal death-penalty consensus has been rattled: "We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated." Both suggest that the Court's traditional death-penalty reasoning is under uneasy review. A furious Chief Justice Rehnquist rose to the bait in his dissent, denouncing the "Court's decision to place weight on foreign laws." Justice Antonin Scalia went even further: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
In a sense, Scalia is right. If the Court is newly uneasy about capital punishment, it is not because of some novel view of the Constitution. Instead, Atkins--even more deeply than the Maryland moratorium--suggests a lesson of immense importance to death-penalty campaigners: Politics matters. Grassroots activism matters. Last year, anti-death penalty advocates in Connecticut convinced the state legislature to ban executions of the retarded even though none of the seven individuals on Connecticut death row meet that standard. A seemingly meaningless reform--yet a year later it was cited by the Supreme Court among the evidence of an emerging consensus. Pressure from abroad matters: By citing the EU amicus brief instead of a similar argument by retired US diplomats, the Supreme Court majority sent a clear invitation to further expressions of world opinion.
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.