Moving Toward Life Sentences
The death penalty has become less frequent in the United States, but that doesn’t mean it will be abolished any time soon.
By Matthew Corritore
October 21, 2008
(istockphoto.com)Last year, New Jersey became the first state to outright abolish its death penalty since 1965. And despite upholding the constitutionality of Kentucky’s lethal injection procedure in April of this year, in June the Supreme Court concluded the execution of child rapists is illegal.
By all outward appearances, the death penalty in the United States faces an uncertain future. Ever since the Supreme Court reinstated capital punishment in 1976’s Gregg v. Georgia, its use has been gradually restricted. In 2007, 42 inmates were executed, down from a post-Gregg high of 98 in 1999. Fourteen states and the District of Columbia don’t have death penalty statutes; 3 more (Excel doc) haven’t executed anyone in four decades. Meanwhile, Illinois granted clemency to all 167 of its death row inmates in 2003 citing a flawed sentencing process. The emergence of reliable DNA evidence has led to the exoneration nationwide of more than 200 wrongly convicted people.
Courts have limited who can be put to death and outlawed some execution procedures, while New York’s court of appeals even ruled the state death penalty law unconstitutional. There’s debate among some scholars and death penalty opponents whether the restrictions placed on capital punishment post-Gregg have really put abolition within reach.
The popular opinion factor
The most emphatic way that executions could be stopped is if the Supreme Court found death an inherently unconstitutional punishment—that it violates the Eighth Amendment’s prohibition of “cruel and unusual” punishments. A court precedent can be undone, but that occurs with far less frequency than does the reversal of state and federal laws by legislators. But just because a Court ruling is the key to abolition doesn’t mean litigation is the sole mean to this end. The Court’s 1958 Trop v. Dulles decision established the standard justices would use in Gregg and henceforth to assess death penalty challenges: A punishment is cruel and unusual if it is at odds with the “evolving standards of decency that mark the progress of a maturing society.”
This standard made public opinion directly relevant to legal challenges against capital punishment. Death penalty opponents gained a new avenue through which to attempt to overturn capital punishment’s constitutionality. So they shifted resources from lawsuits to educating the public and state legislatures about purported problems with capital punishment. “The whole forum changed from the courts to the legislature,” said Renny Cushing, executive director of Murder Victims’ Families for Human Rights, an anti-death penalty group. “Gradually there’s been recognition that the battle has been taking place on a state-to-state basis.”
Chipping away at capital punishment?
As anti-death penalty groups began more grassroots education and lobbying efforts, the Supreme Court kept a foot in the door by placing limitations on the use of the death penalty. 1977’s Coker v. Georgia made death for rape of an adult woman unconstitutional. 1986’s Ford v. Wainwright banned the execution of the insane. In 2002, the Court ruled that the execution of the mentally retarded was cruel and unusual, and in 2005 it ended the execution of juveniles. Despite upholding Kentucky’s lethal injection procedure in Baze v. Rees in April 2008, the Court just a few months later deemed that punishing child rape with death is unlawful.
Emboldened by these legal victories and some success delaying executions in states, reformers are generally optimistic about the prospect of abolition. “Abolition is inevitable,” said Cushing, seeing “the development of a broad political movement that is based in states that has supported legal developments.”
This optimistic viewpoint holds that courts are gradually “chipping away” at capital punishment in response to evolving societal views, first banning its more egregious manifestations on its way to striking down the death penalty itself. Justice John Paul Stevens articulated this view in his Baze opinion, writing, “Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug [lethal injection] protocol…but also about the justification for the death penalty itself.”
The death penalty’s real status
In contrast, some commentators challenge the notion that the restrictions placed on capital punishment foretell a steady march towards abolition. Journalist Dahlia Lithwick coined the term “Happy Death Box” to describe the widely-accepted execution procedure that may result from reformers’ demands for painless, sterilized lethal injections. “Tender and loving” executions could be detrimental to abolition, she argues, because the Happy Death Box could “mitigate the outrageousness of the state taking a human life.”
Nicholas Levi applies the same logic in a law article (PDF), arguing that capital punishment was on the verge of abolition in the early 1800s, just before private execution laws were enacted that have since prevented the public from realizing the brutality of capital punishment.
In the same way, limiting who can be executed to the opinions of those the public perceives as most “culpable” could fuel beliefs that only the worst of the worst criminals are put to death (think about the popular execution of Oklahoma City bomber Timothy McVeigh), masking other purported flaws in the process that opponents say produce arbitrary, sometimes racist death sentences.
Some in the anti-death penalty movement, like Executive Director of Project Hope to Abolish the Death Penalty Esther Brown, think there is this slim risk. “There is of course that danger,” she said referring to the possibility a restricted but popular application of the death penalty will develop. But she stresses reform “does save lives,” leaving her and others few options. Ultimately though, Brown is still confident her organization can persuade state legislators that a moratorium on executions is necessary to study problems with the death penalty (albeit that effort, in Alabama, was unsuccessful this year).
Perhaps the key question is whether campaigns to restrict how the death penalty is used also educate the public about its other alleged flaws. Most death penalty opponents think they do. “The Supreme Court helped just to start dialogue that the practice was going on,” said Hooman Hedayati, president of Students Against the Death Penalty (SADP) and a Campus Progress representative, speaking about the Court’s ruling against death for child rape. “Even as courts have tried to make it more humane, it still is the same barbaric and cruel practice,” he said, emphasizing that the public is more concerned than ever about its flaws.
Abe Bonowitz, spokesperson for the National Coalition to Abolish the Death Penalty, agrees. “Anything that limits the death penalty is a good thing. It gets more people talking about it and paying attention to it.”
The obstacles to abolition
The effect of death penalty restrictions aside, other roadblocks may disrupt the drive towards abolition in the long run. For one, it seems unlikely the Supreme Court will soon reverse the 1976 precedent that reasserted the death penalty’s constitutionality. And barring an influx of progressive new justices, the Roberts Court is not soon expected to agree to hear a direct challenge of the death penalty itself.
But perhaps the biggest barrier is the Fifth Amendment. It specifically mentions “capital” crime, giving judges license to claim the founding fathers expected death sentences would long be part of American society. A creative ruling that reconciles the Fifth and Eighth Amendments would be decidedly out-of-character for the Roberts court.
Optimists point to a 2006 Gallup poll that showed for the first time respondents were statistically tied about whether life imprisonment without parole was preferable to a death sentence. But the Court’s lackluster record interpreting the Eighth Amendment is enough to raise doubts that the Court would take new change into account. Benjamin Wittes, fellow and research director at the Brookings Institution, argues that the Court has failed to even consistently define the Eighth Amendment’s meaning; these are hardly fertile conditions for a momentous judicial consensus against capital punishment.
But some death penalty opponents think the Court’s erratic jurisprudence could work in their favor if there was irrefutable evidence of popular opposition to capital punishment. Hedayati argues that “often justices just go by public opinion” when deciding death penalty cases. “When the Supreme Court rules against the death penalty, most American people tend to be against [that application of] the death penalty,” he said.
Building grassroots opposition
But even if substantial popular opposition to the death penalty would satisfy the Court’s “evolving standards of decency” qualifier, there may still be serious impediments to amassing high support for abolition. As Wittes points out, current signs of growing public disenchantment with capital punishment may just be a reflection of declines in the national crime rate since 1990. If crime rises again, so could support for executions.
Also, several states are responsible for the vast majority of executions annually. In 2007, Texas alone was responsible for 62 percent of executions; the top six executing states made up 90 percent of the annual total. It is difficult to envision executives or legislatures halting executions in these states. In fact, legislation to abolish the death penalty or enact moratoriums on executions was introduced in a handful of states this year, including Maryland, Connecticut, Nebraska, Virginia, and Alabama. None of the bills passed.
Challenges withstanding, opponents are nevertheless adamant that abolition is coming. “People are concerned about unfairness and protection of an innocent person,” said Abe Bonowitz. “We always will have arbitrary facts deciding who ends up with the death penalty and not the worst of the worst.”
And to the surprise of some, opponents are making some headway even in what Brown describes as “southern, blood-thirsty states.” Last year, anti-death penalty groups in Texas convinced Governor Rick Perry to commute Kenneth Foster’s controversial death sentence to life-in-prison with chance for parole just hours before his scheduled execution. Describing SADP’s involvement—along with the support of others—in the effort, Hedayati said that “we showed last year it is possible to come and stop the death penalty in Texas.” In light of such efforts, the future of the death penalty is uncertain. Unless grassroots activists can sway the public, they may come to accept a restricted form of death, making the death penalty an enduring national institution. But only time will tell.
Matthew Corritore is a senior at Brown University and Editor-in-Chief of the Brown Contemporary, part of the Campus Publications Network.
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