The National Law Journal
November 16, 2015
he Nebraska Legislature in May 2014 overrode the governor's veto of a bill repealing the state's capital punishment law. In October of this year, a successful drive by death penalty supporters to force a referendum on the issue culminated in the law's suspension. More startling than conservative Nebraskans' ambivalence about a charged topic is this development's stark contrast with the growing opposition to the penalty that has arisen in the 21st century. Lately, it is only picking up speed.
Witness, for example, the statement in June by dissenting U.S. Supreme Court Justice Stephen Breyer, joined by Ruth Ginsburg, in Glossip v. Gross. In that decision, which rejected an Eighth Amendment attack on Oklahoma's lethal-injection method, the two called for full briefing on whether capital punishment violates the Constitution. They concluded that it "very likely" does.
In a 2008 case, Baze v. Rees, upholding Kentucky's execution protocol, Justice John Paul Stevens also urged the court to reconsider the global question and announced his renunciation of the penalty (although, based on precedent, he reluctantly joined the majority opinion.)
More radically, Justice Harry Blackmun, in a dissent from a denial of certiorari in Callins v. Collins, proclaimed in 1994: "From this day forward, I no longer shall tinker with the machinery of death," in a dissent from a denial of certiorari. He thereby associated himself with the absolutist position consistently taken by Justices Thurgood Marshall and William Brennan. It is unclear whether Breyer and Ginsburg will now refuse to sustain a death sentence in any context. Interestingly, Justice Antonin Scalia, who denounced the Breyer-Ginsburg statement as "gobbledy-gook," recently remarked he "wouldn't be surprised" if his colleagues abolished capital punishment.
Laws on the books
Facts on the ground may be mooting the issue, as a practical matter — at least in most parts of the country. Breyer's four-pronged challenge to the penalty's constitutionality — it is unreliable, arbitrary and subject to excessive delays (hence, cruel), and it is rapidly disappearing (hence, unusual) — heavily relied on these realities. Statistics pointedly illustrate his arguments. For one thing, laws on the books are changing. In 1972, when Furman v. Georgia nullified all existing capital statutes, only nine states had no death penalty. That number has risen to 19 (with Nebraska). Seven states have embraced abolition in the last decade.
Further, the laws as written tell a misleading tale. From a high of 98 in 1999, executions have plummeted to 35 in 2014. Since 2009, the decline has been steady, with the exception of one "flat" period in 2010 and 2011.
This year the slump seems poised to continue. Even active death penalty jurisdictions like Virginia have seen steep diminutions in new death sentences. There were 73 last year, compared with numbers in the hundreds from 2001 to 2010, and in the two hundreds earlier.
It seems highly likely that one circumstance "spooking" jurors, and contributing generally to the lessening public support for the penalty reflected in polls, is the mounting total of exonerations of death row inmates — at least 115 to date. Although DNA testing has proven a major factor in establishing innocence, revealed pitfalls of more traditional forms of evidence such as stranger identifications and certain types of forensic proof (microscopic hair evidence, for instance) have also undermined convictions, often decades after judgment.
Heightened scrutiny certainly makes discovery of these miscarriages of justice more probable in capital cases. But as Breyer and Ginsburg noted in Glossip, flawed prosecutions, including withholding of exculpatory facts, and erroneous findings of guilt may also be likelier in this setting because of the greater pressure to convict where a murder is especially notorious or gruesome.
In recent years, legislatures have given juries the life-without-parole alternative to death sentencing. Because this option provides them with an acceptable means of acting on any residual doubts (or moral qualms), it has helped to fuel the retreat from capital punishment.
So, too, almost certainly, have the data showing the huge marginal expense of capital proceedings. Special procedures, such as death-qualification of jurors and a separate penalty phase, impose large costs, as do mandatory appeals, with frequent reversals resulting in further trials and appeals. It is, therefore, unsurprising that in Texas — the state with the third-largest death row, the leader nationally in executions — a capital case on average demands an outlay of $2.3 million, approximately three times what is needed to incarcerate a prisoner under maximum security for 40 years. And since fewer such prosecutions now result in a death penalty verdict, small wonder that lawmakers increasingly feel the game is hardly worth the candle.
Fortunately, in part because of increased funding, representation of capital defendants has vastly improved in recent years. In earlier days, its level was so uniformly low that Steven Bright, a leading death penalty attorney, called the punishment one "not for the worst crime but for the worst lawyer." This enhancement of standards, largely due to the spread of specialized resource centers and statewide defender organizations, has also contributed to the obsolescence of capital verdicts and sentences: obtaining these is no longer like shooting fish in a barrel.
Simply put, if Furman II ever comes to pass, it may amount to only the last nail in the coffin of the American death penalty. The people of this country will probably have effectively interred it long before the Supreme Court.