The Supreme Court's Narrow Majority to Narrow the Death Penalty
By David S. Friedman
As with so many controversial subjects, the U.S. Supreme Court's death penalty jurisprudence hangs in a precarious 5-4 balance. During the past twenty-five years, the Supreme Court has gradually narrowed the application of the death penalty. Yet, with the next vacancy on the Court, the appointment of a justice who strongly favors the death penalty could end this progress and remove many significant limits on capital punishment.
At first blush, the current Supreme Court might seem committed to letting states freely impose capital punishment. In fact, however, it has narrowed the types of cases in which the death penalty may be imposed: A state may only execute sane adults for committing murder (or felony murder) at age sixteen or over. For no other crimes can the death penalty be applied. Yet the boundaries remain unsettled. This year, for instance, the Court will reconsider whether mentally retarded persons may be executed. See McCarver v. North Carolina, No. 00-8727, cert. granted, Mar. 26, 2001.
The Court has also narrowed the death penalty by guaranteeing that, in many cases, juries will be able to weigh the death penalty against the alternative of a life sentence without possibility of parole. Without that safeguard, juries would vote for death sentences in many more cases.
The Court has adopted these important limits by the narrowest of margins. Justice O'Connor is now almost always the key swing vote. In some cases, she joins a bare majority with Justices Stevens, Souter, Ginsburg, and Breyer to place limits on the death penalty without abolishing it. In others, she joins Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, who almost always vote against limits on capital punishment.
Twenty-Five Years of the Death PenaltyIn 1976 the Supreme Court reinstated the death penalty in the United States. Four years earlier, it had enforced a nationwide moratorium on capital punishment in Furman v. Georgia, 408 U.S. 238 (1972), a 5-4 case that is the longest decision ever to appear in the U.S. Reports. The Furman Court found that the laws of all thirty-nine states with the death penalty, as well as the District of Columbia and the federal government, violated the Eighth Amendment's ban on "cruel and unusual punishment." Those statutes, as enforced, were too arbitrary, broad, and unreliable. In the words of Justice Stewart, under the existing system, receiving a death sentence was as predictable and fair as "being struck by lightning." Id. at 309.
In 1976, the Court upheld three new state statutes designed to cure those flaws, thus allowing states to resume capital punishment. Gregg v. Georgia, 428 U.S. 153 (1976), and accompanying cases. Thirty-five other states also have reinstituted death penalty laws, though Illinois imposed a moratorium on all executions in January 2000.
Since 1976, the Supreme Court has shown little interest in establishing protections to prevent the execution of innocent people. To the contrary, it has created increasingly tough procedural rules for appeals of death sentences, especially for state prisoners who seek habeas corpus review in the federal courts. Even so, a nationwide study published last year by Columbia Professor James Liebman found that 68 percent of death sentences that are appealed are overturned.
The Supreme Court also has shown little concern with the racial dynamics of capital punishment. It has refused to intervene despite powerful evidence that the death penalty is applied in a racially discriminatory manner. In a 5-4 decision in 1987, the Court held that this evidence did not establish an equal protection violation. McCleskey v. Kemp, 481 U.S. 279 (1987). In many respects, the Court's narrow majority has adopted a minimalist role in defining constitutional limits on the death penalty.
Death-Free CategoriesIn a series of cases, the Court has ruled that the Eighth Amendment bars execution of certain categories of offenders. The test is whether the death penalty in those categories is cruel and unusual, measured against "evolving standards of decency that mark the progress of a maturing society." Penry v. Lynaugh, 492 U.S. 302, 330-31 (1989). The Court considers whether there is a national consensus against executions in a particular category by looking at legislation by the states, public opinion polls, and actions of sentencing juries. The Court also asks whether the death penalty applied to the particular category of offenders serves the goals of deterrence and retribution.
Using those tests, the Court has narrowed the death penalty to cases involving murder, not lesser crimes. In 1977, the Court voted 6-3 (over Chief Justice Rehnquist's dissent) that the death penalty can never be imposed for rape alone. Coker v. Georgia, 433 U.S. 584 (1977). The Court has also barred execution of criminals who merely aid and abet a felony that results in murder by co-criminals (felony murder) but who do not intend or attempt to kill anyone. Enmund v. Florida, 458 U.S. 782 (1982) (5-4 vote, with Chief Justice Rehnquist and Justice O'Connor dissenting). Since the addition of Justice Scalia, however, the Court has expanded the scope of capital punishment in these cases. In 1987, Justice Scalia joined Chief Justice Rehnquist and Justice O'Connor in a 5-4 decision allowing the execution of a criminal for felony murder when he did not inflict the fatal wound and did not intend to kill but was recklessly indifferent. Tison v. Arizona, 481 U.S. 137 (1987). Thus, the Court has narrowly recognized that death is a disproportionate, excessive penalty for all crimes except murder and reckless felonies that result in murder.
The Court has also ruled, by a one-vote margin, that the Eighth Amendment bars the death penalty for crimes committed by persons under age sixteen. In 1988, a plurality (including Justice Stevens) held that the national consensus required that rule. Thompson v. Oklahoma, 487 U.S. 815 (1988). Chief Justice Rehnquist and Justice Scalia dissented from that decision. The following year, a 5-4 majority (including Chief Justice Rehnquist, Justice O'Connor, and Justice Scalia) upheld the death penalty for crimes committed at ages sixteen or seventeen. Stanford v. Kentucky, 492 U.S. 361 (1989). For offenders who are under age sixteen at the time of the crime, the Court has narrowly ruled that the death penalty provides little deterrent value and is disproportionate to the criminal's guilt.
Just as there is a national consensus against executing people for crimes committed at a very young age, there is consensus against executing those who are insane. The Court has banned the execution of any prisoner who cannot comprehend, and is unaware of, his or her impending execution and the reason for it. Ford v. Wainwright, 477 U.S. 399, 422 (1986). This common-sense ruling was also adopted by a 5-4 margin, over the dissenting voices of Chief Justice Rehnquist and Justice O'Connor.
Persons with Mental Retardation: The Next Step?The next step in the category-by-category narrowing of the death penalty may be a ban on executing persons with mental retardation. This fall, in McCarver v. North Carolina, No. 00-8727, the Supreme Court will consider whether evolving standards of decency have formed a social consensus on the issue. In 1989, the Court declined to stop the execution of mentally retarded people. Penry v. Lynaugh, 492 U.S. 302 (1989). In that 5-4 case, Justice O'Connor was the swing vote in favor of execution. She emphasized that only two states had prohibited death sentences for mentally retarded persons, and just fourteen other states had rejected capital punishment altogether.
There is reason for Justice O'Connor and others to overrule Penry and put an end to the execution of persons with mental retardation. Since 1989, fifteen more states and the U.S. Congress have passed laws barring death sentences in these cases. Several other states are considering such laws and a firm majority of Americans opposes executing mentally retarded criminals. These executions serve no deterrent value and are disproportionate to the offenders' moral culpability.
The Court's upcoming decision in McCarver will have major ramifications. If the death penalty is rejected for persons with mental retardation, it would be a logical, relatively small step to find that it is also cruel and unusual punishment to execute persons with mental illness who are not insane. Offenders with serious psychological problems are morally and legally responsible for their actions, but putting them to death does not deter violent crime, nor can it be seen as just punishment. A large portion of murderers have serious mental illness and would fall within this category.
Because the Court's Eighth Amendment test turns on society's evolving standards of decency, action at the state level is enormously important to the Supreme Court's gradual narrowing of the death penalty's scope. State legislation and moratoriums to limit or halt capital punishment drive the Court's constitutional rulings. At the same time, the current state of national consensus is, to a large degree, in the eye of the beholder. Some justices (such as Justices Stevens and O'Connor) are willing to examine the state of social consensus more flexibly. Others (such as Chief Justice Rehnquist and Justices Scalia and Thomas) have consistently voted against limiting the death penalty's scope, even for crimes by sixteen-year-olds and the insane; they seem never to believe that there is a national consensus against the death penalty for particular categories of offenders.
Choosing between Death and Life without ParoleThe Supreme Court has also narrowly acted to ensure, at least in limited circumstances, that juries make informed choices between death sentences and the alternative of life without parole. Criminals who commit violent murders deserve severe punishment that will prevent them from killing again. That punishment need not be death, however. A life sentence without any possibility of parole serves the goals of incapacitation and retribution while avoiding the risk of executing innocent people.
Public opinion polls show that support for the death penalty drops when people are asked whether they prefer it to the alternative of a life sentence without parole. Brown v. Texas, 522 U.S. 940, 941-42, n.2 (1997) (opinion of Justice Stevens respecting denial of certiorari). For instance, in four separate polls taken in June and July 2000 by Fox News, CNN/USA Today/Gallup Poll, ABC News.com, and Harris Poll, when respondents were asked whether or not they favored the death penalty, between 63 percent and 68 percent said "yes." But in separate polls by ABC News.com and Gallup Poll in January and February 2000 (taken before the release of Professor Liebman's powerful study), people were asked if they preferred the death penalty to life with absolutely no possibility of parole, and only 48 percent and 52 percent, respectively, favored capital punishment.
The Supreme Court has cautiously acted to ensure that juries are informed about the alternatives to a death sentence. In Simmons v. South Carolina, 512 U.S. 154 (1994), the Court held that when a defendant's "future dangerousness" is at issue, the jury must be accurately informed whether there is any possibility of parole under the alternative lifetime sentence. The federal Due Process Clause thus bars prosecutors and trial judges from misleading juries. This year, the Court reaffirmed its Simmons due process rule by a solid 7-2 margin, over the dissents of Justices Scalia and Thomas. Shafer v. South Carolina, 121 S. Ct. 1263 (2001). However, a different five-justice coalition in Simmons (including Justices Scalia and Thomas) indicated that the rule is limited. When the prosecution does not present evidence about the defendant's future dangerousness, the trial court may bar the jury from considering whether there would be any chance of parole under a life sentence.
The Simmons rule, when applicable, enables juries to make fully informed sentencing choices. Given the public's ambivalence about the death penalty when compared to life without parole, this rule will inevitably reduce the number of death sentences awarded by juries. But that is not the rule's purpose. It merely guarantees that a sentencing jury will be fully and accurately informed of the available alternatives when a person's life is at stake.
Basic concepts of fairness and due process would clearly seem to entitle defendants to inform juries of the consequences of an alternative sentence. Yet Justice O'Connor has joined the Court's more conservative bloc in refusing to extend the Simmons rule an inch beyond its specific contours. In a series of 5-4 decisions, the Court has split along the now-familiar Bush v. Gore lines, with the Bush majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) taking the following positions:
- A jury need not be informed that the defendant probably would not be eligible for parole if he receives a life sentence. Ramdass v. Angelone, 530 U.S. 156 (2000);
- A jury need not be informed that the defendant would not be eligible for parole for thirty-five years, by which time he would be a senior citizen. Brown v. Texas, 522 U.S. 940 (1997) (opinion of Justice Stevens respecting denial of certiorari); and
- If a trial court violates a defendant's right to inform the jury about the true meaning of life without parole, on appeal the defendant must carry the heavy burden of proving that a properly informed jury would have voted for a life sentence instead of the death penalty. Calderon v. Coleman, 525 U.S. 141 (1998).
Justices Scalia and Thomas acknowledge that the logical extension of the Simmons due process rule would give the defendant the right to present evidence concerning the true meaning of a life without parole sentence-for instance, that murderers almost never get paroled. Simmons, 512 U.S., at 184-85. But these justices are unwilling to accept even the basic Simmons rule requiring juries to know when there is absolutely no chance for parole under a life sentence. At the same time, they and their colleagues believe that prosecutors may tell juries about the speculative possibility that the governor could commute life sentences to release convicts. California v. Ramos, 463 U.S. 992 (1983) (5-4 decision). The next Supreme Court appointee may well decide whether Simmons is a limited, narrow rule or whether it is extended to its logical conclusion as a full-fledged due process right for defendants who face the ultimate sanction.
With a Bad Lawyer, Does It Matter?A defendant's right to inform the jury of alternatives to a death sentence will make little difference if the defendant has a bad lawyer. Many defense lawyers in death cases are inexperienced, overworked, or simply unqualified, and they fail to make strong cases against the death penalty at the sentencing phase of trials. The poor caliber of legal representation is a gaping flaw in America's capital punishment system.
Some states have taken steps to address the problem, despite the fact that the Supreme Court's current majority interprets the Sixth Amendment right to counsel narrowly as setting the barest of minimum standards. This past April, Justice Ginsburg spoke out on the poor quality of trial lawyers in many capital cases. Justice O'Connor echoed similar concerns in a speech in July 2001, suggesting that she might be willing to revisit the "minimum standards for appointed counsel in death cases." If the Court acts to address this major problem, it will most likely be by a narrow margin; more likely, the court will leave it to the lower courts and the political process.
Lives in the BalanceFor the foreseeable future, the Supreme Court will not abolish capital punishment. It may, however, continue to prohibit it in some categories of cases. It may also continue to insist that sentencing juries weigh the death penalty against the humane alternative of life without parole, at least in some cases. These steps to narrow the death penalty have real consequences: They literally spare the lives of hundreds of defendants. But the death or retirement of a single Supreme Court justice could easily tip the Court's balance and expand the scope of the death penalty in America.
David S. Friedman is an associate at Hill & Barlow in Boston. He was a law clerk to Supreme Court Justice John Paul Stevens from 1997 to 1998 and has done extensive pro bono work for persons with mental retardation.
