There has been some commentary recently, in the popular press no less, speculating as to whether the Supreme Court will take up a death penalty case that directly raises the question of whether capital punishment is per se unconstitutional. A NYT piece is here. A piece in The Hill is here. The speculation, I think, is badly overstated.
Much of the speculation stems from Justice Breyer’s dissenting opinion in Glossip v. Gross last Term. That dissent, joined by Justice Ginsburg, concluded that the death penalty was “likely” unconstitutional, and gave all of the reasons why. Justices Scalia and Thomas answered Justice Breyer’s arguments with a powerful case for the death penalty’s constitutional validity (and, in my view, eviscerated Justice Breyer’s case against it). But Justice Breyer’s opinion has fueled the notion that his opinion was the equivalent of whipping votes for a major undoing of the death penalty.
This is not new (as Kent Scheidegger points out in his quotes for the Hill piece). Nor is it the case that a two-justice dissent necessarily means that there are five votes to invalidate the death penalty (as David Dow notes in the NYT piece). For now, I am skeptical that Justices Sotomayor, Kagan, and Kennedy are on board with something as radical as the constitutional abolition of the death penalty in every conceivable case through judicial review. It is exceedingly rare for the modern Supreme Court to completely deprive the state of a form of punishment. It did so in Trop v. Dulles, a badly-written plurality opinion from 1958 in which the Court held that revoking citizenship of a wartime deserter violated the Eighth Amendment. But in that case, the Court – while acknowledging the arguments against the death penalty – also explained why the death penalty was constitutionally valid. The Court reiterated that position in 1976 in Gregg v. Georgia, and has not wavered from it since. In the Court’s history, the view that the death penalty is per se unconstitutional has been held by only a tiny fraction of justices to have served on the Court – a group so small it can fairly be said that their views were far outside of the mainstream of constitutional thought. Unlike Justices Brennan and Marshall, no one on the current Court has taken to issuing regular dissents from denials of certiorari in cases brought by death row inmates who challenged some aspect of their death sentence, dissents that consistently found the death penalty unconstitutional in all circumstances.
One argument being made, and reflected by the ACLU in the press coverage, is that we simply cannot get it right. I do not understand that argument. At the moment, there are no confirmed cases in the modern era of a demonstrably innocent person actually being executed. The number of so-called “botched” executions is exceedingly small. The vast majority of executions today are carried out without incident. And the guilty offenders have generally committed horrific crimes that resulted in the death of others and that were highly aggravated. That does not sound like a system that is consistently getting it wrong in applying the death penalty. Our system is not perfect (no system is), but to urge that no one is ever getting the application of the death penalty right is a gross distortion of reality. The Feds had it right with McVeigh. I could go on and on with similar examples.
But set all of that aside. Yes, there are powerful moral, religious, philosophical, and political arguments against capital punishment. But those arguments are precisely the ones that should appear in legislative debates in Austin, or Sacramento, or Tallahassee, or Oklahoma City. They are not, however – and should not be – the arguments that move the Supreme Court in constitutional litigation about capital punishment. The legal argument requires reference to the prohibitions of the Constitution, not merely to one’s personal sensibilities about the death penalty. Are we prepared to say that every federal execution since 1791, and every state execution since 1868, was unconstitutional? And if originalism is not your thing – if you believe that 1791 and 1868 do not matter because the death penalty should be judged against evolving standards of decency – then you must account for the fact that strong majorities of Americans, and of American jurisdictions, still support some use of capital punishment. Indeed, as I have said before, I believe that the polling actually understates support for the death penalty, when you control for especially aggravated cases (say, a McVeigh or a KSM).
Ultimately, it comes down to this: does the United States Constitution – which, by the way, actually acknowledges the existence of capital punishment and sets forth the procedures to be followed in capital cases – forbid the imposition of capital punishment in any case, no matter how brutal the crime, no matter how strong the evidence of the defendant’s guilt, no matter how strong the aggravating factors and no matter how minimal the mitigating factors, even where there is no colorable claim of innocence, no claim of racial discrimination, and where the execution can be carried out quickly without any significant pain? It is unimaginable, in my view, that the answer to that question is an affirmative one. But that is the question the Court would have to answer in the affirmative in order to hold that the death penalty is per se unconstitutional. Five votes for that? Hard to believe.