A Road Map For Death Penalty Abolition

FILE - This Oct. 9, 2014, file photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAl
FILE - This Oct. 9, 2014, file photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. State question 776, a proposal to ask Oklahoma voters to enshrine the death penalty in the state's nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum. (AP Photo/Sue Ogrocki, File)

The turbulent post-war years of the 1950s made it imperative that the United States to confront the way it treated black citizens. When the Supreme Court ended support for public school segregation in 1954 it was after many decisions had undermined "separate but equal" but the Justices, aware they were entering disruptive territory, were influenced by Swedish economist Gunnar Myrdal's exhaustive yet best selling study, "An America Dilemma." Despite overwhelming data demonstrating a society permeated by racial injustice, Myrdal's was optimistic: the "American Creed," a belief in equality and fair treatment, would ultimately triumph over seemingly entrenched racism.

Now that the Court potentially faces a less daunting but still divisive challenge regarding the death penalty, another book may shape the way the Justices view the constitutional issue. Capital punishment is a dwindling sanction but it's still authorized by law, entrenched in the South and supported by millions of Americans. Carol and Jordan Steiker, professors at Harvard and the University of Texas Law Schools respectively, are the leading contemporary scholars of the death penalty. In Courting Death: The Supreme Court and Capital Punishment they have brilliantly defined--in language accessible to the general reader-- the massive dysfunction of the current system and the course that a future Supreme Court could take to do away with it.

In the 1960s responding to rampant racial decision-making in state courts and expressions from several Justices, the NAACP Legal Defense Fund (LDF) challenged the procedures employed in capital cases. By 1967, the campaign achieved a de facto moratorium on executions while the litigation proceeded but the Court ultimately rejected the key LDF positions. Then in 1972, a five-four majority in the Furman case, reversed course, quashing all outstanding death verdicts, largely because of the random way the condemned were selected. Every Justice wrote an opinion but the core defect of arbitrariness was aptly captured by Justice Potter Stewart's claim that receiving a death sentence was like being struck by lightening.

Many believed capital punishment would wither away, an assumption so misguided it evokes Yogi Berra's famous apothegm, "It's tough to make predictions, especially about the future." In 1976, after expressions of outrage from a public previously largely indifferent and new legislation from 35 states, the Court turned to a system of discretionary sentencing, requiring jurors to consider aggravating and mitigating circumstances before ordering execution. The expectation, evidence of more wishful thinking, was that the death penalty would be reserved for the "worst of the worst."

Over 1,400 executions later with almost 3,000 mostly men lingering for years on the nation's death rows, capital punishment looks increasingly dysfunctional due to the continued judicial failure to satisfactorily regulate the way death sentences are reached. The current debate over capital punishment is no longer focused on contested moral visions about taking a life but rather on the effectiveness, accuracy and cost of the agonizingly detailed, superficially rational, regulatory universe the Court has brought into being. The key conflict exposed in often contradictory judicial opinions is an effort to accomplish two inconsistent goals-- to individualize selection of the condemned so punishment fits the offender and offense while at the same time attempting to assure that the states avoid arbitrary or racially based sentencing. But once a single jury is instructed to see a defendant as unique there is no way the life-death choices of different juries over time can be anything but random.

As a result of the Court's failed regulatory efforts to resolve this dilemma, capital punishment is more vulnerable than at any time since it was reinstituted. Seven Justices and former Justices have indicated that the death penalty is no longer constitutional. Three of the seven had previously voted to uphold it, reflecting a learning curve derived from encountering hundreds of death cases, an experience that radically changed previous dispositions.

Activists debate whether reduction in public support reflects the more than 150 exonerations, often but not exclusively based on DNA evidence, or the availability of life without parole sentences as an alternative sentence. Few disagree, however, that the movement away from capital punishment is pronounced. Both Steikers clerked for Thurgood Marshall who in the 1972 case took the novel position that the legitimacy of the death penalty should be measured by the views of those who had knowledge of its actual operation rather than by merely pollster nose counting. This approach assumes that combining a more searching view of public opinion--abstraction is the enemy of understanding how the capital system works-- with the informed views of the Justices themselves results in the proper legal test to measure whether capital sentencing amount to cruel and unusual punishment.

After taking the reader through the Court's failed project to rationally regulate the death penalty, the Steikers set out "A Blueprint for Constitutional Abolition," a path they believe builds, on precedent, takes seriously language used by Justice Anthony Kennedy, the key swing vote in many previous decisions narrowing the death penalty, and protects the Court from the another backlash of the sort that occurred after the Furman decision.

Unless one believes that the definition of what makes a cruel and unusual punishment is trapped in its 18th Century meaning, the need for proportionality between harshness of a sentence and the extent to which it advances a legitimate purpose of the criminal law is essential. In modern terms, most Justices have adhered to the 1958 statement of Chief Justice Warren that the proper test measures "evolving standards of decency." In short, cruelty reflects what sanctions society regards as intolerable, a standard that inevitably requires analysis of the present context and frequency of a punishment.

The Court has a mixed record deciding what is a proportional sentence. In non-death penalty cases, it has approved state laws mandating long sentences for minor crimes, but recently the Justices have struck down capital sentences for criminal conduct that does not involve directly taking a life and for the intellectually disabled and juvenile offenders. More important than the results in these cases is their enlarged the criteria for judging proportionality-- relying on the direction of change as in the increased number of states abolishing, the reduced number of actual executions, the number death sentences imposed and the actions of "expert legal organizations" (The American Law Institute, sponsor of the approach the Court adopted in 1976, withdrew it in 2009.) A majority of Americans now live in states that have no active record of execution. For more that 80 % of death row inmates a death sentence has turned out really to be a life sentence under demeaning, isolated conditions that in some settings border on inhumane treatment.

But no one expects an immediate end to capital punishment. Not only is abolition still avoided by politicians fearful of soft on crime rhetoric but a Court whose prestige was damaged by repudiation of its 1972 effort will be hesitant to move precipitously. When Justice Stephen Breyer recently urged the constitutional question be reargued only Justice Ginsberg joined him. The present divided Court is a reminder that the greatest force for resolution of the status of capital punishment is the 2016 presidential election. In addition to the one vacancy on the court, there are four Justices of a vulnerable age. The Court is unlikely to act before more executions take place and if Donald Trump wins the election it may be composed of more Justices like those members of the present Court who seem to have no problem with the status quo.