“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”
Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment.
“Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost. “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”
Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child. And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional. The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”
Kennedy’s absence could soon be felt. Over the years, the Supreme Court has delayed hearing numerous death penalty cases, some a dozen times. Those cases will likely come up for review again following Kennedy’s retirement.
“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered.
The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.
“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said. “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”
Support for capital punishment among Americans has plummeted in recent years. Still, more than half of Americans continue to support the death penalty. Though the Supreme Court has final say around its constitutionality, it remains primarily a matter of state and local law enforcement. Plagued by controversy and a shortage of drugs used for lethal injections, states’ use of capital punishment has dramatically declined in the last 20 years and is now at near-record lows. Nineteen states and the District of Columbia have abolished the practice.
With the prospect of a Supreme Court dominated by justices less interested in challenging the legality surrounding the punishment, Menschel says activists must change their strategies.
“For those who seek to rein in the death penalty, the battle must now shift to the states and to localities where the penalty is generally administered in the first instance,” Menschel said.