Cross-Examination October 2005

The Executioner's Swan Song?

The death penalty is not about to vanish overnight—but the Supreme Court's tolerance for it is diminishing rapidly

Is it just my imagination, or has there been a palpable change recently in the Supreme Court's approach to death-penalty cases?

The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row. They created onerous procedural obstacles to federal review of state convictions. They tolerated the most grotesque incompetence by counsel in capital cases, along with alarming disparities in the way the death penalty was implemented. They allowed executions not only of the mentally retarded but of the seriously mentally ill. In short, the message from the Court to death-penalty states was simple: Godspeed.

But lately the Court has struck a very different tone; one question raised by John Roberts's nomination is whether this trend will last. In two particularly high-profile cases, one in 2002 and the other last spring, it rejected the death penalty first for the mentally retarded and then for juvenile offenders; the justices had upheld it in both situations as recently as 1989. In other cases the justices have also tightened the rules concerning apparent efforts by prosecutors to strike African-Americans from capital juries. They have made clear that juries, not judges, must make death judgments. They have beaten up on Texas—the nation's unrivaled leader in death-penalty activity—for cases involving flawed jury instructions and prosecutorial misbehavior. And they have sought to rein in certain lower courts that have reviewed death cases with particular leniency. It has almost seemed to be a different Court.

Why? It was the same group of justices until now.

In large measure the shift emanates from a change of heart in what were the Court's two swing justices: Anthony Kennedy and the soon-to-retire Sandra Day O'Connor. Once solidly part of the bloc that deferred to state convictions and procedures, both evidently had second thoughts. Back in 1991, for example, O'Connor wrote the Court opinion refusing to even consider the case of Roger Keith Coleman, a Virginia death-row inmate with particularly strong claims of innocence. Coleman had lost his chance to appeal when his lawyers missed a state-court filing deadline by a single day. O'Connor began the opinion, "This is a case about federalism." A decade later, however, she was singing a different tune. "Serious questions are being raised about whether the death penalty is being fairly administered in this country," she said in a 2001 speech in Minnesota. "Minnesota doesn't have it, and you must breathe a big sigh of relief every day."

Kennedy's shift has been just as dramatic. In 1989, for example, Kennedy signed Justice Antonin Scalia's opinion upholding the death penalty for people who committed their offenses as juveniles. This year he wrote the opinion striking down the juvenile death penalty, and in doing so he explicitly repudiated several of the methodological premises of the Scalia opinion he had signed.

The attitudinal shift on the part of Kennedy and O'Connor—two of the less rigidly principled justices in recent years—is hardly a surprise. As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person's guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countrywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these trends. It would actually be surprising if no Supreme Court justice had rethought his or her approach in light of what we now know about capital punishment.

So is the Court getting ready to strike down the death penalty once and for all?

Almost certainly not. And for the Court's reticence on this point, foes of the death penalty (of which I am one) should, paradoxically, count themselves lucky. The justices went down the abolition road once before. In their ill-fated 1972 decision in Furman v. Georgia—which came down at a time when capital punishment was on the decline anyway—they effectively struck down the death-penalty statutes of every state in the country that had them. The intense public reaction against the decision provoked many states to rewrite their capital-punishment laws to comply with the Court's new standards—much as the current backlash against judicially mandated recognition for gay marriage is prompting state constitutional amendments that limit marriage to heterosexual couples. Within just a few years the Court allowed these new laws to go into effect: executions began again—and then skyrocketed, from one in 1977 to twenty-five in 1987 to seventy-four in 1997. By denying the public the option of a penalty that, although disfavored by elites, was supported—then as now—by much of the polity at large, the courts intensified public commitment to it. With capital punishment once again on the wane, justices uncomfortable with it would be deeply foolish to repeat that mistake. Even the Court's liberal flank seems to understand this.

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Benjamin Wittes is an editorial writer at The Washington Post.

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