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

So is the new judicial scrutiny in capital cases just window dressing?

Not at all. The Court's new interest in scrutinizing capital cases has the effect of reducing the death penalty's political air supply—that is, of constricting its public legitimacy. In theory this should not be the case—just as the permissive attitude the Court for many years took toward executions should not have functioned as a political enabler of them. The Court has never approved of or rejected the death penalty as a political matter. Its decisions merely outline what the ground rules of democratic government require of states that want to use it. Yet people do not read Supreme Court opinions in strictly legal terms. Every time the Court upholds a dicey state conviction, it sends a message legitimizing capital punishment. In contrast, when the Court nibbles away at the death penalty, it undermines its acceptability. It also makes capital cases ever more difficult and expensive for states to litigate, thereby making capital punishment progressively less viable as a regular instrument of criminal justice.

Such moral and practical constraints may not matter in Texas, Oklahoma, and Virginia, where the death penalty is a comparatively routine feature of the criminal-justice system. But states like these are the exception, not the rule: only five states have accounted for two thirds of all executions since 1976. In most places where the death penalty is legal it is quite marginal, and judicial tolerance can matter a lot to its vitality. Recently, for example, courts in New York effectively invalidated that state's death-penalty statute, which had been passed only in 1995 and had never led to an execution. The state legislature decided not to pass another.

What are the big issues to come?

The most important is quality of counsel, about which the blitheness of the Court's jurisprudence has bordered on the obscene. The Fifth Circuit Court of Appeals recently had to debate, for example, whether under the Supreme Court's precedents a death-row inmate whose lawyer had slept through considerable portions of his capital trial was presumptively entitled to a new trial. The Court has issued a few opinions recently—including a potentially significant one last term—emphasizing the importance of effective counsel. But it has only begun to tinker with its prior approach here, and it's far from clear that the justices intend a real revision. Even in the midst of their newfound concern about capital cases, for example, they let a Virginia man be executed despite the fact that, unbeknownst to him, his lawyer at trial had previously represented the person he was accused of killing. No state behavior in capital cases as consistently undermines fair-trial rights as the appointment of ill-prepared, overworked, or just plain lousy lawyers to represent people whose lives are on the line. How seriously the justices take on this question will tell a lot about how committed they are to a new approach.

How much will the change of personnel affect the Court's direction here?

Perhaps a lot. If Roberts proves hard-line, O'Connor's resignation could shift doctrine back toward permissiveness very quickly. On the other hand, a Bush appointee to replace Chief Justice William Rehnquist—a solid part of the Court's conservative flank on these questions—wouldn't have to be very moderate to fortify the current trend considerably.

So what's your instinct about where all this is headed?

Despite O'Connor's retirement, the Court's new approach seems likely to impose significant constraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs. This is a matter less of politics than of simple human nature. The Court speaks in the language of principle, but only a few of the justices are so committed to the principle of deference to state-court judgments that they would feel comfortable over time seeing their names on opinions upholding manifest injustices. Since Roger Keith Coleman's execution, in 1992, Virginia law-enforcement authorities have successfully resisted calls for posthumous DNA testing that could resolve his claims of innocence. Coleman may or may not have been innocent; but someday we're going to learn for sure that someone put to death in this country was in fact not guilty. And it's a fair bet that no one would want her obituary to say she called the debate over that execution "a case about federalism."

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Benjamin Wittes is an editorial writer at The Washington Post.

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