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
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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.

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."

Benjamin Wittes is an editorial writer at The Washington Post.
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