Why a Fair Death Penalty May Never Be Fair

In the book of the year about the death penalty, author Evan Mandery chronicles the ugly political process at the Supreme Court that spawned the nation's roiling capital punishment laws.
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Protestors stage a mock execution in front of the Supreme Court in July 1996, on the 20th anniversary of the Court's decision to reinstate the death penalty. (Dennis Cook/Associated Press)

The biggest news of 2013 about the death penalty in America did not come from a court of law or from one of the nation's death rows. It did not come from the public pronouncements of earnest conservatives who one after the other came out in favor of abolition. It came instead from a Gallup poll released in October that revealed that public support for capital punishment is at its lowest ebb since November 1972—at 60 percent.

That date is significant. Ten months earlier, in January 1972, the United States Supreme Court had invalidated the nation's capital punishment statutes (but not the death penalty itself) in Furman v. Georgia. The resulting public backlash, Evan Mandery writes in his excellent new book about the topic, helped push the Court to reverse course. By 1976, under the thin guise of "reformed" capital laws, and under political pressure after an increase in crime rates, the justices brought back the death penalty in Gregg v. Georgia.

That November 1972 polling figure from Gallup—57 percent approved the death penalty that month-- was but a brief marker on an upward trail that saw support for capital punishment reach 80 percent in 1994. But it has descended ever since. There are many reasons for the drop. Conservatives point to the economic costs of capital punishment. Liberals point to the racial disparities in capital sentencing. And people across the political spectrum cite yawning death row exoneration figures—143 at last count—never mind the innocent who have been wrongfully executed.

Although the individual protections contained in the Bill of Rights never should be dependent upon the whims and caprices of majority rule, public opinion and the death penalty have always been inseparable. Mandery's work, titled A Wild Justice: The Death and Resurrection of Capital Punishment in America, is an important reminder of that link. There is no other way to say it but this: The Supreme Court 40 years ago blinked on capital punishment—blinked because of the public outcry at the very notion of eliminating the death penalty by court order rather than by the political process.

And in blinking, in their zeal to cobble together a majority that would permit executions, the justices who gave us our modern capital jurisprudence failed to adequately articulate a legal theory that supports the death penalty in the context of the Eighth Amendment's protections against "cruel and unusual" punishment. Supporting a practice that embodies the most irreversible act our government can do in our name, this is a baffling vacuum in constitutional law. And yet it persists, 40 years after the Court was supposed to have "fixed" the nation's capital laws.

Apart from reminding us of the Court's political sensitivities, and of the justices' willingness to avoid tough constitutional questions when they can, Mandery's book tells us that those states that pledged to do better after Furman never fulfilled their end of the deal. But we shouldn't merely blame Georgia, Texas or Alabama for wrongful capital convictions. In the name of federalism, the Court never really demanded that states fix the constitutional failures of their capital laws. And so states didn't—and 40 years later still haven't.

To read Mandery's book is to be reminded both of the Court's limitations and of the limitations of the bright men who inhabited it 40 years ago. What Mandery does not address, what will be left to future historians to address, are the reasons why the current justices of that court are so unwilling to confront the obvious deficiencies in the nation's death penalty laws. Mandery explains well why the justices fouled up Furman and Gregg. But what explains or excuses the Roberts Court continuously ignoring the constitutional rights of condemned prisoners and routinely justifying state practices that are both cruel and unusual?

To cap off this year of death penalty coverage, here is my interview with Mandery, conducted last week via email, and edited (a bit) for space.


COHEN: One of the many remarkable things about reading your book is realizing how similar (and still unanswered) are many of the big questions about capital punishment. There is still an enormous racial divide in capital cases. There is still a great deal of arbitrariness in the application of it. And yet the Supreme Court has shown virtually no interest lately in addressing these structural problems that were so fundamental to the Eighth Amendment debate in 1972 and 1976. What do you think accounts for that?

MANDERY: Two mutually reinforcing dynamics are at work, I think: First, the justices interpreted, and interpret, the surge in support for the death penalty following Furman as a repudiation of the Court’s involvement in a complicated ethical question that historically had been the province of local control. This interpretation is correct in my view. So, to the extent the Justices are considered with the public’s esteem for the Supreme Court it may be logical for them to tread lightly in this area.

Second, perhaps in part because the Court has shown no interest in addressing structural problems with the death penalty since McCleskey v. Kemp [a 1987 case in which the Court rejected by a vote of 5-4 a challenge to capital punishment based on evidence of racism], defense lawyers have reasonably shifted their focus to case-specific claims that are more likely to prevail.  Thus there’s less pressure on the Court to consider these claims.

COHEN: The “deal” that satisfied the justices in Gregg was that there would be standards and certain procedural protections for capital defendants. There would be the earnest consideration of mitigating and aggravating factors and bifurcated trials. Those exist today—but they often are manipulated by judges and jurors and prosecutors (and defense attorneys). Did the justices of whom you wrote—specifically Powell, Stewart and Stevens—comprehend that such standards might just be applied in the breach? Did they ever express (back then) skepticism about the good faith of the actors in the criminal justice system? And did they even serious discuss the import of indigent defense work on the constitutionality of capital convictions?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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