If you spend any time at all studying the death penalty in America today you eventually come across an immutable truth: No one who digs deeply into these grim cases ever seems to evolve from being a staunch opponent of capital punishment into being a fervent supporter of the practice. The movement, over the past 40 years anyway, has almost always been in the opposite direction: The closer one gets to capital punishment, the more dubious it appears to be.
This has been particularly true of Supreme Court justices since the death penalty was resurrected in America in 1976: The closer these esteemed jurists have gotten to "the machinery of death," the more flawed convictions and death sentences they were forced to review, the more racial inequality they saw in its application—and the more likely they were to recoil from the arbitrary imposition of capital punishment in those states that still practiced it.
This is just one of the many important takeaways from the book of the year about the death penalty, Evan Mandery's work titled "A Wild Justice: The Death And Resurrection of Capital Punishment in America." I will have more on the book—as well as an online interview with Mandery—in a related post tomorrow here at The Atlantic. But for now let us focus on four Republican-appointees to the Supreme Court and the impact their decades-long focus upon capital cases had upon their judicial philosophies toward executing condemned murderers.
Take Justice Lewis Powell. In 1976, the Nixon appointee voted in Gregg v. Georgia to reinstate the death penalty after a four-year hiatus. (He also had dissented, strongly, from the Court's fractious 1972 decision in Furman v. Georgia that temporarily brought capital punishment to a halt.) In McCleskey v. Kemp, in 1987, he wrote the majority opinion denying racial bias in the system, even though evidence showed that defendants who had murdered white victims received more death sentences than those whose victims were black.
But Justice Powell later came to publicly regret those views. Late in life, he told his biographer, John Jeffries: "I have come to think that capital punishment should be abolished." His thinking evolved, Linda Greenhouse wrote in her New York Times' obituary of Powell in 1998, "based on pragmatic concerns rather than on questions about the morality or constitutionality of the death penalty itself." Doubts about the death penalty could never be resolved and would inevitably bring the judicial system itself into disrepute, the justice concluded.
Or take Justice Harry Blackmun. In 1976, the Nixon appointee also voted to reinstate the death penalty even though he was personally opposed to it. Nearly two decades later, however, shortly before he resigned from the Court, he wrote in a Texas capital case that he would "no longer tinker with the machinery of death." That's the phrase that always gets cited. But what Justice Blackmun wrote next in Callins v. Collins in 1994 goes to the heart of the matter. His experience on the bench had soured him on the experiment of capital punishment:
Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.
The basic question—does the system accurately and consistently determine which defendants "deserve" to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. (Citations omitted by me)
Almost exactly 20 years after Justice Blackmun wrote those words, every single failing he identified about capital punishment still exists. The Supreme Court—far more conservative today than it was in 1994—continues to labor under the convenient delusion that there are sufficient "procedural rules or substantive regulations" to ensure that capital punishment is applied fairly and accurately. The sad truth, however, is that "factual, legal, and moral error" are still rampant in those states that cling to capital punishment.
But don't just take my word for it. Take the word of retired Justice John Paul Stevens. In 1976, the Ford appointee also voted in Gregg to reinstate the death penalty. In 2008, however, in a Kentucky case styled Baze v. Rees, he announced that he had changed his mind. Evaluating capital punishment for nearly a third of a century on the highest court in the land, Justice Stevens wrote, had allowed him to reach certain conclusions about the misapplication of the death penalty. He emphasized four specific concerns:
Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.
Our former emphasis on the importance of ensuring that decisions in death cases be adequately supported by reason rather than emotion has been undercut by more recent decisions placing a thumb on the prosecutor’s side of the scales.
A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases.
Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. (Citations omitted by me)
The systemic problems with capital punishment that Lewis Powell mentioned in 1991, and that Justice Blackmun identified in 1994, had not been cured by the time Justice Stevens identified them in 2008 (and again in 2010, in The New York Review of Books, in a review in which he lamented the Court's broadened application of capital punishment). Nor has the Supreme Court addressed, let alone resolved, these problems in the years since Justice Stevens retired. Just last month, the justices refused even to hear an Alabama case in which an elected judge overrode a jury's sentencing verdict and imposed a death sentence.
Three Republican-nominated justices, three men of moderation, among the least ideological the Court has produced in the past 50 years, all came late in life to regret their early doctrinal support for capital punishment. Retired Justice Sandra Day O'Connor, the first woman on the Court, a nominee of President Ronald Reagan, also questioned the use of capital punishment near the end of her tenure on it. She had concerns about the execution of the innocence, she said, and she acknowledged the equal protection implications of the fact that rich capital defendants get better legal representation than poor ones.
Now let's list the Supreme Court justices of our time, or of our parents' time, who started out as advocates for the abolition of capital punishment but whose experience with capital cases on the High Court over decades caused them to support the death penalty. Alas, we can't do it. Not a single justice has ever been so converted. Is that not telling? Exposure to capital cases doesn't cause these smart and honorable men and women to gain confidence in the neutral and accurate application of the death penalty, because no such confidence is warranted—because no such application exists.
No one ever studies these cases and says: "Look, this state here has come up with a procedure that ensures the accuracy of result in capital cases by providing defendants with competent counsel and by ensuring there are no racial disparities in the way prosecutors charge capital cases, or in the way juries are selected to hear them." Or, "Look, this state here has come up with a way to ensure that prosecutors permit the testing of all relevant DNA testing and are blocked from relying solely upon dubious eyewitnesses testimony."
Capital punishment today in those states that still practice it—eight fewer than did in 1972—is, instead, still as patently arbitrary and capricious as it was back then. If you are black, or if you are poor, or if your victim is white, or if you live in certain counties you are far more likely to receive the death penalty than if you are white, or rich, or your victim is a person of color, or if you live in certain other counties. Only two percent of counties in this nation generate more than half the capital sentences in America, according to a report issued this year by the Death Penalty Information Center.
Much about the death penalty today, even by the murky standards of Furman or Gregg, is indefensible, which helps explain why three of the justices responsible for its resurrection in 1976 stopped defending it. And yet the Supreme Court persists today in endorsing America's capital regimes without even candidly acknowledging the flaws in them. Meanwhile, the ultimate question—whether the death penalty violates the Eighth Amendment as "cruel and unusual"—never even comes up anymore because advocates understand that there are at least five votes on the current Court, perhaps more, to sustain capital punishment.
As I'll address tomorrow, Mandery's new book is trenchant in part because it highlights the Court's longtime cognitive dissonance on capital punishment. The justices who changed their minds (or at least their votes) between Furman in 1972 and Gregg in 1976 did so without demanding or receiving any assurances from the states that the new death penalty laws would generate more accurate and less racially biased results. And that's why those old capital cases represent such terribly shaky ground upon which the Supreme Court has chosen to construct the current generation of death penalty laws.