COHEN: Your book understandably didn’t spend much time evaluating the current Supreme Court and its Eighth Amendment jurisprudence. Justice Anthony Kennedy, the lone conservative willing to narrow the scope of the death penalty, has helped outlaw it for juveniles and for the intellectually disabled. Is this where this fight is headed—limitations, but not direct challenges to capital punishment? Or do you think the increased use of DNA testing, which has increased the number of capital exonerations, might generate traction toward abolition?
MANDERY: We need to separate traction toward abolition in the public and the Supreme Court. In the public, DNA evidence of wrongful convictions has been extremely significant in undermining public support for capital punishment. And, despite what Justices may say to the contrary, public opinion has some indirect impact on the Justices’ views and the outcomes of cases. But, DNA evidence is unlikely to serve as the basis for the Court to overturn capital punishment.
Whatever its merits, for a variety of reasons the Court isn’t likely to reconsider it. If the Court is going to end the death penalty, it will either be because of the trend against the death penalty or because of the impossibility of implementing it non-arbitrarily.
COHEN: Today, almost double the number of states have abolished capital punishment (18) than before Furman (10) was decided. Six of those 18 states have abolished capital punishment since 2007 alone. Are we finally seeing the political momentum that opponents of capital punishment were hoping for 40 years ago? And do you find it ironic that much of the momentum seems to have come from the economic argument against the death penalty—that it is too costly to undertake in a constitutional manner?
MANDERY: I try to call the individual arguments for and against the death penalty as I see them. For example, most abolitionists would say that there is no evidence that the death penalty deters. I think this is unfair. There is some evidence that the death penalty deters. It doesn’t deter very much, and only deters when it’s used more than our collectively conscience should tolerate, and I don’t think deterrence is the basis to resolve the debate one way or the other, but that’s different than saying no evidence exists.
The cost argument, however, is clear cut: The death penalty is incredibly inefficient. A shocking statistic: Only about one in 10 people who are sentenced to die are ever executed. This means that states are paying the up-front costs associated with capital punishment—longer, more expensive trials, more expensive confinement, more appeals—and only occasionally receiving the cost savings of not having to imprison a criminal for his natural life.
COHEN: Blackmun. Stevens. Powell. The road to capital punishment is paved with jurists and lawyers who endorsed it and later came to change their mind. In your research, have you ever come across someone who has gone the other way? Who had been opposed to capital punishment but had come, upon reflection and a close look at America’s capital regime, to embrace the punishment? And, if not, why do think that is?