Why a Fair Death Penalty May Never Be Fair

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?

MANDERY: One of the things that most surprised me about the history of these cases is how little attention Powell, Stewart, and Stevens paid to the specifics of the new statutes in 1976. Fervent abolitionists may crucify me for this (the irony!), but I see a huge difference between a statute that reserves the death penalty for a handful of the most egregious crimes—say killing a police officer in the line of duty—and a statute that makes innumerable murders death eligible, leaving it to prosecutors and juries to separate out the worst of the worst.

None of the statutes in existence today and none of them in 1976 come close to a “rational” death-sentencing scheme. But some statures are more irrational than others, and at least one of the 1976 statutes was ludicrous. Texas’s law made almost every murder death eligible. Justice Stevens has said that he regrets his vote in the decision upholding that law, Jurek v. Texas.

With respect to the other issues you raised, the justices did consider them, but drew the opposite of the natural inference. Powell, a former president of the American Bar Association, believed that effective lawyering could remedy many of the arbitrariness problems of capital punishment. 

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?

MANDERY: I met no one who went the other way, and I talked to a lot of people.  I don’t think that’s a reflection on the morality of capital punishment, though. At least for me, the death penalty is a complicated moral question in a way that, for example, gay marriage is not. I can’t imagine a legitimate argument restricting people from marrying based on their sexual orientation. I can, however, imagine a reasonable debate about whether the death penalty is ever justified.

The unidirectionality in the change of views stems from the fact that most of the people I spoke with are lawyers (as I am). Lawyers believe their enterprise is creating rational, predictable systems. If the past 40 years have proved nothing else, it is that creating a rational, predictable system for separating those who deserve to live from those who deserve to die may be beyond human capacity.