Mondays with the Supremes: The Death Penalty
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
Edward Lazarus’s experience as a clerk for Supreme Court Justice Harry Blackmun from 1988 to 1989 forms the background for Closed Chambers: The Rise, Fall, and Future of the Supreme Court. The book’s unique angle – “juxtaposing history, memoir, and analysis” – provides a long-view investigation on how the Supreme Court operates and gives the reader an “inside baseball” account from the clerk’s point of view. Lazarus grew up in Washington, D.C., “the son of an attorney,” and “visited the Supreme Court on school field trips and heard many stories about it.” While most Americans see D.C. through the skewed view of the mainstream media, Lazarus experienced the Federal City as a townie. He attended an Ivy League law school and eventually became employed as a clerk for Justice Harry Blackmun. Justice Blackmun is most famous (or notorious) for being one of the authors of Roe v. Wade. Lazarus paints a picture of an anguished Justice, a rare individual recognizably burdened with the purpose of his office. Blackmun is also devoid of the ideological puritanism endemic to the conservative members of the Court.
Closed Chambers analyzes three distinct issues the Supreme Court tackles: racism, the death penalty, and abortion. This essay will focus primarily on the death penalty, although one would be remiss not to include pivotal issues like race in death penalty cases. During Lazarus’s tenure as clerk, he witnessed firsthand the labyrinthine, stressful, and depressing business of dealing with death penalty cases. Amidst the major cases decided during his clerkship, he witnessed the polarization among the clerks. Libs on one side, “the cabal” (as the conservative clerks labeled themselves) on the other.
While death penalty cases can become emotionally charged affairs, the situation is different to those arguing before the Supreme Court:
On the other hand, much of the advocacy before the Court is mediocre, some downright contemptible. I remember one death penalty case where the Court was very closely divided, the outcome clearly in doubt, with the lives of dozens of condemned prisoners hanging in the balance. The lawyer for the defendant simply did not understand that the Court does not respond to pleas for mercy or other emotional arguments that might move a lay jury. It responds to arguments about the meaning of the law – in this case the Constitution – and she gave none.
But what the law is remains an important topic. The Death Penalty in the United States: A Complete Guide to Federal and State Laws, Second Edition, by Louis J. Palmer, Jr. updates material from the original 1998 edition. Palmer works as an attorney for the West Virginia Supreme Court of Appeals. Unlike Closed Chambers, The Death Penalty is a legal resource on a single topic. It is thorough, clearly written, and rather dry. But Palmer did not write a narrative account. The arguments and counter-arguments for and against the death penalty are given with an intentional neutrality.
Palmer covers such topics as initiating capital proceedings, court and post-conviction proceedings, laws relating to execution, and other capital punishment issues (military death penalty laws, Native Americans and capital punishment, opposition to capital punishment, and costs of capital punishment.) An appendix covers state and federal death penalty laws where applicable. The Death Penalty also includes a useful glossary and extensive end notes.
The name Dzhokhar Tsarnaev enters the news again, this time as the epicenter around another discussion about the death penalty. Does the convicted Boston Bomber deserve the death penalty? Why or why not? The death penalty, unlike other punitive measures, involves no rehabilitation. This makes it unique in the field of jurisprudence and penology. It is also why the punishment remains controversial. The similarity between death penalty and abortion controversies should not be understated. Both are serious actions and both involve the termination of life. Because the death penalty has a special status as a punitive measure, it has become a politicized debate.
In previous installments of this series, I have been outspoken about my views, in this discussion on the death penalty, my aim it towards neutrality. For those who want voice their opinion on the death penalty, I encourage you to use the comment section below. A clearer picture of the situation will emerge once the history and process of death penalty law is summarized.
Common Law and the Evolving Concept of Decency
Palmer explains in Death Penalty how the death penalty has its roots in common law. For thousands of years societies have used the death penalty as a punitive measure. Law, like society itself, has changed over time. These changes include the nebulous term “the evolving concept of decency.” This is why modern Americans see beheading and burning at the stake as barbaric means of capital punishment. The evolving concept of decency can also be applied to other behaviors like consuming pornography and topfreedom. What Victorians saw as the most vile and perverted filth many Americans (and the democratizing force of the Internet) see as quaint and tame.
American constitutional law has its roots in English common law. The only exception is the role of the public prosecutor. That role had its roots in Dutch common law. English common law included numerous crimes that were capital offenses. These capital offenses included “murder, arson, larceny, robbery, burglary, rape, treason and petty treason.” William Blackstone made sarcastic comments about “imposing the death penalty on all felony offenses.” Three of the more absurd felony offenses included “(1) to tear down the mound of a fish pond and allow the fish to escape; (2) to chop down a cherry tree that was in an orchard; or (3) to be publicly seen with a gypsy for one month.” Common law practices also involved grisly and sensational acts of public execution. Over the centuries, public executions have given way to private executions. In addition, the number of executions has consistently diminished (from over 1600 in the 1930s to less than 200 in the Sixties).
The evolving concept of decency, while appealing to Enlightenment sensibilities, seems too pat and on-the-nose in terms of understanding how society works. It also implies that society “evolves” and that this “evolution” is a positive, progressive linear march towards collective education. “People in the past were barbarians, but we are more educated.” This seems true in the abstract, but it does not hold up to more detailed scrutiny. Hence the necessity of law to hold back the mass urges of the populace. Following the September 11th attacks and the Economic Meltdown of 2009, vast swaths of Americans were angry and violent. Americans were so angry at Muslims following 9/11 that they went out at attacked Sikhs. In the protracted Great Recession, many Americans wanted justice, not bail-outs and “fines” for the stunning acts of financial ineptitude that destroyed the global economy and sent millions into foreclosure and unemployment. The common theme for the bloodthirsty outrage is that the punishments did not fit the crimes. Added to this volatile mix were class and race resentments, due to the nature of corporate malfeasance versus that of armed robbery and the like. Hold a liquor store owner up at gunpoint and get incarcerated. Steal millions in 401K earnings of hard-working Americans, get a little fine and a slap on the wrist. It’s no wonder some Americans desire a therapeutic extrajudicial remedy, since the courts, legislatures, and corporations have done such a terrible job at self-policing. To circle back to the main point, these crises in American democracy have fostered a kind of devolving concept of decency. When the death of Osama bin Laden ushered a nationwide celebration on par with a Superbowl victory, instead of desiring to place him on the stand and subject him to a trial, then how far has American society “evolved”?
The evolving concept of decency also implies a standard of uniformity. Due to the Constitution and the administrative make-up of the American nation, death penalty legislation is far from uniform. The death penalty is also enforced on a state by state level and not every state has capital punishment. What constitutes a capital offense in one state is punished by life without parole in another state. Capital punishment is determined by another nebulous concept: local standards. While communities are accountable for setting up their own statutes, how is this any different than a rationalization of tribalism? Adding to this is the capital offenses for the Federal Government. While one could get life in prison for committing a crime on a state level, one could face the death penalty on a federal level. Does this count as double jeopardy? Palmer states that “[u]nder the concurrent jurisdiction or dual sovereignty doctrine, when a defendant in a single act violates the law of two sovereign jurisdictions, he or she has committed two distinct offenses and may be prosecuted by both jurisdictions.”
Before proceeding with this line of reasoning, it is important to understand the judicial genealogy of the death penalty. This involves discussing two landmark death penalty cases.
Furman and Gregg
Furman v. Georgia, 408 U.S. 238 (1972)
The arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment.
Warren E. Burger
William O. Douglas · William J. Brennan, Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell, Jr. · William Rehnquist
Dissent Burger, joined by Blackmun, Powell, Rehnquist
Dissent Powell, joined by Burger, Blackmun, Rehnquist
Dissent Rehnquist, joined by Burger, Blackmun, Powell
U.S. Const. amends. VIII, XIV
The most significant aspect of the Furman decision was a temporary moratorium on the death penalty. In the concurring opinion of Justice William O. Douglas, he wrote:
Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime.
He goes on to say,
In a Nation committed to equal protection of the laws there is no permissible “cast” aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despises, and lacking political clout, or if he is a member of a suspect of unpopular minority, and saving those who by social position may be in a more protected position.
Justice Douglas likens capital punishment to affirmative action favoring the poor and despised. Throughout American history the intersections between poverty and minority racial groups has made capital punishment seem selective, capricious, and cruel.
In his dissenting opinion, Justice William Rehnquist argued against the potential for judicial overreach. For Rehnquist, Furman signified the Court “legislating from the bench.” He says, “While overreaching by the Legislative and Executive Branches may result in the sacrifice of individual protections that the Constitution was designed to secure against action of the State, judicial over-reaching may result in the sacrifice of the equally important right of the people to govern themselves.”
Unlike ideological debates by the two major political parties, one can read both sides as making valid points. If there is a problem with the application of capital punishment, it should be rectified with state and/or federal legislation. While reasonable in theory, this is hard to comprehend, especially in a post Citizens United political world where every politician can be bought like a cheap slab of meat. The constant money chase has poisoned the political process and turned would-be public servants into nothing more than a gaggle of groveling courtiers, kowtowing to corporate heads to get big money “donations” (legal bribes). Put enough money under the nose of a politician and they’ll sing, dance, and pimp their immediate family members to anyone with the financial means to do so. That is why an independent judiciary is so important.
On the other hand, Rehnquist makes a valid argument. In Furman, the Court was legislating from the bench. Much like in Brown v. Board of Education, where the Court invalidated the doctrine of separate but equal segregation schemes, but added that the states must desegregate “with all deliberate speed.” This created a populist backlash among racists, making them stonewall or simply refuse. Legislating from the bench created a moratorium on capital punishment, which would be good if one is against capital punishment. But judicial overreach is bad when the Court is in ideological opposition to public opinion, or so Rehnquist is arguing.
The problem, especially in the current hyper-polarized atmosphere, is that any decision can be considered judicial overreach. Lazarus argues that the Eighties saw the rise of politicized decisions, where ideology took a front seat to independent decisions making by the Court.
Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976)
The imposition of the death penalty does not, automatically, violate the Eighth and Fourteenth Amendment. If the jury is furnished with standards to direct and limit the sentencing discretion, and the jury’s decision is subjected to meaningful appellate review, the death sentence may be constitutional. If, however, the death penalty is mandatory, such that there is no provision for mercy based on the characteristics of the offender, then it is unconstitutional.
Warren E. Burger
William J. Brennan, Jr. · Potter Stewart
Byron White · Thurgood Marshall
Harry Blackmun · Lewis F. Powell, Jr.
William Rehnquist · John P. Stevens
Majority Stewart, joined by Powell, Stevens
Concurrence White, joined by Burger, Rehnquist
U.S. Const. amend. VIII
The significance of Gregg is the bifurcated sentencing system for capital punishment cases. That means that in cases where the prosecution is seeking the death penalty, the process is split. The first half is the guilt phase, determining whether or not the defendant actually committed the crime. The second half focuses on what punishment is necessary for the crime.
Mitigating versus Aggravating
Every court case is a balancing act. In capital punishment cases, it is balancing act between crime and punishment. Does the punishment fit the crime? The prosecutor aims to justify the death sentence by presenting a set of aggravating circumstances. The capital felon aims to justify imprisonment by presenting a set of mitigating circumstances. The struggle to create a just system involves deciding what constitutes an aggravating circumstance or a mitigating circumstance. Examples include if a crime was particularly brutal and depraved (aggravating) versus the capital felon’s age, mental competence, family history, and personal history of substance abuse (mitigating).
The Boston Bombing’s particularly vicious and public nature can be seen as aggravating factors for one to argue for the death penalty. Dzhokhar Tsarnaev’s young age and susceptibility to political radicalization are mitigating circumstances for one to argue for life imprisonment. As a Chechen, he comes from a culture that has been routinely brutalized by the Russian regime. Whether or not this bit of foreign policy minutiae counts as a mitigating circumstance will be up to the defense counsel and the jury. Since Tsarnaev is so young, lifetime imprisonment without parole could also be a valid punishment for the Boston Bombing.
The challenge of aggravating versus mitigating circumstances lay with the jury. Those specific individuals will have to take into account the nature of the crime against the life of the accused. Because capital punishment offers no possibility of rehabilitation, it becomes a harrowing decision of thumbs up or thumbs down. In the end, the capital felon will face termination instead of incarceration. But are there circumstances where capital punishment is not only justified but necessary?
In the 2008 case, Kennedy v. Louisiana, the Court ruled that the crime of child rape (and nothing else) does not justify the death penalty. The emotional nature of the crime of child rape is complicated by the perspective of seeing pedophilia as a medical illness that can be treated. While there is common law precedent against executing the mentally ill, this collides with the heinous and vicious nature of the crime. Once again we return to the question of the punishment fitting the crime. In a nation where one can be sentenced to longer prison time for non-violent drug possession than murder or child molestation, what message is this sending to our citizens? This perverse prioritization, yet another sacrifice made to the golden idol we call The War on Drugs, only engenders the populace to become scofflaws and cynical about the judicial process. But this leads up to questions about the application of capital punishment in terms of race and class.
Race, Class, and the Death Penalty
Because of American history, it is hard to divorce capital punishment cases from the snarl of race and class. For centuries, white Americans have made it their duty to enslave, oppress, lynch, discriminate, segregate, and intimidate African-Americans that this has led economic disparities along racial lines. It has taken centuries, legislation, Constitutional amendments, and the presence of the National Guard to rectify this American inventory of injustice and race hatred. It is hard to raise oneself by the metaphorical bootstraps when the racial majority keeps its thumb firmly on the metaphorical scale. American history is a cavalcade of atrocity and achievement while American politics is the fine art of amnesia and empty buzzwords to an electorate proud of its collective idiocy. The Left and the Right are both at fault. The liberal and conservative foot-soldiers have become adept at fear-mongering and substance-free sloganeering. The current political process is nothing more than two obese hypocrites sumo wrestling in a tar pit. Yes, change is possible and progress is nice, but it usually always involves pulling the nation by the hair as it kicks and screams.
One of the controversial aspects of capital punishment involve using statistics.
McCleskey v. Kemp, 481 U.S. 279 (1987)
Despite the presentation of a statistical model that asserted racial disparity in application of the death penalty, aggregate evidence is insufficient to invalidate an individual defendant’s death sentence.
William J. Brennan, Jr. · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell, Jr. · John P. Stevens
Sandra Day O’Connor · Antonin Scalia
Majority Powell, joined by Rehnquist, White, O’Connor, Scalia
Dissent Brennan, joined by Marshall; Blackmun, Stevens (in part)
Dissent Blackmun, joined by Marshall, Stevens; Brennan (in pertinent part)
Dissent Stevens, joined by Blackmun
Equal protection clause, Title VII
The heart of the matter is that statistical evidence alone cannot invalidate the defendant’s death sentence. As a historian, I have to agree. Statistics do not tell the whole story and statistical methodology can become a Pandora’s Box, even with best intentions and most prestigious credentials. While race- and class-based bias exists in the application of the death penalty, statistics present a vital aspect to rectify the structural problem.
Justice Oliver Wendell Holmes, Jr. wrote in Common Law (1881) that “[t]he life of the law has not been logic; it has been experience. … The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” Statistics elucidating race-based injustices are only part of the solution. Because statistical analysis can be deceptive or self-serving, other evidence needs to be brought to bear. Over the centuries defendants from wealthy families have received prison terms while poor defendants have received the death penalty. Numbers can tell one things, but numbers don’t tell one everything. And one can manipulate numbers to reflect personal and political biases. Pick any issue and the ideologues will throw down graphs and charts allegedly confirming their position. One also needs to have the critical faculties to read statistics and read against statistics.
While the columns of numbers appear objective and scientific, the selection and measurement of variables is a subjective matter. Like the practice of history, the practice of statistical analysis is all interpretation. In something as volatile and controversial as race and crime, statistical analysis can either prove or disprove common knowledge. Not all African-American males are criminals, but it is common knowledge that African-American men have perpetrated crimes in economically depressed neighborhoods. Yet there are exceptions to this common stereotype. There are also poor whites on welfare rolls and poor whites committing crimes. History has shown that the trend of criminality and minority status are similar, it is also important to note the similarity between criminality and poverty. Unfortunately American amnesia and our continuing belief that America is a classless society continue to bedevil the electorate whenever it is forced to make an important decision. Voting against one’s own interests is always a lot easier.
When the problem is structural, then legislative remedies become necessary. Economic, educational, and labor legislation can help communities crushed beneath the wheel of poverty. Hence the vituperative rhetoric on both sides of the minimum wage debate and the near universal (and justified) hatred for the current “do nothing, know nothing” Congress. At present, the United States Congress is the greatest collection of moral degenerates, intellectual midgets, and bottom feeding corporate sock puppets. And we elected (and keep re-electing) them. The challenge is blocking out the gutter logic that politicians use to divide the electorate, whether race against race or rich against poor. Because crime is so sensational, it is an easy tool that can be exploited by unscrupulous career politicians. Instead of coming up with a legislative solution, the politician will figure out some way to demonize these common types: the scary black man, the job-stealing immigrant, or the evil political radical. In rare cases they might demonize the wealthy, but a politician won’t crap where they eat. No sense alienating the money spigot and making the electorate uncomfortable with class issues.
Both Closed Chambers and Capital Punishment offer informative and impassioned discussions on the issue of the death penalty. The challenge remains to fix structural problems with legislative solutions and avoid judicial overreach. The death penalty is the most serious punishment the United States metes out. Both these makes will make the reader more informed and hopefully more involved in the machinery of the modern judiciary.