Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, January 16, 2021

It’s Time to Address the Death Penalty's Constitutionality

It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.

Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong.  Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.

The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.

The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed.[1] Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen.[2] Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants.[3] And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.[4]

However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed.[5] Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.

Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months.[6] In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.

After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.

Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”[7]

 

[1] 408 U.S. 238 (1972).

[2] 543 U.S. 551 (2005).

[3] 536 U.S. 304 (2002).

[4] 572 U.S. 701 (2014).

[5] 576 U.S.             , 135 S. Ct. 2726 (Breyer, J., dissenting).

[6] See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog

[7] In re Gault, 387 U.S. 1 (1967) (internal citation omitted).

https://lawprofessors.typepad.com/appellate_advocacy/2021/01/its-time-to-address-the-death-penaltys-constitutionality.html

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