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Commentary: Death penalty options narrow


The future of the death penalty as a constitutional matter might well be gauged by two bold declarations in the most significant cases on capital punishment that the Supreme Court  decided this term.

On Wednesday, in Kennedy v. Louisiana (07-343), the Court’s five-Justice majority said at one point: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”  For a Court not yet ready to end the long-running constitutional experiment with the death penalty, it was a revealing utterance of near-revulsion at the process.

Back on April 16, in a separate opinion in Baze v. Rees (07-5439), Justice John Paul Stevens wrote that he had reached “the conclusion that the imposition of the death penalty represents ‘the pointless and needless extraction of life with only marginal contributions to any discernible social or political purposes.  A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ “  With that, a fourth Justice in the nation’s history — after William J. Brennan, Jr., Thurgood Marshall and Harry A. Blackmun — converted to the abolitionist side on capital punishment.

The first of those two statements is clear evidence that the Court, at least as presently constituted, is determined not to “extend” or “expand” the reach of the death penalty (the use of the words “extend” and “expand” prompted some of the dissenting Justices’ most critical responses Wednesday).  And the second of those statements suggests, once more, that the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote and there will be an internal voice reinforcing any other Justice’s hesitancy.

That does not mean, however, that the Court will routinely stop executions.  Since its ruling in Baze, it has repeatedly declined to step in to block a scheduled execution. And even Justice Stevens has not dissented from those orders.  But there is a definite trend line: following nullification of the death penalty for the rape of an adult woman (Coker v. Georgia, 1977, for murder by a mentally impaired individual (Atkins v. Virginia, 2002), and murder by a minor (Roper v. Simmons, 2005), the options for using the death penalty continue to narrow.

As part of the Louisiana decision, the Court made it definite that no death sentence would be upheld for a crime against an individual, when the victim is not killed. And, it went further, suggesting that the present majority will be, at the very least, deeply reluctant to allow capital punishment for any new crime, or for a crime for which the death sentence has not been imposed for many decades (as was the case with child rapists).

The Court, as Justice Kennedy wrote Wednesday, has spent 32 years laying down rules to limit the use of capital punishment, to avoid its “arbitrary imposition” when the crime was murder. The Court, he added, would not now begin “the same process for crimes for which no one has been executed in more than 40 years.”  That, he said, would “require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty.  Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

Beyond the specific language used, and even beyond the constitutional methodology the Court has developed for judging the validity of capital punishment in a given circumstance, the trend of its decisions reveals a moral orientation that proponents of the ultimate penalty may have increasing difficulty trying to overcome.  It could be significant, though, that the trend that has been developing now has the support of a mere majority of five, and the two newest members of the Court — Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. — were in dissent on Wednesday.  The future — and the trend — may well depend upon future Presidents’ appointments to the bench.