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The not-so-modern death penalty

The death penalty has generated dispute and controversy at the Supreme Court for decades. This past term was nothing new. In Bucklew v. Precythe, Justice Neil Gorsuch proclaimed for a bare majority that “the Eighth Amendment does not guarantee a prisoner a painless death.” Justice Elena Kagan garnered just enough votes in Madison v. Alabama to clarify that execution may be cruel and unusual if  “dementia or another disorder,” as opposed to “psychotic delusions,” has left the accused with no memory of the offense. In Dunn v. Ray and Murphy v. Collier, the court allowed Alabama’s execution of Domineque Ray to go forward despite the prison’s denial of Ray’s request that a Muslim imam be present in the execution chamber, but blocked Texas from executing Patrick Henry Murphy, who had requested the presence of a Buddhist spiritual adviser – with Justice Brett Kavanaugh taking pains in a separate statement to delineate a distinction. As we approach a new term, the justices will continue to hear capital cases and the federal government will pursue executions in federal cases for the first time in two decades.

We have become so inured to this state of affairs it can be hard to remember the source of all the controversy, and indeed of the modern death penalty itself. To search for that origin takes us back to 1972, the beginning of a four-year saga during which the Supreme Court reversed, and then reversed again, its position on executions in the United States. At the heart of that reversal lay the appointment of the late Justice John Paul Stevens. Much has been discussed this summer in remembrance of Stevens’ legacy. A closer look at his role in establishing the modern death penalty – for which he would later publicly proclaim regret – may help us better appreciate the contours of where we now stand.

In essence, the Supreme Court banned and then reinstated the death penalty in the 1970s. The pendulum’s first swing, Furman v. Georgia, came at the very end of the term in June 1972. The opinion itself was a curiosity: a brief per curiam explaining the momentous result of the 5-4 vote followed by more than 200 pages of concurrences and dissents. All nine justices wrote opinions.

Furman’s result was sweeping. Georgia’s capital-punishment statute was discretionary, meaning it left to some body, whether judge or jury, the decision to sentence an offender to death. The court determined that discretionary laws with no guidelines – a category that included every capital-punishment law then on the books – led states to administer the death penalty in an arbitrary, and thus cruel and unusual, fashion in violation of the Eighth and 14th Amendments. With one stroke, the court wiped out the death penalty nationwide. Yet that stroke was far from precise. The five opinions written by the justices in the majority each focused on a different aspect of arbitrariness, leaving a thorny mess for state legislatures to sort through should they wish to craft acceptable laws.

Imprecision aside, Justice Potter Stewart, who joined the majority in Furman, boldly predicted that “the death penalty in the United States was finished.” No American had been executed in five years. The size of death row would deter states from actively crafting new statutes in an attempt to pass constitutional muster.

In fact, the opposite occurred. Over 30 states enacted statutes that in some way – whether by making execution mandatory for certain crimes or by imposing guidelines for its prescription – attempted to address the arbitrariness Furman took issue with. Legal challenges immediately ensued. As these challenges wound their way through the federal judiciary, the court seemed destined for another death-penalty reckoning.

Then in November 1975 Justice William Douglas retired. Douglas was among the most eager of the five majority votes in Furman, using his opinion to tee up an argument against the death penalty at its core. Before Douglas retired, the Supreme Court had agreed to put a number of challenges to new post-Furman laws on its docket. His replacement who would hear them, appointed by President Gerald Ford, was Stevens.

Undoubtedly Stevens sensed the gravity of the cases he faced and the decision he would make. But he could not have known that this first test would leave one of the longest-lasting and most controversial impacts of all his jurisprudence.

In 1976, with Stevens on the bench, the Supreme Court decided five capital cases, often referred to by the leading case Gregg v. Georgia. In order to provide a comprehensive sample, each case concerned a different crime and a different type of statute. Stevens departed from the position of his predecessor. Along with Stewart and Justice Lewis Powell, he formed a pivotal voting bloc that carved a coherent framework through these five cases. Although the vote and outcome in each case differed – mandatory sentences were struck down while discretionary laws were upheld with restrictions – the message was clear: The death penalty was not, per se, cruel and unusual punishment.

States moved quickly to adjust their laws based on the ruling in Gregg. And over the following decades, extensive litigation has resulted in a number of refinements to the framework Gregg established. In the 2002 decision Atkins v. Virginia (authored by Stevens), the Supreme Court ruled it unconstitutional to execute someone with a mental disability. The court’s decision three years later in Roper v. Simmons (joined by Stevens), rendering minors ineligible for the death sentence, was bolstered by its 2012 ruling in Miller v. Alabama shielding them from mandatory life without parole. Recently the justices have debated the constitutionality of various methods of lethal injection. In a notable example, the splintered 2008 decision Baze v. Rees, a frustrated Stevens concurred only to declare, hearkening back to Furman and Gregg, that he would have struck down the death penalty as cruel and unusual had Baze presented the chance:

The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived … just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Yet the essence of Gregg remains. The death penalty is currently constitutional, at least in some instances. The precedent Stevens helped engineer in 1976 has outlived him.

Although today’s politics may share some commonalities with the early 1970’s – declining public support for the death penalty, a president urging its expanded implementation, and a majority of conservative justices on the Supreme Court – much is also different. It remains to be seen whether the court will, as Stevens urged, undertake a “dispassionate, impartial” consideration of the constitutionality of the death penalty. Given evidence, though, in Bucklew and other recent decisions that a majority of the court is willing to uphold some version of capital punishment, a successful challenge to the constitutionality of the death penalty seems unlikely in the near future.

The description of last term’s orders in Dunn v. Ray and Murphy v. Collier has been clarified.

Recommended Citation: Kalvis Golde, The not-so-modern death penalty, SCOTUSblog (Sep. 26, 2019, 11:12 AM),