Mimesis Law
20 May 2019

The Death Penalty: Not Quite Dead Yet

Jan. 19, 2016 (Mimesis Law) — The New York Times called for the abolition of the death penalty this weekend in an editorial entitled “The Death Penalty Endgame.”  The editorial focuses on the case of Shonda Walter, which is currently being considered by the Supreme Court on a Petition for a Writ of Certiorari, and asserts:

Ever since 1976, when the court allowed executions to resume after a four-year moratorium, the abolition movement has avoided bringing a broad constitutional challenge against the practice, believing that it would not succeed.

The editorial notes that in the June, 2015 Supreme Court ruling Glossip v. Gross, which held in a 5-4 opinion that held that Oklahoma’s particular method of execution did not constitute cruel and unusual punishment,  Justice Stephen Breyer’s dissent called for an examination of the Death Penalty in general.

. . . rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.

From there, the editorial takes the rather naïve approach that the timing is now right for the Supreme Court to abolish the Death Penalty.

The justices may not grant Ms. Walter’s petition (others are also expected to be filed in the coming weeks), but they can no longer ignore the clear movement of history. They already have all the evidence they need to join the rest of the civilized world and end the death penalty once and for all.

Doubtlessly, views have shifted on capital punishment over the past decade or so. Part of that can be attributed to the fact that in a post-9/11 world, fewer crimes shock the conscience sufficiently to dictate the death penalty.  In the ‘80s and ‘90s, a 19-year-old kid could shoot and kill the clerk of a convenience store during a robbery and end up on Death Row.  Now, it is hard to imagine a prosecutor seeking death on such a case, absent the accused having an extremely alarming criminal history.

Nothing has influenced the decline of the death penalty more than the option of life in prison without the possibility of parole, or as it is affectionately called in the law biz, L-WOP. The editorial makes note of the effect that option has had on statistical approval:

A majority of Americans still support capital punishment, but the percentage favoring it has dropped from around 80 percent in the 1990s to about 60 percent now. When polls offer a choice between death and life without parole, people roughly split evenly.

That’s all well and good, but in the end, it has very little bearing on how the Supreme Court will ultimately regard the issue. While noting that the Supremes have barred execution of “minors, the intellectually disabled, and those convicted of a crime other than murder,” the New York Times seemingly fails to recognize that in each of those cases, the majority of the Court indicated that they were just fine with capital punishment in general.

The belief that Breyer’s call for an overarching examination of the constitutionality of the death penalty somehow signals that the Court is ready to declare it unconstitutional misses a few logical steps. First of all, it seems to ignore the fact that the Glossip ruling came down in June of last year.  At last glance, the same nine justices who voted 5-4 that the death penalty (even with a questionably cruel lethal cocktail) was still constitutional, are still on the bench.   Unless one of those five justices had a massive change of heart, capital punishment is most likely very safe.

While Breyer was joined by Justice Ginsburg in his dissent, Justices Scalia and Thomas took the time to write concurring opinions (where they both joined each other) which blasted the Breyer dissent. As strongly as Breyer and Ginsburg felt about the abolition of capital punishment, rest assured that Scalia and Thomas were there to staunchly maintain the polar opposite opinion.  Scalia apparently found Breyer’s dissent about the constitutionality of the death penalty so annoying that he compared the argument to the movie Groundhog Day, noting “they ask us for clemency, as though clemency were ours to give.”

Shonda Walter’s Petition for Writ of Certiorari certainly heeds Breyer’s call to examine capital punishment as a whole. It cites his words from the dissent in Glossip and then makes its headline arguments on the death penalty itself, rather than arguments specific to Walters’ case.  Making the argument that the “Death Penalty is a Disproportionate Punishment Even for the Gravest of Offenses” and noting the “National Trend Toward Abolition” and the fact that “The United States is Out of Step With the International Community’s Consensus Against the Death Penalty,” the Walters petition is much more of an omnibus argument against the morality of capital punishment than the legality of it.  At one point, the Petition even cites a quote from Leonardo DaVinci.

The idea that The New York Times believes that the Walter’s Petition could possibly be the one that finally slays the death penalty dragon is a silly one.  As long as the same nine Justices are on the Court, one can expect the same 5-4 decision, if that.  Although the Supremes did just make the intellectually disingenuous decision of declaring Florida’s death penalty laws unconstitutional, one week after they had allowed a Florida execution to take place, it would be shocking if they reversed themselves on the broader issue of capital punishment as a whole.

The New York Times is correct in assessing that capital punishment is on its way out.  If the Democratic candidate wins the White House for the next four to eight years, it is certainly conceivable that they would be making several Supreme Court nominations that would drastically turn the tide on the death penalty for good.  As it presently stands, now is not quite the time for the Death Penalty’s “endgame” and the Supreme Court is not quite place.


3 Comments on this post.

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  • Jason Truitt
    19 January 2016 at 1:58 pm - Reply

    You know, when the Constitution itself says that no one shall be deprived of LIFE, liberty, or happiness without due process, it seems to mean that one can be, by the letter of the Constitution, deprived of their life as long as they’ve had due process. So, like slavery prior to abolition, the death penalty is per se Constitutional. I know of no principle that would allow for something that is expressly permitted by the Constitution to be held unconstitutional–although I don’t have to tell anyone that I’m no Constitutional scholar, so maybe there is one out there. Maybe the taking of a life can never result from substantive due process? That’s a question for smarter people than me (who you can find on any street corner), but it doesn’t look like anyone is dealing with the fact that the Constitution expressly says it’s an option. That’s a big hurdle.

    I do think that the largest single thing that has contributed to the decline of the death penalty in Texas is the new-ish availability of life without parole. In the past a jury could either sentence a murderer to death or take the chance that he would be paroled sometime in the future. So if they wanted to make sure they never killed again, the death penalty was the only option. Now they can be sure he will never get out of prison, while also keeping their conscience clean.

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    20 January 2016 at 8:31 am - Reply

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  • Franxo
    24 January 2016 at 12:34 am - Reply

    It’s always struck me that the death penalty should be ruled unconstitutional on the grounds of cruel and unusual punishment using the logic that it inflicts extreme psychological and physical torture not just on those condemned, but ok family and loved ones and even non-related citizens. Further, one could argue that to know ones death is imminent, and it’s to come by the hand of another human, that’s clearly established as cruel and unusual because we universally reject death by another in the form of laws against homicide.