CAPITAL PUNISHMENT (Update 1)

During the 1980s, a majority of Justices on the Supreme Court struggled without success to disengage the Court from playing an intimate role in the day-to-day administration of capital punishment. As early as 1984, an article on the evolving jurisprudence of capital punishment in the Court could plausibly be titled "Deregulating Death," and the Court continued to reject major challenges to state systems of capital punishment for the rest of the decade. In the wake of McCleskey v. Kemp, decided in 1987, scholars could conclude that "nothing appears left of the abolitionist campaign in the courts—nothing but the possibility of small-scale tinkering" (Burt, p. 1741).

Yet conflicts about capital punishment have been a persistent and growing problem for the Court through the 1980s, and there are no indications that the burden will lessen soon. The number of capital cases producing opinions increased during the decade from about five per term in the early 1980s to about ten per term in the late 1980s. Moreover, the level of dispute among the Justices has substantially increased during the course of the decade. In the early 1980s, most challenges to capital punishment were rejected by substantial majorities of the Justices, with a 7–2 vote being the most common outcome during the 1982, 1983, and 1984 terms. Only three of seventeen opinions issued during these three terms were decided by 5–4 margins. Justices william j. brennan and thurgood marshall were the isolated dissenters in most of these early cases.

By contrast, in the four terms after October 1985, the Court has been sharply and closely divided. Of the twenty-seven cases decided over this span, fourteen produced 5–4 divisions, with Justices john paul stevens and harry a. blackmun usually joining Justices Brennan and Marshall in opposition to the deregulatory thrust of the Court majority. We know of no other body of the Supreme Court doctrine in which the majority of cases divide the Court 5–4.

With the Court divided almost to the point of a mathematical law of maximal disagreement, both jurisprudence and decorum have suffered. Few would suggest that the Court's decisions of the past decade cumulate into a body of doctrine that is even minimally coherent. And close decisions on questions that are literally matters of life and death do not promote good manners among Justices locked in conflict. It is thus no surprise that Court decorum has been put at some risk by the sustained contentiousness of the death penalty cases.

Close and acrimonious division of the Justices may also undermine the degree to which the Supreme Court's decisions confer legitimacy on the practice of execution in the 1990s. Confidence in the fairness of the system is not bolstered when four of nine Justices publicly proclaim that the race of the victim has a discriminatory influence on whether defendants receive death sentences. The result is that the consistent but slim majority support on the Court may not provide much momentum for public acceptance of the equity of capital punishment, much as the Court's leadership toward abolition was undermined by a slim and divided majority on the Court in Furman v. Georgia (1972). A 5–4 majority may lack the institutional credibility to help make executions an accepted part of a modern American governmental system.

One other pattern is of special significance when discussing capital punishment in the Supreme Court during the 1980s: The transition from theory to practice of executions has not yet occurred in most of the United States. Despite the Court's attempts to withdraw from close supervision of death cases, the backlog of death cases has increased substantially, and the lower federal courts continue to play an important role in stopping executions. Indeed, over half of federal court of appeals decisions in death penalty cases result in overturning the death sentence.

As of January 1990, although thirty-seven states have legislation authorizing capital punishment (and thirty-four of these have prisoners under death sentence), only thirteen states have executed since the reauthorization of the capital punishment in Gregg v. Georgia, in 1976. Nine of the thirteen states with a recent execution are located in the South; only one new state resumed executions during the last four years of the 1980s.

The number of executions has also stayed low throughout the 1980s, with a high of twenty-seven in 1987 and an annual average of about twenty for the last five years of the 1980s. But, although the level of executions remained low and eighty percent of these are clustered in four southern states, the number of prisoners under death sentence had increased by the end of 1989 to about 2,400, a more than one-hundred-year supply at the prevailing rates of execution.

Thus, by the end of the 1980s, the withdrawal of the Supreme Court from regulation of the administration of the death penalty had not yet produced a substantial increase in the number of executing states or the number of executions. But the long involvement of the federal courts had helped produce a death row population four times as great as that which cast a shadow on the Court when Furman v. Georgia was decided in 1972.

Against this backdrop, an ad hoc committee chaired by retired Justice lewis f. powell diagnosed the problem that generated these numbers as the delay produced by repetitive and multiple federal appeals. The committee suggested the enactment of new statutory procedures for handling death penalty cases in the federal court, which, by and large, would eliminate the filing of successor federal petitions. Under the new procedures, if the state has provided counsel to those sentenced to death through the state appeal and habeas corpus process, absent extraordinary circumstances, a federal court would lack the power to stay an execution of the condemned person upon the filing of a successor federal petition.

Should such procedures be enacted and actually reduce federal appeal time more than they increase state appeal time, further pressure toward increasing numbers of executions will occur just when large numbers of cases will be exhausting currently available federal reviews.

But even if the Powell committee recommendations were to maintain delay at current levels, but shift more of the total procedural load onto state courts, this result might serve one significant objection that motivated the exercise—it would reduce the extent to which the federal courts could be blamed for delay in execution. A persistent fact of American government is that even among institutions and actors that believe twenty-five executions a year is more appropriate in the United States than 250, there is constant pressure to avoid appearing to be responsible for restricting the scale of executions. The politics of capital punishment at all levels in the United States involves passing the apparent responsibility for preventing executions to other actors or institutions. And the Powell committee's work can be understood in part as a public-relations gesture in this tradition of passing the buck away from the federal court system.

In 1989 and 1990, the Supreme Court, by the familiar 5–4 vote, responded to the considerations that had moved the Powell committee. Now, with few exceptions, a federal habeas corpus petition must be denied when it rests on a claim of a "new right"—one that had not yet been recognized by the Supreme Court when the appeals ended in the state courts. Not only has the Court specifically applied this new bar to death penalty cases, but it has also read the idea of a "new right" broadly enough to bar all but a very few claims.

What would be the impact of true federal court withdrawal from restrictions on execution? The potential number of executions that could result is quite high, two or three times as many as the 199 executions that were to date the twentieth-century high recorded in 1935. How many state governors or state court systems would compensate and to what degree remains to be seen. Practices like executive clemency that used to be a statistically important factor in restricting executions atrophied during the twenty-five years of primary federal court intervention in the capital-punishment process. Whether these processes would reappear under the pressure of large numbers of pending executions in northern industrial states cannot be predicted, nor is it possible to project a likely national number of executions that could represent a new level of equilibrium.

The one certainty is that the U.S. Supreme Court will play a central day-to-day role in any substantial increase in executions. Whatever its doctrinal intentions or public-relations ambitions, the Supreme Court will be for the mass media and the public the court of last resort for every scheduled execution in the United States for the foreseeable future. If executions climb to 100 or 150 per year, the continuing role of the Court as the last stop before the gallows will be that element of the Court's work most sharply etched in the public mind. For an institution narrowly divided on fundamental questions, this case-by-case process could increase both the labor and the acrimony of the Court's involvement with capital punishment. To escape this role would call for more than a shift in procedure or court personnel; it would require a different country.

Under these circumstances, will the hands-off doctrine the Court has so recently constructed continue as executions multiply? In the short run, any major shift in doctrine would be regarded as a surprise. This is a matter more of personnel than of precedent. stare decisis has not often been a reliable guide to Supreme Court pronouncements in capital punishment. Instead, doctrine seems more the servant of policy than its master in this field, and this is equally the case for Gregg v. Georgia as for Furman v. Georgia. But the current majority is apparently firm and includes the four youngest Justices.

In the long run, if the United States is to join the community of Western nations that has abolished capital punishment, the U.S. Supreme Court is the most likely agency of abolition in the national government. The principal flaws in the system of capital punishment are the same as they have been throughout the twentieth century. The doctrinal foundations for reacting to these matters are easily found in the Court's prior work.

No matter the course of the Court's future pronouncements, capital punishment will remain an area of inevitable judicial activism in one important respect: Whatever the substance of American policy toward executions, the U.S. Supreme Court will continue to be the dominant institutional influence of national government on executions in the United States.

Franklin Zimring

Michael Laurence
(1992)

(see also: Capital Punishment and Race; Capital Punishment Cases of 1972; Capital Punishment Cases of 1976.)

Bibliography

Ad Hoc Committee on Federal Habeas Corpus in Capital Cases 1989 Committee Report and Proposal. Washington, D.C.: Judicial Conference of the United States.

Burt, Robert A. 1987 Disorder in the Court: The Death Penalty and the Constitution. Michigan Law Review 85:1741–1819.

Weisberg, Robert 1983 Deregulating Death. In Philip J. Kurland, Gerhard Gasper, and Dennis J. Hutchinson, eds., Supreme Court Review, pp. 305–396. Chicago: University of Chicago Press.

Zimring, Franklin E. and Hawkins, Gordon 1986 Capital Punishment and the American Agenda. New York: Cambridge University Press.