CAPITAL PUNISHMENT (Update 2)

The mid-1990s have witnessed an end to what one scholar described in the early 1980s as "a roller coaster system of capital justice, in which large numbers of people are constantly spilling into and out of death row, but virtually no executions take place." Executions averaged forty-five a year from 1992–1997, peaking in 1997 at seventy-one. Although death row continues to grow (at the end of 1997, it exceeded 3,300 inmates), one can anticipate a time in which more people are executed in a year than are added to the capital prison population.

A major reason for this dismal trend is the continued retreat of the Supreme Court from active monitoring of the death penalty. While defendants still chalk up occasional victories, these are mainly in cases affecting relatively small numbers of prisoners. Indeed, death penalty opponents have not generally mounted broad-based claims in the 1990s. With the Court's sanction in the late 1980s of capital punishment for the mentally retarded, penry v. lynaugh (1989), for perpetrators as young as sixteen, stanford v. kentucky (1989), for felony murderers who did not intentionally kill, Tison v. Arizona (1987), and for persons sentenced in systems tainted by racial discrimination, mccleskey v. kemp (1987), it appears that few if any systemic challenges remain.

Justice harry a. blackmun voiced his disgust with the majority's performance in this area. "From this day forward," he announced in Callins v. Collins (1994), "I no longer shall tinker with the machinery of death." He had concluded that the twin goals of modern death penalty jurisprudence under the Eighth Amendment, eliminating arbitrariness and ensuring individualized sentencing, stood in irreconcilable tension: advancing the one jeopardized the other. Worse yet, he noted, the Court was retreating from both of these principles.

Blackmun's criticism was well-founded. The Court continued a trend begun in the mid-1980s, tolerating laws and practices that detracted from the goal of nonarbitrariness. In addition, it showed increased willingness to compromise the aim that it had pursued more faithfully until the 1990s—individualized sentencing. For example, it affirmed a death sentence even though the jurors were not permitted to give the defendant's youth full mitigating effect in Johnson v. Texas (1993), and upheld a trial court's sentencing instructions that failed to mention mitigation in Buchanan v. Angelone (1998).

Arguably the most important setbacks for capital defendants occurred in the field of habeas corpus, rather than the Eighth Amendment. Since the 1970s, and increasingly over the following two decades, the Court has been narrowing access to federal court review by death-sentenced prisoners—the most avid consumers of the writ.

Throughout this period, the Court has demanded procedural punctilio of habeas petitioners. Slight missteps by defense counsel, in either state or federal forums, barred federal review of the merits of the prisoner's contentions unless he was able to demonstrate "cause" for, and "prejudice" from, the procedural default or, in the alternative, actual innocence. At the same time, the Court has declined to recognize innocence as a freestanding constitutional claim under the Eighth or fourteenth amendments for inmates seeking to avoid execution by presenting new evidence of innocence. In denying habeas applicants hearings on their claims, the Justices relied heavily on law precluding habeas courts from declarating or applying "new rules" favoring defendants. While most of the decisions in this area purported to interpret the statutes governing habeas, some dealt with issues implicating constitutional principles—for example, the doctrine that the Court cannot review decisions resting on an independent and adequate state law ground.

Congress echoed the Court's anti-habeas sentiment, enacting the anti-terrorism and effective death penalty act of 1996 (AEDPA). Among other things, it drastically limited second or successive habeas petitions, imposed a statute of limitations on habeas filings, and arguably established a deferential standard of review of state decisions on questions of law or mixed questions of law and fact.

In addition to issues of statutory interpretation, these provisions give rise to constitutional questions—such as whether the law amounts to a suspension of the writ, violates due process, or infringes on Article III's requirement of an independent judiciary—that the Court will have to resolve. In 1996, the Justices upheld one of its restrictions against a suspension clause attack. Other cases are percolating in the lower courts and will surely afford the Justices many opportunities to construe the statute's meaning and validity.

What does the future hold for capital punishment and the Court? Aside from habeas, it appears for the moment that the Court will likely continue to "tinker" with minor aspects of the doctrine. The newest Justices, ruth bader ginsburg and stephen g. breyer, moderate liberals on capital punishment, replaced a liberal—Justice Blackmun—and a conservative—Justice byron r. white; therefore, not very much has changed. Changes in the Court's jurisprudence regarding the death penalty will probably have more to do with changes in the Court's personnel than with paradigm shifts in ideology.

Vivian Berger
(2000)

(see also: Cruel and Unusual Punishment; Procedural Due Process of Law, Criminal.)

Bibliography

Berger, Vivian 1991 Black Box Decisions on Life or Death—If They're Arbitrary, Don't Blame the Jury: A Reply to Judge Patrick Higginbottom. Case Western Reserve Law Review 41: 1067–1092.

——1994 Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere. William and Mary Law Review 35:943–1023.

Greenberg, Jack 1982 Capital Punishment as a System. Yale Law Journal 91:908–936.

Steiker, Carol S. and Steiker, Jordan M. 1995 Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment. Harvard Law Review 109: 355–438.

Sundby, Scott 1991 The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing. UCLA Law Review 38:1147–1208.