by David Von Drehle, Washington Post
For more than 10 years, from the late 1980s until recently, death-sentenced inmates won virtually no major victories in the U.S. Supreme Court or elsewhere. The political climate tilted dramatically in favor of capital punishment, and the pace of executions quickened to the fastest rate in nearly half a century.
Recently, however, the climate has changed. Governors in Illinois and Maryland have suspended the death penalty in their states. The rate of executions nationwide has slowed somewhat. And, in the past week, the Supreme Court has delivered its strongest blows to capital punishment in 30 years.
But as the court’s decisions make clear, these events do not yet represent a consensus about what should happen in the future. Many capital punishment supporters are concerned that a trend may be starting that will lead ultimately to abolishing the death penalty entirely. So far, however, recent developments could just as easily fit into an age-old American trend of embracing the death penalty while struggling to cleanse it of moral and intellectual conundrums.
“I can already hear the newspapers saying, ‘This is the halfway step to outright abolition,’ ” said Robert Blecker, a death penalty supporter and professor at New York Law School. That, he added, is one way to view the Supreme Court’s actions. After all, both of the recent decisions overturned pro-death penalty rulings from a dozen years ago, suggesting that the court might be fundamentally rethinking the matter.
“Another view,” Blecker said, “is that this is a court animated by a greater understanding that the death penalty should be limited to the worst of the worst. It’s not a halfway step to abolition, but a reform to make the death penalty more palatable.”
Support for the moratoriums -- and for the various bills pending in Congress and elsewhere to require DNA tests in many capital cases -- comes from awkward and temporary alliances between opponents and supporters of the death penalty. Yesterday’s dramatic court ruling -- which struck down capital sentencing systems in five states and endangered the systems in four others -- was perhaps the most awkward and temporary alliance of all. Justices Antonin Scalia and Clarence Thomas, consistent supporters of the death penalty, joined the majority alongside Justices Stephen G. Breyer and John Paul Stevens, whose recent opinions have adopted the tone and arguments of committed abolitionists. They shared a sense that the current death penalty is riddled with problems, but they differed on at least as much. They did not agree, for example, what the problems are.
Scalia was blunt about his misery over this marriage. The case of Ring v. Arizona, he wrote, “presents me with a difficult choice . . . [a] quandary.” He blamed his discomfort on a 30-year effort by the court to strictly regulate the way states impose the death penalty. “In my view,” he wrote, “that line of decisions had no proper foundation in the Constitution.” It was the court’s own fault, he argued, that Arizona and other states wound up with a system in which judges make key factual determinations to impose death sentences.
Still, grudgingly, Scalia concluded that wherever the blame might lie, those systems violate the Sixth Amendment right to a jury trial.
In similar ways, supporters and opponents of the death penalty can end up backing the same blue-ribbon commission or DNA bill. Supporters may argue that a reformed death penalty will result in less litigation and swifter justice. Opponents, on the other hand, may decide that steadily narrowing the range of the death penalty is the path to outright elimination.
At some point, these squabbling and mismatched horses are liable to start pulling in opposite directions again.
When they do, however, there will be no denying that they moved the bandwagon while they were pulling in tandem. Last week’s decision invalidating the death penalty for mentally retarded inmates, while it might not invalidate as many death sentences, may be a better measure of how much things have changed.
In that case, Atkins v. Virginia, six of the nine justices signed onto the closest thing to a road map the court has ever provided to abolitionists. Historically, anti-death penalty decisions by the court have been either cramped -- striking down sentences on the narrowest possible grounds -- or incoherent, cobbled together from a collection of independent opinions.
For example, Furman v. Georgia, the 1972 case that briefly led the court to abolish the death penalty entirely, consisted of five distinct explanations for why capital punishment had to go. They ranged from Thurgood Marshall’s denunciation of the practice to Byron White’s lament that it was not used often enough.
Last week, though, a clear majority signed onto the idea that the death penalty would become unconstitutional if it violated “evolving standards of decency.” And, more than that, the majority took a broad and flexible approach -- much too flexible, according to Chief Justice William H. Rehnquist’s dissent -- to gauging the evolution of standards. A simple “momentum” against the death penalty, in state legislatures, opinion polls and even foreign countries was enough to qualify in Atkins.
As a result, some death penalty opponents, a bunkered and embattled breed just five years ago, now allow themselves to imagine the eventual collapse of capital punishment.
“This opinion says what we’ve been doing the past 20 years, executing mentally retarded people, is now wrong,” said Jeff Kirchmeier, an associate professor at the City University of New York School of Law. “Twenty years from now, what will seem wrong?”
Stephen Bright, the director of the Southern Center for Human Rights in Atlanta, is a longtime foe of the death penalty and an expert on the Supreme Court’s history with capital cases. Yesterday he seemed vaguely hopeful and resigned all at the same time. Mostly he was surprised by his new allies, however temporary they might prove.
“I never in a million years would’ve thought” that Justice Anthony Kennedy, a conservative swing vote, would join the majority in the Ring case, Bright said. “For anybody to say that this Supreme Court is anywhere near the abolition of the death penalty would be a great deal of wishful thinking. But I think the court is engaged on these issues” -- after years of disengaging -- “and these are hopeful signs.”