Abolitionists have ample reason to believe a Supreme Court decision declaring the death penalty unconstitutional is within their grasp. After another botched execution this week, it must look like the day is coming ever closer.
Over the past dozen years, the court has gradually narrowed the permissible uses of capital punishment, rejecting its use for juveniles, child rapists who did not kill, and the mentally retarded. This past May, in Hall v. Florida, the court also announced that mental retardation couldn’t be determined by a hard and fast numeric rule, which Florida and other states had used to limit the impact of the court’s ban.
Those decisions suggest to court watchers that there may finally be a five-justice majority to reject the death penalty in all cases. The questions folks are asking are who are they and when will it happen. The liberal wing seems dependable. Justices Stephen Breyer and Ruth Bader Ginsburg have both consistently voted against the death penalty. Last year, Justice Sonia Sotomayor dissented from the court’s refusal to hear a challenge to Alabama’s death penalty law, which allows a judge to override a jury’s recommendation of mercy. Based on Justice Elena Kagan’s vote in Hall and her legal pedigree—which includes a stint clerking for Thurgood Marshall, an outspoken death penalty opponent—there’s ample reason to believe she’d be receptive to a constitutional challenge to capital punishment as well.
There’s also ample reason to believe that a fifth vote could come from Justice Anthony Kennedy. In fact, one could argue that Kennedy’s vote is even more dependable than the others. The juvenile case (Roper v. Simmons), the child rapist case (Kennedy v. Louisiana), and Hall, were all 5–4 decisions. In each, Kennedy both cast the decisive vote and wrote the majority opinion. Over the years, his position on capital punishment has become more principled and his rhetoric increasingly robust. In Hall, Kennedy wrote that executing an intellectually disabled individual “violates his or her inherent dignity as a human being” and serves “no legitimate penological purpose.” He has also repeatedly expressed concern with America’s international position as a grim outlier on the death penalty and, as far back as a 2003 speech to the American Bar Association, has said that he is deeply troubled by the American criminal justice system generally.
And suddenly this week, two broad-based challenges to capital punishment have been hand-delivered to death penalty abolitionists. If the court is standing by, it should be on notice that the situation on the ground is changing. Judge Cormac Carney’s decision last week rejecting the California death penalty as unconstitutionally arbitrary is remarkable. It is also a template for a Supreme Court brief seeking to abolish the death penalty nationwide. Furman v. Georgia, a 1972 decision striking down the death penalty as then practiced as unconstitutional, and Gregg v. Georgia, a 1976 decision upholding revised death penalty laws, require states to create nonarbitrary sentencing systems. Carney’s conclusion last week is that this mandate is violated by his state’s practice of executing only a random few murderers. California executes a smaller percentage of death-sentenced murderers than any other capital punishment state, but the randomness argument could be made about any other death penalty state. Capital sentencing everywhere is infected by racism and classism.
The second sign that things could be changing is Joseph Wood’s botched execution Wednesday night. It, too, lays the foundation for a compelling potential argument for doing away with capital punishment. In 2008, the court rejected by 7–2 a challenge to Kentucky’s lethal injection protocol. The plurality opinion, authored by Chief Justice John Roberts and joined by Kennedy, held that “an isolated mishap alone does not violate the Eighth Amendment.” but after Wood this week, and Clayton Lockett’s botched execution in April, it’s difficult to characterize these mishaps as isolated. They are starting to look more like the norm.
Abolitionists have other reasons to believe the lethal injection decision might be reversed or modified. Breyer’s vote with the majority in that 2008 case was tepid and based in part of the insufficiency of the evidence of suffering. Also, Kagan has replaced John Paul Stevens, who voted with the majority to uphold Kentucky’s lethal injection system.