The Connecticut Supreme Court is Right: Prospective Abolition of the Death Penalty is Cruel and Unusual

In 2012, the Connecticut legislature abolished the death penalty. Today, the Connecticut Supreme Court held that the death penalty violated the state constitution. You may be wondering how both of those sentences can be true (and no, they didn't reinstate it during the past three years). The answer is that the 2012 abolition was prospective; that is, it did not apply to those who had already been convicted and sentenced to death. The court's ruling, then, was that actually carrying out the death sentences that have already been imposed on Connecticut's 11 death row inmates would be (state-)unconstitutional. More specifically they held that executions would violate the due process provisions of the Connecticut constitution, which are understood to contain a ban on cruel and unusual punishments. Now, there's nothing especially remarkable about the idea that capital punishment is cruel and unusual. But the court's reasoning was, at least in part, new and interesting, and I quite like the move they make.

The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**


The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."

One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.

But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!


*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.

Why Death Is Different

The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.

One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:

Each of us is more than the worst thing we've ever done.

And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.

And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.

And that's why death is different (in this regard).


*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.

What Kind of God Is This

I'm doing the last set of readings for my Capital Punishment class, one chunk of which is about innocence, that is to say, about the process of getting people out of prison and out from under a death sentence on the grounds that they actually didn't commit the crime. And some of the readings are about the case of Anthony Ray Hinton, recently exonerated off of Alabama's death row after nearly three decades. Hinton was surprisingly honest about how angry he was, saying, for instance:

"The State of Alabama let me down tremendously. I have no respect for the prosecutors, the judges. And I say that not with malice in my heart. I say it because they took 30 years from me."

And:

"When the very people that you've been taught to believe in, the police, the D.A., these are the people that are supposed to stand for justice, and when you know that they lied to you, it's hard for you to have trust in anybody."

Pretty, y'know, reasonable, right? I share his sentiments, basically, though I've never suffered from the problems he's talking about. But then there's this:

"I've got to forgive. I lived in hell for 30 years, so I don't want to die and go to hell. So I've got to forgive. I don't have a choice."

And can I just say, f*ck that. That is so effing messed up. I mean, look, some people find it therapeutic or whatever to forgive those who have wronged them; certainly there's something to be said for not carrying your anger around with you forever. But, like, the people in question do not on the merits deserve forgiveness (at least, unless any of them have fessed up and admitted that they made a mistake, as the original prosecutor in another one of these cases did). They did something that was not so different from a murder, when you think about it, in robbing a person of the ability to pursue any happiness at all for the better part of his adult life and probably making it damned difficult for him to do so even after he's been released.

And the idea is that God, the Almighty and Benevolent, will punish Hinton with an eternity of damnation and torment if he does not forgive these people? That's just... that's just sick. Whatever there can be said for forgiveness, I think it just cannot be something that anyone gets to demand of you. Forgiveness is an act of grace, a fact which I believe is a big part of Christian theology.* And this is worse than just the various prosecutors and judges and the like demanding forgiveness from Hinton as of right. The idea here is that failing to forgive in Hinton's situation would be a sin, an offense not against those who wronged him but against the sovereign, so to speak. What kind of sovereign makes that a crime? What kind of sovereign turns to the victim of such a horrid injustice and says, look matey, if you don't find it in your heart to forgive your oppressors, I will consider that an offense against me and I will punish you for it, harshly? Like, what the hell? A god who demanded such of his subjects would not deserve words like "benevolent," to my mind; no, he would deserve words like "tyrant." Certainly he would not deserve our allegiance, let alone our love; perhaps our obedience, simply through raw brute-force deterrence, but that's not a very awe-inspiring figure.

Fortunately, the god in question (almost certainly) does not exist. But the people who propagate the idea of that god do exist. And really it's them I'm angry at. Anthony Ray Hinton should not be required to forgive the judges and prosecutors who robbed him of the better part of his life on pain of damnation; that's obvious. But equally, Anthony Ray Hinton should not be led to believe that he has to forgive those judges and prosecutors on pain of damnation. They don't necessarily have as much to answer for as the judges and prosecutors themselves, but the people who lead other people to believe in a tyrant god like this have an awful lot to answer for.



*Okay, yes, there is or at least has been a big split over whether salvation is a matter of grace or a matter of doing good works. But I'd say that the latter camp basically doesn't believe that salvation is a matter of forgiveness, of god's forgiving people for their sins, but rather sort of a matter of weighing a person's sins against their good works and seeing which predominates. I think. But don't really ask me, it's really not my area.

Moral Certainty and the Constitution

Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.

I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.

And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.

And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^

This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.

And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.




*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!

Sometimes the Easy Thing is Also the Right Thing

This semester I'm taking a class called "Capital Punishment: Race, Poverty, and Disadvantage." It is shaping up to be a rather unsettling class, though obviously in ways that are a feature and not a bug. In any event, our reading for this week is Furman v. Georgia, the 1972 case in which the Court briefly declared the death penalty unconstitutional. This is what I like to call a "seriatim" case, one in which every single Justice wrote an opinion of his own (in addition to a per curiam announcing the judgment of the Court but not the reasoning); the word is used to describe the British practice, also followed during the first decade of our Constitution, in which there was no single opinion of the Court and each judge would always deliver his own opinion. Chief Justice John Marshall abolished seriatim decision-making to promote Court solidarity and enhance its power and prestige, but every so often (especially during the Burger Court, I've found) things break down and most or all of the Justices need to have their say.

Anyway, one of the opinions was of course by Justice Blackmun. Here's how it opened:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.”

This was a dissenting opinion. Because, Blackmun says, his sentiments against the death penalty are purely those that should characterize legislative or perhaps executive decision-making, not the judicial disposition of cases. A little later on he says that:

To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death.

The implication is that, while it would be easy, it would not be correct, and it would not be correct because this is not a decision for judges to make. This is a pretty common trope, employed perhaps most often by Justice Felix Frankfurter, although Blackmun's opinion is unusual in a way. The typical Frankfurter line is that "whatever we may think of the merits of this policy," it is not unconstitutional and therefore the judiciary is powerless to stop it. Blackmun, on the other hand, tells us in no uncertain terms what he thinks of the policy; he goes into considerable depth about how it is contrary to all of his deepest values.  Blackmun closed by saying that:

Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.

Of course, some several decades later Blackmun famously declared that he would "no longer tinker with the machinery of death." That is to say, he had become convinced not that capital punishment was inherently unconstitutional but that it could not be imposed through a system that was anything other than arbitrary and capricious, contrary to the Constitution's requirements.

There's a lesson in that, I think. From his childhood through his retirement from the Court and his death, Harry Blackmun felt nothing but revulsion toward the death penalty. When he joined the Court, he felt however compelled to ignore his own moral impulses and instead apply "the law," operating of course under the assumption that those were two disjoint categories. Justice Blackmun would not do the "easy" thing and strike down those laws he found so morally repugnant; no, he would follow the law. But the older, wiser Justice Blackmun eventually became convinced that the "hard" thing simply could not be done lawfully. He never took the position Justice Brennan forcefully (and, in my opinion, masterfully) espoused in Furman, that death was an inherently unconstitutional punishment. Rather he realized that judicial attempts to craft a system of procedural safeguards that would cabin the evils of the punishment, to "tinker with the machinery of death," were futile, that the system could never be good enough. That was the voice of experience, not naive idealism. It was rather naive when he once thought that such tinkering was worthwhile, that we could in fact build a good enough machine of death.* Experience taught him to follow his heart.

Yes, it is easy to strike the balance in favor of life and against death. There's a reason for that, and it's not just that it's the right thing to do, morally speaking (though it does follow from this basic fact). It's because a wrongful decision striking down these laws would have been no worse than any other decision wrongly denying legislative authority to the American people on some purported constitutional grounds, while a wrongful decision upholding them would have been far worse than any other decision wrongly permitting to them such legislative power, for it would have led the American government to kill people, human beings in its custody, in violation of the Constitution--perhaps the worst legal atrocity imaginable. Therefore, had I been in Blackmun's situation, I would not have voted to uphold the death penalty unless I was absolutely convinced that there was no possible legitimate constitutional argument for striking them down. This is ultimately the key point of Philip Bobbitt's theory of constitutional law: that the law is ultimately indeterminate, that there are different ways of making valid legal arguments and that these modalities can conflict, and that this is an acceptable, nay, indispensable part of our legal system because it allows us to choose. And that choice, between different possible legitimate ways of resolving a case, cannot help but be a place where conscience enters the legal system. For Bobbitt, this is the whole point.

In 1972, Harry Blackmun thought he didn't have a choice--or rather, he thought he had one choice that was easy and another one that was correct. But, fortunately, we live in a constitutional system that does make some room for conscience and for moral choice. And when we make those moral choices, when we follow our conscience in choosing between two visions of the law, of course those choices will feel easy. It should always feel easier to follow conscience than to disregard it. But just because it is easy doesn't mean it isn't also right.

Just ask Justice Blackmun.


*No, not that kind.

Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt

Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”

This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.

It's Staggering How Wrong McClesky Is

I have been given the unfortunate task, for my constitutional law class, of coming up with a defense of McClesky v. Kemp, the case in which the Supreme Court rejected, 5-4, challenges to death penalty laws on the grounds that they were applied in racially unequal ways. Yeah. Anyway, the article that I'm reading about the case and its history suggests that part of Justice Powell's motivation in being that fifth vote was that the statistics showed discriminatory application of the death penalty mostly related to the race of the victim in a murder, not that of the defendant. The idea, I suppose, is that a black defendant is not being discriminated against on account of his race if he is sentenced to death because he killed a white guy, whereas someone else, white or black, who killed a black guy is just imprisoned for a mighty long time. But there's a deep historical perversion here. If you read the Fourteenth Amendment the way people would have before the Slaughter-House Cases eviscerated the Privileges or Immunities Clause, most of the job of guaranteeing against the invasion of substantive rights by law on discriminatory grounds had already been done. The peculiar function of the Equal Protection Clause, however, was to prevent Southern states from applying facially neutral laws in discriminatory ways. Specifically, to prevent them from having a de facto policy of acquitting, or not even indicting, white men who killed blacks, while throwing the book at blacks who killed whites. Or, to put it another way, to prevent the exact thing the NAACP's statistics showed in McClesky. The exact same thing. Okay, we don't generally let the killers of black people just plain walk of out court these days, but we let them live, as we (or at least those states that still ever execute anyone) don't those who kill whites. So yeah, sure, maybe the defendants aren't being denied the equal protection of the laws. But the victims are. Unfortunately, they can't exactly bring suit: they've been murdered, is kind of the whole point. Someone needs to be able to object, and it has to be people sentenced to die for killing whites. Honestly I think a white man so sentenced would have a valid claim, too, but certainly a black one. One way or another, though, I know that for death penalty laws to survive because their unequal application is precisely the kind envisioned by the Equal Protection Clause as most problematic is deeply perverse, and I can only hope that the next President Clinton is able to appoint that fifth Justice to get rid of the whole system.

Arbitrary and Capricious, Eighteenth-Century Style

I'm doing some reading for my British History class about the criminal "justice" system in England in the 1700s. Apparently, during that century Parliament passed an awful lot of new laws authorizing capital punishment for various offenses against property. However, the number of actual executions for crimes against property didn't increase much at all, even as the number of convictions for capital crimes against property did. Why? Because an awful lot of death sentences got commuted by royal prerogative into exile to, say, Australia. This happened on the recommendation of judges, and apparently the very same MPs passing the death penalty statutes were often the ones intervening to secure clemency. This seems like a bit of a puzzle, at first, but given the discussion of capital punishment in the contemporary era, and particularly my grandfather's book on the subject, there's a pretty obvious answer that occurs to me. When you have a lot of people getting convicted of capital crimes, most of whom don't actually get executed, it gives the people deciding to whom the pardons will be doled out a tremendous amount of arbitrary and capricious power. It's sort of analogous to what happens if you create a legal code in which just about everyone will be guilty of some minor offense, jaywalking, say, or something perhaps slightly less minor but equally routine, but where as a rule no one is prosecuted. That gives the authorities the ability to selectively enforce those laws against people they don't like, for one reason or another: political enemies, say, or more serious criminals they can't get on the main charges of murder, theft, whatever. And if you just look at the convictions, or in the 18th-century Britain case if you just look at the executions, you won't see anything wrong with the procedure: the people in question were guilty under law of committing crimes, and were punished accordingly. You only notice a problem when you see all of the people equally guilty not being punished, and start to wonder why some got away with their crimes while some had the book thrown at them.

Well, I Suppose That's One Way to Look At It

Here's a passage from the article I'm currently reading on political thought during the Restoration Monarchy in Britain from the 1660s to the 1680s:

"The clinching argument [for the Tories] that sovereign authority must be God-given was that rulers had the right of capital punishment. Since the Commandment enjoins, 'Thou shalt not kill', the right to take life could not have been transferred by the consent of the people, for it was not a right that the people had to give."

That's... an interesting argument, seventeenth-century Tories. Observing that your religion says killing is wrong, and that your kings possess the power of capital punishment, your conclusion is not that this royal power conflicts with the relevant Commandment and is therefore wrong, but that this is evidence that the kings have a kind of quasi-divine status that exempts them from the Commandment. Interesting.

The Question All Death Penalty Supporters Need To Answer

It's a reasonable assumption that anyone who in any way supports the death penalty probably doesn't believe that executing a genuinely guilty heinous murderer is fundamentally wrong, so that's not the question. Rather, the question is this:

What is the highest rate of execution of innocent persons that could exist without making you cease supporting the death penalty?

This is a question that simply must be answered before a conversation about the death penalty can commence. But I rarely hear it asked. (The rate in question can be in just about any units: innocents per execution, innocent executions per capital crime committed, innocent executions per year, or per capita per year. Whatever.)

Death Penalty Weirdness

From a couple of recent polls on the death penalty, presumably inspired by the Troy Davis fiasco: in a CNN/Opinion Research Co. poll, people are split on the appropriate punishment for murder, with 48% favoring death and 50% favoring life without parole. But, in that same poll, 72% think an innocent person has been executed in the last five years. Meanwhile, a Gallup poll finds 61% saying they favor the death penalty for murder (not specifying life without parole as the alternative always gets a higher support level for capital punishment), but 64% don't believe that the death penalty deters murders. They also find that 52% believe the death penalty is administered fairly. If I assume all of these are valid percentages, and if I line the numbers up so that no one who takes an nth-percentile anti-death-penalty position on one issue will take a position less than the nth-percentile on any other question, then I get the following distribution of American citizens. 23% believe that the death penalty deters murder, and is applied fairly, and that no innocents have been executed in the last five years, and accordingly support the death penalty, even over life without parole. 9% are like those 23%, but they do think we've killed some innocent people recently. The next 16% are like the last 9%, but don't think the death penalty deters murder. They do think it's applied fairly, however, and therefore support it completely. Another 4% follow that 16% in thinking that the death penalty is applied fairly, but would prefer life without parole. Finally we have 9% who don't think the death penalty deters murder, do think it sometimes kills innocent people, do not think it is applied fairly, and do not support it when given the alternative of life without parole, but do support it when not prompted with that alternative. Then we have 35% who oppose the death penalty on every possible measure.

The Horns of a Constitutional Dilemma

In Gregg v. Georgia (1976), the Supreme Court lifted its moratorium on capital punishment that had prevailed since Furman v. Georgia (1972), and at the same time defined a standard that death penalty schemes would need to meet. First the scheme would have to provide objective criteria by which to judge death penalty cases, and those criteria would need to be enforced by appellate courts. Second, though, the scheme also had to allow the sentencer to take into consideration the "character and record" of the individual defendant. This is meant as a limiting factor as well, i.e., only cases that a) meet the objective criteria and b) do not have mitigating "character and record" circumstances are viable death-penalty cases. I'm sympathetic to this second part, both out of general "the fewer executions the better" bias and because I think it makes a certain amount of sense. But I also think that if you're going to insist upon that standard then you hit rather sharply against the Equal Protection Clause. Because, remember, this second standard (especially when combined with later rulings requiring a jury verdict in favor of death) requires as a necessary precondition to the state's killing a defendant is for the jury to declare that it doesn't really like the guy. If the jury did like the guy, it would be bound to not kill him. So in a very real sense one of the criteria for whether the state can execute you is, "will twelve random citizens find you sufficiently unappealing that they are fine with killing you?" That strikes me as a standard that just doesn't even claim to respect the notion of equal protection of the laws. Less appealing people, which as a matter of absolute fact will tend to include non-white people and relatively tough-looking men, are made much more likely to have the state kill them. So I think that by insisting on this very sensible restriction on capital punishment the Court has actually banned any and all forms of the death penalty that can come close to meeting the Equal Protection Clause's standards. In other words, the death penalty ought to be unconstitutional, even if you agree with Gregg.