The Court after Scalia: Will a liberal appointment to the Court matter in decisions of life and death?

Sarah E. Turberville is the director of Justice Programs at The Constitution Project.

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it.

Hillary Clinton, in response to a question about her view on the death penalty, Democratic presidential debate, February 4, 2016

Secretary Clinton’s limited and caveated support of the death penalty – and that of many federal candidates for office – has always been anathema to progressives (and, increasingly, to conservatives). Capital punishment in America played a pivotal role in our country’s history of racial control and violence and those who continue to support it ignore that it is a relic of this shameful past. And for many, there could be no more extraordinary violation of human rights than the government’s intentional taking of a life. The Democratic candidate for president continues to assert her deep concern for the manner in which the states carry out the death penalty. But she also professes her view that it should still be held in reserve in the federal system – particularly to prosecute terrorism – despite the fact that only one person is on federal death row for terrorism offenses and most of the same problems that plague the states (racial bias, arbitrariness and bad lawyering) also pervade the federal system.

In stark contrast to the views espoused by Secretary Clinton – and, we might predict, her preferred candidates to fill the vacancy on the Supreme Court – the rest of the country (and the Democratic Party) has been abandoning capital punishment in law and by practice at a rapid pace. The rarity of executions and death sentences, and the country’s general preference for a punishment other than the death penalty for murder, holds for blue and red states alike. Just last year, Republicans spearheaded efforts to repeal the death penalty in Nebraska, Kentucky, and Utah. And for a number of years, growing cadres of fiscal, social and religious conservatives have come to oppose capital punishment for a variety of reasons, including its extraordinary cost and the fact that an alternative – life imprisonment without parole – serves the same penological function without the irreversible risk of killing an innocent person.

New documentation of the punishment’s decline arrives each day. Seven states repealed the death penalty in the last decade. Four states are currently under a suspension of executions ordered by the governor. Executions, where they occur, are rare. Last year, only six states executed prisoners – and over eighty percent of those took place in Texas, Missouri and Georgia – making it the lowest number of executions (twenty-eight) in twenty years. And while thirty states and the federal government retain the death penalty on the books, a majority of these have not had an execution in ten years or more. Perhaps most telling, death sentences have reached a forty-year low. Put another way, death sentences are down 600% from a high of 315 imposed in 1996 to just forty-nine imposed in 2015. Texas – the historical “capital” of capital punishment in America – typically had thirty or more death sentences imposed each year in the 1990s. Last year, there were two death sentences handed down in the Lone Star State. While sixty to seventy percent of Americans lived in states that carried out the death penalty in the 1990s, now only about a third live in states that have carried out an execution in the last three years.

Where the death penalty persists, researchers are beginning to understand why – and the answers have little to do with the heinousness of the offense or the moral culpability of the offender. There are just sixteen counties (out of over three thousand in the United States) where five or more death sentences have been imposed between 2010-2015. A new report issued last month reveals that capital punishment continues to flourish in this tiny fraction (or fraction of a fraction) of counties because these jurisdictions share three common characteristics: a history of racial exclusion, poor representation for the accused, and overzealous prosecutors who pursue the punishment at all costs. As a result, these jurisdictions have a disproportionate share of wrongful convictions and excessive punishment of young offenders, people who are mentally disabled, and those who have experienced great trauma in their lives. The influence of such extra-legal factors is a sign that the death penalty continues to be inflicted in an arbitrary and capricious manner.

Despite the country’s inexorable move away from the death penalty, as well as Justice Antonin Scalia’s public musings that he would not be surprised if the Court were to rule the death penalty unconstitutional, the Court has recently declined certiorari on two cases raising this exact issue – an indication that there are not yet five votes. A “safe” appointee – like Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit and the former prosecutor who sought the execution of Timothy McVeigh – is unlikely, at least in short order, to produce the needed majority to strike down the system of which he was a critical part. It has only been with the passage of time that many Justices have ultimately concluded that the death penalty cannot sustain the irreconcilable constitutional imperatives of equal justice and individualized sentencing.

Such an appointee will, however, likely inoculate the Court from wholesale reconsideration of Eighth Amendment jurisprudence, as was suggested by Justice Scalia in his concurring opinion in Glossip v. Gross: “I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop [v. Dulles], should be overruled.” Such an appointment may also invite new challenges or revisit old ones on the administration of capital punishment. It is difficult, for example, to square the execution of a person who was suffering from severe mental illness at the time he committed a capital offense, while exempting a person who has an intellectual disability – even though the execution of either prisoner would not measurably support the penological functions of the death penalty concerning deterrence or retribution. Given the country’s increasing opposition to capital punishment, particularly among people of color and within various religious communities, new questions about excluding these jurors from capital cases because they are not “death qualified” may arise. Or the Court may examine systemic deprivations of the right to effective counsel in capital jurisdictions, or a host of other issues such as the conditions under which the vast majority of death row inmates in the country reside.

In short, the country’s four-decade-long experiment with capital punishment presents endless procedural and constitutional questions for the Court to sort out – the accumulation of which has led several Republican-appointed Supreme Court Justices, after decades on the Court, to conclude that there is simply no way to construct and administer a fair, accurate and rational death penalty system. “From this day forward, I no longer shall tinker with the machinery of death,” Justice Harry Blackmun famously declared in 1994. At that time, fifty-four people had been exonerated from death row because of evidence of innocence. That number is now at 156. The length of time between conviction and execution has since grown from about eight years (in 1990) to an average of eighteen years (in 2015). Our system is as inaccurate and irrational as ever.

Justice Scalia’s takedown of the “abolition lobby” in his concurrency in Glossip last summer would leave a casual reader wondering what all the fuss is about given the justice system’s supposedly demanding and thorough review of capital cases (assertions with which many of those familiar with the system would vehemently disagree). But Justice Scalia did get one thing absolutely right: “[F]ederal judges live in a world apart from the vast majority of Americans,” and they “are not confronted with the threat of violence that is ever present in many Americans’ everyday lives.” Add to that the reality concerning the types of cases and circumstances in which the death penalty is pursued that elude the record. And on the highest Court in the land, there is no voice, or voices, at conference to disabuse the Justices of their incorrect notions concerning the fairness and rigor of the conduct of prosecutors, defense lawyers, and judges in capital jurisdictions.

In reality, the pendulum has swung too far, giving unwarranted deference to state court rulings, providing prosecutors with absolute immunity, and foreclosing relief even in the face of clear systemic, racial bias. And as it presently stands, nearly all of the current members of the Court served as (mostly federal) prosecutors in some fashion. Only Justice Sonia Sotomayor ever litigated state criminal cases (as a prosecutor). There is a noticeable absence of a countervailing force on the Court. This is the absence of a lawyer who has sat with a client before his execution. Or who has observed the lapping of a confederate flag in front of the courthouse where her black client is tried before an all-white jury. Or who fought a recalcitrant prosecutor for decades to release his obviously innocent client from death row. The appointment of such a person to the Supreme Court would be a liberal – or rather liberating – development indeed.