Death, Race and the Supreme Court
By Michael Masse
Submitted Fall 1999 for Legal History and Criminal Sentencing classes
in fulfillment of substantial writing requirement for graduation
from J. Reuben Clark Law School at BYU in Provo, UT
Table of Contents
DEATH, RACE AND THE SUPREME COURT
Reinstatement of the Death Penalty
Appendix: PERSONAL REFLECTIONS
Latter-day Saint Considerations
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.
—Justice Harry Blackmun, 1994[1]
The argument over the death penalty in the United States is a passionate one. Both detractors and advocates of the death penalty approach the issue with a fervor akin to the abortion debate: strong moral positions about human rights, governmental powers, and justice. But the average American is unlikely to make any connection between the death penalty and racial discrimination. Likewise, most people are probably ignorant of the fact that the Supreme Court’s most important decisions about the use of the death penalty arose because of appeals claiming that capital punishment was being applied in a racially biased way. In fact, the Supreme Court has dealt with the topic on several occasions, ruling on the constitutionality of the death penalty itself and on the allegedly discriminatory effects inherent in the methods of its application. What follows is an overview of the Supreme Court’s major decisions regarding the death penalty: first, a look at one of the first cases to deal with capital punishment in a substantive way; next, the case that outlawed all executions in the United States; then, the case that reinstated the penalty; finally, the case that challenged the death penalty based on empirical evidence of its discrimination against minorities.
DEATH, RACE, AND THE SUPREME COURT
Until relatively recently, the Supreme Court has only considered a small number of cases regarding the constitutionality of the death penalty in general. These few cases defined “the conditions under which the government could deprive citizens of life, including the role of the Constitution in setting criteria for permissible executions.”[2] Most of the earliest Supreme Court cases dealt with procedural issues rather than focusing on the constitutionality of the death penalty itself.[3]
In the 1968 Supreme Court decision United States v. Jackson,the Court held “the Federal Kidnaping [sic] Act unconstitutional because it makes ‘the risk of death’ the price for asserting the right to jury trial, and thereby ‘impairs…free exercise’ of that constitutional right.”[4] The statute authorized “the jury—and only the jury—to return a verdict of death,”[5] thereby allowing a defendant to dodge the death penalty only by forfeiting his right to a jury trial. The right to a jury trial was the primary constitutional issue, not the death penalty. The Court did not address the constitutionality of the death penalty itself until 1971.
The Supreme Court took up jury discretion and how it relates to the death penalty in McGautha v. California,[6]decided on May 3, 1971. Another case, Crampton v. Ohio, was consolidated with McGautha because it dealt with a similar issue.[7] Justice John Harlan wrote for the majority in McGautha, while Justice William Douglas dissented in the Crampton case, and Justice William Brennan dissented in both Crampton and McGautha. In accordance with California procedure in capital cases, McGautha’s case was tried in two stages: a guilt stage and a punishment stage.[8] Crampton, whose guilt and punishment were determined at a single trial, argued that Ohio’s single-trial procedure was unconstitutional. [9] This question was addressed separately from the petitioners’ common claim of unfettered jury discretion in their capital sentences.
Both petitioners claimed that their death sentences were unconstitutional because the juries were not given any sentencing standards for guidance when deciding their fates.[10] Thus, the jury presumably did not understand the value of evidence about the character, history, and mental disposition of each defendant. Gregory Russell summarized the use of mitigating and aggravating factors in criminal sentencing:
Typical procedure in discretionary death penalty cases in the various states permitted the introduction at trial of evidence of both aggravating and mitigating factors or circumstances surrounding the crime. Aggravating factors were those that might reasonably be construed to color the crime as truly horrible. Mitigating circumstances were those that might be construed to paint the defendant in a better light. These notions were important in the development of the death penalty in the United States since they were largely creations peculiar to U.S. law.[11]
The Court reviewed the English common law and its attempts to distinguish between levels of severity in homicides: “This history reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die.”[12] The English eventually developed the doctrine of “malice prepense” [sic] or “malice aforethought,” which “came to be divorced from actual ill will and inferred without more from the act of killing.”[13]
The early colonies in this country rebelled against the common law rule imposing a mandatory death sentence on all convictedmurderers. In 1794, Pennsylvania responded by attempting “to reduce the rigors of the law by abolishing capital punishment except for ‘murder of the first degree,’ defined to include all ‘willful, deliberate and premeditated’ killings, for which the death penalty remained mandatory. Pa. Laws 1794, c. 1777.”[14] This line of reform soon spread to Virginia and thereafter to other states.
Jurors still did not respond well to such stringent mandatory sentencing guidelines, and “on occasion took the law into their own hands in cases which were ‘willful, deliberate, and premeditated’ in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty.”[15] In these cases, the jury would acquit the defendant rather than convict him of the capital offense. This is what is known as jury nullification, where a jury rules to acquit a defendant regardless of the strength of evidence against him.[16]
Instead of combating the problem of jury nullification by further refining the definitions of capital homicides, legislatures chose to adopt “the method of forthrightly granting juries the discretion which they had been exercising in fact.”[17] Beginning in 1837, Tennessee granted juries complete sentencing discretion in capital cases.[18] Other states soon followed Tennessee’s lead, as did the federal government finally in 1897.[19] The Court in McGautha thus demonstrated that “death penalty procedure in the United States, therefore, had inclined toward greater jury discretion, not against it.”[20]
Petitioners seek to avoid the impact of this history by the observation that jury sentencing discretion in capital cases was introduced as a mechanism for dispensing mercy—a means for dealing with the rare case in which the death penalty was thought to be unjustified. Now, they assert, the death penalty is imposed on far fewer than half the defendants found guilty of capital crimes. The state and federal legislatures which provide for jury discretion in capital sentencing have, it is said, implicitly determined that some—indeed, the greater portion—of those guilty of capital crimes should be permitted to live. But having made that determination, petitioners argue, they have stopped short—the legislatures have not only failed to provide a rational basis for distinguishing the one group from the other…but they have failed even to suggest any basis at all. Whatever the merits of providing such a mechanism to take account of the unforeseeable case calling for mercy, as was the original purpose, petitioners contend the mechanism is constitutionally intolerable as a means of selecting the extraordinary cases calling for the death penalty, which is its present‑day function.[21]
The trial court records from both McGautha and Crampton v. Ohio revealed the presence of mitigating and aggravating evidence,[22] as well as unfettered discretion on the part of both juries. But since McGautha’s trial took place in two separate phases, he was able to testify on his own behalf in the penalty phase without the risk of incriminating himself by testifying during the guilt phase of the trial.
But Crampton’s case was not bifurcated in this way; the jury weighed both guilt and penalty in a single trial. This procedural structure limited Crampton’s ability to testify in his own defense regarding sentencing, because in doing so, he would have opened himself up to cross-examination on matters dealing with his guilt. To protect himself from self-incrimination, he would have to forego testifying on his own behalf regarding penalty, as well. Therefore, these two cases “offered a test of the standardless discretion question in both a unitary and a bifurcated proceeding environment.”[23]
The defense’s main argument on appeal was that the lack of standards or guidelines to limit jury discretion was a deprivation of due process protection provided by the Fourteenth Amendment to the Constitution. Justice Harlan’s majority opinion rejected this argument:
In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless ‘boiler‑plate’ or a statement of the obvious that no jury would need.[24]
And, in a damning and foreboding admission by the Court, Justice Harlan conceded: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”[25]
The Supreme Court also rejected Crampton’s other argument, that a two-phase trial that separated the guilt phase from the penalty phase was required by the Constitution. The majority further rejected the notion that since the penalty at issue was death, it should be distinguished from any other sentence in regard to procedural issues.[26]
Justice Hugo Black filed a separate opinion, in which he concurred with “substantially” all of the opinion of the majority.[27] Worthy of note is the fact that Black was the only justice to address the constitutionality of the death penalty itself:
I do not believe that petitioners have been deprived of any other right explicitly or impliedly guaranteed by the other provisions of the Bill of Rights. The Eighth Amendment forbids ‘cruel and unusual punishments.’ In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted.[28]
In his dissent, Justice Douglas criticized the majority for resting its reasoning on history alone, thus stiffening the “wooden” position of the Court:
The truth is, as Mr. Justice Brennan points out in his dissent in these cases, that the wooden position of the Court, reflected in today’s decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights. It is as though a dam had suddenly been placed across the stream of the law on procedural due process, a stream which has grown larger with the passing years. The Court has history on its side—but history alone. Though nations have been killing men for centuries, felony crimes increase. The vestiges of law enshrined today have roots in barbaric procedures. Barbaric procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge. Though torture was used to exact confessions, felonies mounted. Once it was thought that ‘sanity’ was determined by ascertaining whether a person knew the difference between ‘right’ and ‘wrong.’ Once it was a capital offense to steal from the person something ‘above the value of a shilling.’[29]
Justice Douglas felt that the unitary trial procedure in Crampton placed “the weights on the side of man’s sadistic drive.”[30] He offered the exclusion of evidence relevant to the issue of mercy as “conspicuous proof of that lopsided procedure,”[31] adding, “the hazards to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding are multiplied. Whether this procedure would satisfy due process when dealing with lesser offenses may be debated. But with all deference I see no grounds for debate where the stake is life itself.”[32] Justice Douglas therefore found the unitary trial procedure in Crampton to be unconstitutional.
Justice Douglas and Justice Thurgood Marshall joined Justice Brennan’s dissent for the two cases. Brennan framed the issue in a way that foreshadowed the pivotal point in the following year’s Furman v. Georgia decision:
The question that petitioners present for our decision is whether the rule of law, basic to our society and binding upon the States by virtue of the Due Process Clause of the Fourteenth Amendment, is fundamentally inconsistent with capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice.[33]
Brennan also accused the majority of failing to address the central issue of the petitioners’ case:
The Court does not, however, come to grips with that fundamental question. Instead, the Court misapprehends petitioners’ argument and deals with the cases as if petitioners contend that due process requires capital sentencing to be carried out under predetermined standards so precise as to be capable of purely mechanical application, entirely eliminating any vestiges of flexibility or discretion in their use. This misapprehended question is then treated in the context of the Court's assumption that the legislatures of Ohio and California are incompetent to express with clarity the bases upon which they have determined that some persons guilty of some crimes should be killed, while others should live—an assumption that, significantly, finds no support in the arguments made by those States in these cases. With the issue so polarized, the Court is led to conclude that the rule of law and the power of the States to kill are in irreconcilable conflict. This conflict the Court resolves in favor of the States’ power to kill.[34]
Brennan’s lengthy dissent focused on the procedural safeguards necessary to protect due process. Comparing criminal law to administrative law, he concluded that arbitrary and capricious results could be avoided by applying detailed standards and explicit protections to all parties subject to the state action.[35]
The McGautha decision provided a foundation for the Court’s discussion of capital punishment for a number of reasons. One author summarized the significance of McGautha in the following way:
First, the constitutionality of the death penalty per se under the Eighth Amendment was discussed in a direct fashion only by Justice Black. Second, up to and including this decision, the Court rejected all challenges to capital punishment under the Eighth Amendment and the due process clause. Third, Brennan's dissent provided in detail the intellectual foundation for the Court’s action in subsequent cases. Lastly, McGautha represented the majority view that there was no constitutional infirmity in the death penalty, regardless of the broad discretion accorded juries.[36]
Just a short year later in 1972, there was no indication that a major shift in position by the Court was imminent: “There was no apparent wellspring of developments in the federal district courts or circuit courts of appeals to suggest that a change in death penalty jurisprudence was in the offing. This was certainly indicative of a stable body of law.”[37] But with the departure of Justices Black and Harlan (members of the McGautha majority) came the arrival of Justices Lewis Powell and William Rehnquist.
Since President Nixon had appointed these two justices, expectations were that the Court would remain conservative, or perhaps even become more conservative, on an issue like the death penalty. The holding of McGautha seemed safe with the additions of Powell and Rehnquist. However, Furman v. Georgia[38] would provide a doctrinal shift that would shock the nation.
Oral arguments for Furman v. Georgia were heard on January 17, 1972, less than a month after Justices Powell and Rehnquist were sworn in. It was the first case before the Supreme Court to directly challenge the death penalty on the basis of the Eighth Amendment, claiming it violated the protection against cruel and unusual punishment. The following is one author’s summary of the facts of Furman v. Georgia:
William Henry Furman, who suffered from psychotic episodes, broke into William Micke’s house late at night. When Micke came downstairs to see what was making noise, Furman ran from the house. On the back porch, he tripped over an electric cord, and the gun he was carrying went off. The shot went through the closed door and killed Micke.[39]
At the end of the regular October 1971 term, on June 29, 1972, the Supreme Court announced the Furman v. Georgia decision.Two cases had been consolidated for decision with Furman v. Georgia, Jackson v. Georgia[40], and Branch v. Texas.[41] All three cases involved a black defendant convicted of murder by a jury using its unlimited discretion to opt for the death penalty. In each of these cases, the Supreme Court reversed the death sentence. The entire per curiam decision was only a paragraph long, with each of the justices filing separate opinions.[42]
The Court’s decision had repercussions beyond that of the three defendants whose death sentences were reversed:
The Court specifically invalidated the death penalty statutes of Georgia and Texas, and, by implication, virtually every death penalty statute in the United States which permitted the sentencing authority unlimited discretion. The immediate effect was clear. For virtually every defendant sitting on death row, who had been sentenced under a statute that was now unconstitutional, the sentence of death was effectively commuted.[43]
Since each justice filed a separate opinion, the actual holding of the case was difficult to extract. In the McGautha decision, Justices Byron White and Potter Stewart had sided with the majority, which sustained the constitutionality of the death penalty. Yet only one year later they concurred with the Furman result as two of the five-justice majority, and in a sense, reversed their position on the issue of death penalty application.
In the first of five majority opinions, Justice Douglas outlined his opposition to the death penalty, focusing mostly on the prejudicial application of capital punishment against the poor and minorities. Justice Douglas did not find the nature of the penalty cruel and unusual per se, but instead concluded that capital punishment had been administered in a cruel and unusual manner. Justice Douglas wrote: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”[44]
Quoting a recent witness before the Judiciary Committee, Justice Douglas reiterated the connection between arbitrary or prejudicial application of a penalty and its cruel and unusual nature by constitutional standards: “Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. Thevice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is.”[45]
Many of the justices in the majority made an effort to define the phrase “cruel and unusual” in the proper historical context of the Framers of the Constitution. After laying out his own evidence of original intent using the Framers’ own words, Justice Douglas made the following observation:
The words ‘cruel and unusual’ certainly include penalties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is ‘cruel and unusual’ to apply the death penalty—or any other penalty—selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.[46]
In another take on the clause at issue, “cruel and unusual,” Justice Douglas argued that “[t]here is increasing recognition of the fact that the basic theme of equal protection is implicit in ‘cruel and unusual’ punishments. ‘A penalty…should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.’ ”[47] Justice Douglas, quoting again from a Harvard Law Review article, argued: “[t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.”[48]
Justice Douglas demonstrated that solving the arbitrary application of the death penalty is a difficult and complex issue. The problem, being deeply rooted in the justice system, cannot be easily traced to one step in the judicial process. Justice Douglas quoted one author’s summary of the difficulty of determining causation when racial bias is at issue:
Although there may be a host of factors other than race involved in this frequency distribution, something more than chance has operated over the years to produce this racial difference. On the basis of this study it is not possible to indict the judicial and other public processes prior to the death row as responsible for the association between Negroes and higher frequency of executions; nor is it entirely correct to assume that from the time of their appearance on death row Negroes are discriminated against by the Pardon Board. Too many unknown or presently immeasurable factors prevent our making definitive statements about the relationship. Nevertheless, because the Negro/high‑execution association is statistically present, some suspicion of racial discrimination can hardly be avoided. If such a relationship had not appeared, this kind of suspicion could have been allayed; the existence of the relationship, although not ‘proving’ differential bias by the Pardon Boards over the years since 1914, strongly suggests that such bias has existed.[49]
Addressing the racial disparity issue, Justice Douglas cited the following facts from study of capital cases in Texas from 1924 to 1968: “Seventy‑five of the 460 cases involved co-defendants, who, under Texas law, were given separate trials. In several instances where a white and a Negro were co‑defendants, the white was sentenced to life imprisonment or a term of years, and the Negro was given the death penalty.”[50] And further, where rape was the capital offense at issue, “[t]he Negro convicted of rape is far more likely to get the death penalty than a term sentence, whereas whites and Latins are far more likely to get a term sentence than the death penalty.”[51]
Justice Douglas conceded that from the facts disclosed, the Court could not say that the defendants at issue were sentenced to death because they were black.[52] But he also felt that the Court’s task was “not restricted to an effort to divine what motives impelled these death penalties.”[53] Justice Douglas continued:
Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.[54]
A system where justice is only available to the richest and most prominent members of society is quite unlike the American system—or so most Americans would like to believe. However, Justice Douglas compared the fact that the poor and minorities of the United States are the people most at risk of receiving the death penalty to just such a society where justice is for sale:
In a Nation committed to equal protection of the laws there is no permissible ‘caste’ aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient Hindu law a Brahman was exempt from capital punishment, and under that law, generally, in the law books, punishment increased in severity as social status diminished. We have, I fear, taken in practice the same position, partially as a result of making the death penaltydiscretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.[55]
Justice Douglas concluded his thoughtful decision by saying:
[T]hese discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments. Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment.[56]
In Justice Brennan’s analysis, a large portion of the discussion centered on the original intent of the Framers. But he felt as though an attempt to answer the question of the constitutionality of the death penalty as it was then being applied must begin by considering the modern notions of decency held by the nation as a whole:
Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know ‘that the words of the (Clause) are not precise, and that their scope is not static.’ We know, therefore, that the Clause ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ [Quoting Trop v. Dulles, 356 U.S. 86, 100-101 (1957).] That knowledge, of course, is but the beginning of the inquiry.[57]
Justice Brennan relied on Trop v. Dulles to set forth the first of four essential principles that the death penalty violated—the respect for human dignity:
In Trop v. Dulles (citation omitted) it was said that ‘[t]he question is whether (a) penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the (Clause).’ It was also said that a challenged punishment must be examined ‘in light of the basic prohibition against inhuman treatment’ embodied in the Clause. It was said, finally, that: ‘The basic concept underlying the (Clause) is nothing less than the dignity of man. While the State has the power to punish, the (Clause) stands to assure that this power be exercised within the limits of civilized standards.’ At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it does not comport with human dignity.[58]
In deciding whether a penalty was an affront to human dignity, Justice Brennan mentioned that the infliction of pain can be a factor,[59] but not necessarily a determinative one: “The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. The infliction of an extremely severe punishment will often entail physical suffering.”[60] But Justice Brennan found more in question than just pain when determining whether a punishment violates human dignity:
More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, ‘punishments which inflict torture, such as the rack, the thumb‑screw, the iron boot, the stretching of limbs, and the like,’ are, of course, ‘attended with acute pain and suffering.’ O'Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L. Ed. 450 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treatmembers of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.[61]
Justice Brennan’s second essential principle in determining whether a punishment violates the “cruel and unusual” clause of the Eighth Amendment was related to its application. He connected the first principle, relating to human dignity, to the second principle, arbitrary application, in the following manner:
In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words 'cruel and unusual punishments' imply condemnation of the arbitrary infliction of severe punishments. And, as we now know, the English history of the Clause reveals a particular concern with the establishment of a safeguard against arbitrary punishments.[62]
Justice Brennan reasoned that if the United States population generally accepted a penalty, then it would be widely applied. However, if the penalty were rarely used, it would be indicative of a penalty that was neither widely accepted nor evenly applied. So, the “more significant function of the Clause, therefore, is to protect against the danger of their arbitrary infliction.”[63]
The third principle on Justice Brennan’s list was the acceptance of a penalty by society as a whole. The lack of acceptance of the death penalty by society is inferred from the reluctance on society’s part to use the punishment.[64] He cited the trend in history away from the use of the death penalty as indicative of the American conscience: “the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare. The evolution of this punishment evidences, not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience.”[65] This reluctance is a visible form of rejection, since “[r]ejection by society, of course, is a strong indication that a severe punishment does not comport with human dignity.”[66] Justice Brennan also sought other objective evidence that society had rejected the death penalty:
The question under this principle, then, is whether there are objective indicators from which a court can conclude that contemporary society considers a severe punishment unacceptable. Accordingly, the judicial task is to review the history of a challenged punishment and to examine society's present practiceswith respect to its use. Legislative authorization, of course, does not establish acceptance. The acceptability of a severe punishment is measured, not by its availability, for it might become so offensive to society as never to be inflicted, but by its use.[67]
The last principle Justice Brennan set forth was whether the penalty is excessive: “A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted…the punishment inflicted is unnecessary and therefore excessive.”[68] The issue here is not whether the punishment is proportional—no one would argue that taking the life of one who has taken a life is a disproportionate sentence. The question, rather, is whether there is a lesser punishment available to achieve the same punitive ends, and whether the penalty is excessive in light of the intended penal purpose.[69]
States have argued that no other punishment, including long-term imprisonment, could have the desired deterrent effect that the death penalty supposedly has. Justice Brennan countered this by pointing out that since death sentences are rarely imposed, and when they are, it is usually painfully slow process, the deterrent effect is nullified:
A rational person contemplating a murder or rape is confronted, not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future. The risk of death is remote and improbable; in contrast, the risk of long‑term imprisonment is near and great. In short, whatever the speculative validity of the assumption that the threat of death is a superior deterrent, there is no reason to believe that as currently administered the punishment of death is necessary to deter the commission of capital crimes. Whatever might be the case were all or substantially all eligible criminals quickly put to death, unverifiable possibilities are an insufficient basisupon which to conclude that the threat of death today has any greater deterrent efficacy than the threat of imprisonment.[70]
Another argument often made for the death penalty is that it is necessary for the protection of society.[71] Justice Brennan summarized the argument as follows:
The infliction of death, the States urge, serves to manifest the community's outrage at the commission of the crime. It is, they say, a concrete public expression of moral indignation that inculcates respect for the law and helps assure a more peaceful community. Moreover, we are told, not only does the punishment of death exert this widespread moralizing influence upon community values, it also satisfies the popular demand for grievous condemnation of abhorrent crimes and thus prevents disorder, lynching, and attempts by private citizens to take the law into their own hands.[72]
The concern here is “not whether death serves these supposed purposes of punishment, but whether death serves them more effectively than imprisonment.”[73] Justice Brennan challenged the assumption that death has the moralizing effect on communities that the states desire:
If capital crimes require the punishment of death in order to provide moral reinforcement for the basic values of the community, those values can only be undermined when death is so rarely inflicted upon the criminals who commit the crimes. Furthermore, it is certainly doubtful that the infliction of death by the State does in fact strengthen the community's moral code; if the deliberate extinguishment of human life has any effect at all, it more likely tends to lower our respect for life and brutalize our values. That, after all, is why we no longer carry out public executions. In any event, this claim simply means that one purpose of punishment is to indicate social disapproval of crime. To serve that purpose our laws distribute punishments according to the gravity of crimes and punish more severely the crimes society regards as more serious. That purpose cannot justify any particular punishment as the upper limit of severity.[74]
Vengeance is the last penal purpose that Justice Brennan addressed: “Shortly stated, retribution in this context means that criminals are put to death because they deserve it.”[75] Justice Brennan eloquently countered the idea that retribution serves any public good:
The claim must be that for capital crimes death alone comports with society's notion of proper punishment. As administered today, however, the punishment of death cannot be justified as a necessary means of exacting retribution from criminals. When the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a randomfew. As the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them.[76]
Justice Brennan acknowledged that no state would likely inflict a punishment that openly offended any of his four principles.[77] But he reiterated his four principles and the test they represent to demonstrate the cumulative effect the principles have when considered together:
If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.[78]
In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.[79]
Justice Stewart’s decision was much shorter than Justice Brennan’s, but relied on many of the same arguments. The Harvard Law Review offered the following helpful summary of Justice Stewart’s decision:
Justice Stewart, while agreeing that the discretionary nature of the death penalty statutes before the Court rendered them cruel and unusual punishments, did not rely on a notion of equal protection for this conclusion. Rather, he argued that since the legislature did not call for a mandatory death sentence, it had not made the judgment that death was a “necessary” punishment for the crime. The death sentences in these cases were therefore “cruel” in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures [had] determined to be necessary. He also felt that death sentences left to the discretion of a judge or jury were imposed so infrequently that they were “unusual.” Moreover, he argued in the alternative that such sentences were “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” concluding that “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”[80]
Similar to Justice Stewart’s decision, Justice White’s decision was also brief and concise. Justice White focused on the fact that the death penalty was rarely imposed. He cited the fact that since the punishment was used so sparingly, “even for the most atrocious crimes,” that “there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” [81] Justice White had this to say regarding the “cruel and unusual” clause:
The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.[82]
In an approach similar to Justice Brennan’s, Justice Marshall relied on a principle from Chief Justice Earl Warren’s opinion in Trop v. Dulles. According to Warren, it is “from the evolving standards of decency that mark the progress of a maturing society”[83] that the “cruel and unusual punishment” clause must acquire its meaning. As a result, Justice Marshall could basically ignore precedent, since it would not reflect the fully evolved standards of the present society.[84] Thus, Justice Marshall considered Furman as a case of first impression. The Harvard Law Review summarized the four reasons Justice Marshall gives for denouncing the death penalty as cruel and unusual punishment:
Justice Marshall wrote the opinion which most unequivocally condemned capital punishment. Placing no reliance on the discretionary nature of the sentences, he argued that “a punishment may be deemed cruel and unusual for any one of four distinct reasons”: (1) if the punishment involves “so much physical pain and suffering that civilized people cannot tolerate [it]”; (2) if the punishment has previously been unknown for a particular offense; (3) if the punishment “is excessive and serves no valid legislative purpose”; or (4) if popular sentiment abhors the punishment. Assuming that capital punishment did not involve severe physical pain and recognizing that it was not a novel punishment for rape and murder, Justice Marshall found both that it was excessive and unnecessary and that it offended contemporary moral values.[85]
Justices Harry Blackmun, Powell, and Rehnquist joined the dissent in Furman, led by Chief Justice Warren Burger. Chief Justice Burger began by noting: “At the outset it is important to note that only two members of the Court, Mr. Justice Brennan and Mr. Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances.”[86] He objected to what he characterized as the Court behaving like a legislature. Burger did give a nod to the majority by stating: “If we were possessed of legislative power, I would either join with Mr. Justice Brennan and Mr. Justice Marshall or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes.”[87] The chief justice spent the bulk of the dissent dealing with the majority’s interpretation of the Eighth Amendment.
Since Furman v. Georgia was such a drastic departure by the Supreme Court with far-reaching ramifications for the states, many scholars have weighed in on the meaning of Furman from a historical perspective. Gregory Russell points out the significance of the votes of Justices Stewart and White, considering their positions just a year before the Furman decision:
The most significant change on the Court from the McGautha opinion to the Furman decision was the transformation of Justices Stewart and White, whose positions clearly made them “swing” votes. It was possible that if their objections could be satisfied, subsequent statutes might well pass scrutiny, thereby allowing reinstitution of the death penalty. Stewart and White objected to the lack of clear standards available to guide the sentencing authority in making a selection of death. Coupled with the infrequent use of the penalty, this insured that the sentences rendered were disproportionate to the crime committed. Both justices also found that if there were standards, then judicial review must be available in order to guarantee that the standards were properly applied. States responded almost immediately to the concerns of Stewart and White by passing new
statutes which provided the sentencing authority (whether judges or juries) with specific guidelines for the imposition of the death penalty.[88]
Louis Palmer, a legal commentator, pointed out how the narrow holding of Furman allowed for states to react in a way that would preserve their right to use capital punishment, assuming their reconfigured statutes would pass constitutional muster:
The Furman decision put an end to the death penalty in the nation. In doing so, the opinion only held that the arbitrary and capricious method by which all capital punishment jurisdictions imposed the death penalty violated the Cruel and Unusual Punishment Clause. As a result of this narrow holding, the door was left open for a rebirth of capital punishment if a method could be found that would impose death in a constitutionally fair and impartial manner.[89]
Several contemporary remarks about the impact of Furman were consolidated by another work. These quotes show the optimism felt by those behind the abolition movement shortly after the decision was announced:
Commentators viewed the decision as a milestone in the abolition movement. “At one stroke” said Hugo Bedau, “this ruling in effect abolished all death penalties throughout the nation.” “By implication,” wrote Daniel Polsby, “most or all extant statutes in American jurisdictions that prescribe the death penalty are unconstitutional.” Jack Greenberg of the Legal Defense Fund issued a statement asserting that “there will no longer be any more capital punishment in the United States.” Philip Kurland in his review of the Supreme Court’s 1971 term wrote: “[O]ne role of the Constitution is to help the nation to become ‘more civilized.’ A society with the aspirations that ours so often asserts cannot consistently with its goals, coldly and deliberately take the life of any human being no matter how reprehensible his past behavior…. In the Furman v. Georgia decision the inevitable came to pass.” (Citations omitted)[90]
Since Furman’s decision was actually several small opinions, it left many legal vagaries in the air, waiting for clarification.[91] Raymond Paternoster set forth the aspects of Furman that did seem at least somewhat certain:
Whatever the legal ambiguity of the Furman decision, three things were clear. First, Furman said nothing about the constitutionality of the death penalty itself, holding only that capital punishment, as then administered, was unconstitutional. Second, the approximately 600 occupants of death rows across the United States in 1972 would not be executed. The moratorium on executions begun in 1967 would continue into the early 1970s. Third, it was also clear that, although provided with little guidance from the decision itself, if states hoped to retain capital punishment, they would have to modify their capital statutes to bring them in compliance with what they might understand to be Furman’s ambiguous requirements.[92]
The death penalty returned to the Supreme Court four years later in another Georgia case, Gregg v. Georgia.[93] The analysis and objections of Justices Stewart and White were at the heart of the decision. The Georgia legislature modified their capital punishment statutes in an effort to satisfy the objections of Stewart and White regarding inadequate guidance for those deciding sentences, as well as unfettered discretion for juries and judges in deciding death penalty cases.
In addition to considering jury discretion, the decision of the court also addresses proportionality and the evolving standards of decency evoked in Furman. One author summarized the Gregg v. Georgia decision as follows:
In the lead case of Gregg v. Georgia, Justice Paul Stewart, joined by Justices Stevens…and Powell, announced the judgment of the Court and found the death penalty did not, in all circumstances, violate the Constitution. Justice Stewart found that the Eighth Amendment was not static. Adopting the position of Marshall, without accepting Marshall’s use of the rule, Stewart argued that the Eighth Amendment obtained its meaning from the evolving standards of decency that marked the progress of a maturing society. While a penalty could offend the dignity of man or be excessive either as to form or severity, public perceptions were important and the legislatures were not required to pick the least severe penalty. Stewart noted that thirty-five states had, since Furman, reenacted the death penalty in various forms. This action clearly gave evidence of public support. Lastly, he held that the death penalty could not be considered disproportionate for the crime of murder.
In the specific case of the newly adopted Georgia statute, the jury, as sentencing authority, was required to hear both aggravating and mitigating evidence in a bifurcated proceeding. Here, the penalty was separately considered after a finding of guilt. Moreover, the jury was required by statute to make specific findings of certain permissible, aggravating circumstances in order to justify the death penalty. This process was assumed to insure consideration of the circumstances of the crime and the character of the defendant because it required jurors to listen to evidence about such matters. To insure proportionality, a provision was included for a mandatory appeal, and the state supreme court was required to compare the penalty to other similar cases. In the assessment of these three justices, there was no evidence that this system provided unbridled discretion or that the statutes provided vague instructions to the jury.[94]
Justice Marshall in his dissent lamented the fact that thirty-six states had reinstated the death penalty, but insisted that a truly informed public would not have done so. And reiterating his Furman stand, he asserted the death penalty was unnecessary to achieving the legislative purpose, and was thus excessive.[95]
In 1987, the Supreme Court decided McCleskey v. Kemp,[96]a case that dealt primarily with the issue of racial bias in the application of the death penalty. Since Furman,the Supreme Court had fine-tuned its position on the death penalty and outlined several guiding principles regarding its application. But the Court had never considered head-on the issue of racial discrimination and the death penalty. Not since Furman itself had the topic gotten much discussion. Justice Powell, writing for the majority in McCleskey, summarized the death penalty cases since Furman and the limitations and criteria they had placed on the imposition of capital punishment:
In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionateto a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.[97]
In McCleskey, a black defendant had killed a white police officer in the course of a robbery.[98] According to the reworked Georgia death penalty, two aggravating factors were available to a jury to justify capital punishment: a peace officer had been killed in the course of his duties, and it had occurred during the commission of a felony. The State offered evidence regarding the mitigating factors, but “McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges.”[99]
The defendant raised eighteen claims in his defense, but his primary defense was that “the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”[100] The statute as issue was the same statute the Court had approved in Gregg v. Georgia. The defendant, rather than attacking the language of the statute itself, used empirical evidence from a statistical study to demonstrate that the statute was not protecting from discriminatory use of the death penalty.
Professor David C. Baldus supplied the statistical study used by the defendant. The study examined over 2,000 murder cases that occurred in Georgia in the 1970s. It pointed out significant disparity in the treatment of defendants based on their race, and even more noticeably, based on the race of their victim. The Court summarized Baldus’ findings as follows:
The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants. Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.[101]
To further protect the integrity of his study, Professor Baldus “subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds.”[102]
The majority in McCleskey were not moved by the results of the Baldus study, but dismissed it as indeterminate in the case of the defendant. Rather than allowing the Baldus study to infer the discriminatory effect of the Georgia statute, they criticized the defendant’s lack of evidence of discriminatory intent:
[T]o prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racialconsiderations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.[103]
The Court majority did its best to downplay the damning results of Baldus’ study, as if to say, “Even if everything you say is true, there is still not a problem worth addressing.” A small sampling of statements from their decision reveals their efforts to minimize the significance of the study:
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is “a far cry from the major systemic defects identified in Furman,” Pulley v. Harris, 465 U.S., at 54, 104 S.Ct., at 881.[104]
As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). See Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978). Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’ ” Zant v. Stephens, 462 U.S. 862, 884, 103 S.Ct. 2733, 2746, 77 L.Ed.2d 235 (1983) (quoting Lockett v. Ohio, 438 U.S., at 605, 98 S.Ct., at 2965 (plurality opinion of Burger, C.J.)).[105]
Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Singer v. United States, supra, 380 U.S., at 35, 85 S.Ct., at 790. Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.[106]
Another approach the majority took with dealing with the Baldus study was to say, “Since we cannot fix it, it is not broken.” In other words, since the implications of the Baldus study are so frightening, the Court simply cannot deal with them. Two of the most revealing quotes from the majority opinion expressed thoughts along these lines. First, “It is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.”[107] And second, “McCleskey’s claim, taken to its logical conclusion,throws into serious question the principles that underlie our entire criminal justice system.”[108] The Court used a typical “slippery slope” argument to discount the wisdom of acknowledging the Baldus results:
Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that hissentencerests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, andeven to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys, or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could—at least in theory—be based upon any arbitrary variable, such as the defendant's facialcharacteristics, or the physical attractiveness of the defendant or the victim, that some statisticalstudy indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.[109]
So, in essence, the Court said, “If we try to fix this, then we’ll be expected to fix everything, and we simply cannot do that. Thank you, Mr. McCleskey, for bringing this problem to our attention, but we simply cannot help you.” This characterization of the majority’s opinion is much like the dissent’s interpretation of the majority holding.
In the dissent, Justices Brennan and Marshall stick to the anti-death penalty position, but broaden their opposition enough to include Justices Blackmun and Stevens. Using a quote from another case, the dissent bewails the fact that the death penalty is in use at all: “Nothing could convey more powerfully the intractable reality of the death penalty: ‘that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether.’ ” [Quoting Godfrey v. Georgia, 446 U.S. 420, 442, 100 S.Ct. 1759, 1772, 64 L.Ed.2d 398 (1980) (MARSHALL, J., concurring in judgment)].[110]
One of the most compelling aspects of the dissent was their use of a hypothetical narrative scenario between McCleskey and his defense attorneys to illustrate the findings of the Baldus study.[111] In this scenario, McCleskey seeks the opinion of counsel regarding his odds of receiving the death penalty. The candid reply reveals the sad condition of a black defendant in Georgia:
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.[112]
The dissent criticized the hypocrisy of the majority’s opinion, because they required McCleskey to demonstrate that his judicial proceedings had been infected with racial prejudice. He had to specifically prove this was true for his individual case, rather than merely demonstrate a pattern of discrimination within the system as a whole. The Court has rarely if ever held a defendant to such a high standard of proof in racial issues. The dissent used the example of a recent Supreme Court case, Godfrey v. Georgia,[113] to illustrate their point:
In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudiceor other impermissible influences might have infected the sentencing decision. In vacating the sentence, we did not ask whether it was likely that Godfrey's own sentence reflected the operation of irrational considerations. Nor did we demand a demonstration that such considerations had actually entered into other sentencing decisions involving heinous crimes…. Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey’s claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.[114]
The dissent concludes by denouncing the continuing discrimination present in the criminal justice system and the Court’s unwillingness to listen to the voice of reason, regardless of the repercussions of these voices. The dissent warned of the criticisms they felt were certain to follow such a decision, and, in effect, apologized to the minority community of defendants for the message the Court was sending them about their worth:
Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present…. The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey's evidencewill not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today's decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.[115]
Tracing the Supreme Court’s dealings with race issues and the death penalty is an exercise in hope followed by cynicism. The brave holding of Furman showed that the Court was willing to attempt reform in the most drastic way, even if its only immediately visible result was to protect some of society’s most undesirables: the residents of death row. Yet, the Furman backlash persuaded the Court to renege and place inmates again in harm’s way. And finally, the McCleskey holding revealed the Court’s unwillingness to admit it when the solution they prescribed fell terribly short of the goal of eliminating unfair application of the death penalty. “Since we can not fix it, there is not a problem,” they have said, in effect. This is a major setback in the battle against discrimination, when the nation’s highest court refuses to acknowledge the severity of the problem. They refused to take the first step in what would inevitably be a long road to reforming the criminal justice system. True, the Supreme Court will never solve every race-related problem in the judicial system, but they could have at least taken the danger of wrongful death out of the equation until things it could be resolved in a way that treats minorities fairly.
In comparison, when racially unfair practices were infecting the school systems of our nation, the Court was willing to make several elaborate administrative decisions that micro-managed the schools’ admission policies and district boundaries. But that was to help children. Apparently the Court is unwilling to show the same courtesy to convicted criminals awaiting execution. If the highest court in the land will not address the problem, who will?
Even Congress seems unable to lend a hand to those dying because of their race. In 1994, the Racial Justice Act was introduced “to allow condemned prisoners to appeal their death sentences using evidence of past discriminatory sentencing—the kind of evidence that failed to save McCleskey.”[116] The bill passed in the House 217–212, but was then killed in the Senate. It is now left to the states to police themselves in this regard. States like Georgia are probably not too willing to admit the pervasive nature of the problem. Until they are, minority defendants will pray for the system to reveal its prejudice in their individual cases, since, according to the McCleskey holding, this is their only hope.
Appendix: PERSONAL REFLECTIONS
Certainly Reverend Jackson has a strong position on racism and the death penalty, and with good reason. But he does not limit his opposition to the death penalty on this basis alone; he attacks it on many moral and pragmatic grounds. He cites statistics about inmates being put to death who were later cleared of wrongdoing by the discovery of exculpatory evidence,[117] and a study about death row inmates who were later released when their convictions were overturned.[118] An innocent inmate who is imprisoned can be released when the mistake is discovered. When an innocent inmate is killed, the error is irreversible. This tragedy is made worse when innocent people are executed merely because they could not afford adequate counsel.[119]
While many politicians argue that we have become a color-blind society, the Rodney King and O.J. Simpson trials have placed race and racial justice front and center in the American political debate. In terms of justice, we are not color-blind. Many white police officers behave differently than most black police officers and certainly see things through a different set of lenses. Most white jurors see facts differently than do black jurors. The nationwide debate following the Simpson verdict verified this—blacks and white view the criminal justice system from two different vantage points. Whites see it from the top down. Blacks see it from the bottom up. Whites see it as working. Blacks see it as stacked against them, working against their interests, oppressing them. Whites see the criminal justice system as essentially color-blind. Blacks see it as essentially discriminatory toward people of color.
One conclusion that we can all draw from the Simpson case—and I think more and more people are recognizing this—is that a wealthy defendant gets more justice than a poor one. And that is one of the most significant problems with the death penalty. Those who are sentenced to death usually have had mediocre representation—usually one overworked and underpaid lawyer from the public defender’s office, not a dream team of lawyers, jury consultants, and the best expert witnesses money can buy. High-priced lawyers are not clustering around indigent defendants, jostling each other to get another case from a client who can’t pay. Very often, lawyers have to be cajoled into taking these cases for a pittance that guarantees they will provide minimal defense.[120]
On the pragmatic, political side of the issue is the argument for the death penalty as a means of deterrence. Reverend Jackson speaks to this point succinctly: no study has ever proved any relationship between use of the death penalty and the deterrence of crime.[121]
Another aspect, the moral issue, is a tough one for me. I know that Latter-day Saints in general seem to favor the death penalty, as evidenced by its legality in Utah.[122] Many conservatives favor it as well, as part of a “get tough on crime” philosophy. Yet other religious groups have come out against the death penalty, claiming that we should not be deciding who lives and who dies. Many Christians also feel it negates the power of Christ’s forgiveness when a repentant soul is killed after having been “born again.”
The main argument that Reverend Jackson makes which persuades me is a moral one: God has always reserved the right to take vengeance for himself.[123] Certainly the government is sanctioned by heaven to protect its citizens by fighting crime and punishing wrongdoers. But when the issue is life, we have left the sphere of mortal authority. It is simple: God is the giver of life—the only giver of life. What right do we have to take life away from another person under any circumstances?
Another interesting theory that Reverend Jackson puts forth also deals with the sanctity of human life. If the government sees fit to take away life in certain cases, it is contributing to the culture of violence in this country. The reverence we all have for human life is cheapened when we condone the killing of a human for any reason. If we are trying to teach that killing is wrong and repulsive—indeed, the ultimate crime—how is the perpetuation of the cycle of violence going to help anyone believe this?[124]
Reverend Jackson laments that America is setting a poor example of human rights for the rest of the world by continuing to use the death penalty: “Of the Western democracies, the United States stands alone in using, let alone increasing, the use of the death penalty as a means of punishment. This bucks the trend of civilization, which for centuries has been decreasing the use of capital punishment.”[125] Indeed, we have endangered our moral authority to condemn the human rights violations of other nations through our hypocrisy.[126]
Lastly, many people feel the death penalty is necessary to protect society from repeat offenders: “If we kill them, they cannot hurt anyone else ever again.” While this is admittedly true, it is not the only solution. Much of the support for the death penalty is mistakenly based on the helpless feeling that there is no alternative that will protect communities from dangerous predators. Many Americans fear that convicted killers are often set free after serving only a small portion of their life sentence, but the facts simply do not support this apprehension. Judges rarely hesitate to condemn killers to life imprisonment without the possibility of parole, assuring that they will never see freedom again. And in cases where parole occurs, a typical murder sentence is still 25 years, on average.[127] This kind of sentencing accomplishes the same desired safety for society, but without having to resort to more violence in the name of fighting violence.
A majority of Americans approve of the death penalty for murderers. Of the six religious groups shown in [the table], Latter-day Saints show the greatest support for the death penalty while “others” give the least support. Eighty-nine percent of Latter-day Saints favor the death penalty compared to 67 percent of Protestants, 71 percent of Catholics, and 60 percent of “others.”[128]
|
|
Protestant |
Catholic |
Jew |
Other |
None |
|
|
Abortion if… |
88 |
83 |
97 |
88 |
95 |
88 |
|
Endangered health |
||||||
|
Rape |
79 |
75 |
96 |
81 |
91 |
71 |
|
Defective fetus |
79 |
74 |
96 |
80 |
91 |
67 |
|
Poor |
45 |
40 |
85 |
61 |
74 |
24 |
|
Unmarried |
41 |
37 |
85 |
53 |
71 |
24 |
|
Do not desire child |
40 |
36 |
81 |