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The Supreme Court and capital punishment: a new hands-off approach.

MUCH OF THE constitutional debate surrounding the death penalty concerns its compatibility with the Eighth Amendment's prohibition against the imposition of cruel and unusual punishment. Justice William Brennan, Jr., argued eloquently that the sentence of death offends both the dignity of the prisoner and the evolving standards of decency which reflect the advance of a maturing society. That position has not prevailed and, given the present composition of the Supreme Court, it is unlikely that it will in the foreseeable future.

Newer members, such as Justice Antonin Scalia, have a more restricted view of the Court's role in our society and fiercely resist any steps that would make the justices "philosopher-kings," rather than "judges of the law." The debate over whether the death penalty is inherently unjust, or offends civilized standards, undoubtedly will continue. Nevertheless, concentration upon the morality of capital punishment, however important in itself, can detract attention from less divisive issues of constitutional importance.

The justices of the Supreme Court are not Platonic guardians, but they all must recognize they have a responsibility to assure that no condemned prisoner be deprived of his life without due process of law. The distinction is important because it will be concerns over the administration of justice, rather than ideal standards, which eventually may lead the Court to decide that the death penalty is forbidden by the Constitution. To understand why this is so requires a brief historical review.

In Furman v. Georgia (1972), the Supreme Court held that capital punishment was being imposed "freakishly" and invalidated all state death penalty statutes then in force. In Gregg v. Georgia (1976), it held that the death penalty was not unconstitutional in all circumstances. The judgment of the Court and the opinion of Justice Potter Stewart acknowledged that the death penalty can serve the social purposes of deterrence and retribution. The judgment also affirmed the Court's belief that sentencing discretion adequately could be guided to avoid the dangers of arbitrary and capricious actions, which had led to the Furman decision.

In the years immediately following Gregg, the Court strongly asserted its authority as the nation's unique institution ultimately responsible for the fair administration of capital justice. Between 1976 and 1982, it decided 15 capital cases on the merits. In all but one, it reversed, and vacated, the death sentence as imposed. Its decisions included a holding that punishment of death was a disproportionate penalty for rape (Coker v. Georgia), mandatory death sentences for murder were unconstitutional (Woodson v. North Carolina), and there must be a meaningful opportunity for the sentencing authority to consider mitigating factors relative either to the crime or the character of the individual offender (Lockett v. Ohio). In this same period, the Court also decided that vague instructions to a jury were constitutionally intolerable since they did not provide sufficient assurance that a death sentence would not be imposed wantonly Codfrey v. Georgia) and invalidated restrictions on the defendant's access to information made available to the sentencing power (Gardner v. Florida).

In May, 1979, the Supreme Court rejected a stay of execution application of John Spenkelink. Some commentators insist that, from that point on, the Court has been turning away from the task of carefully reviewing the imposition of the death penalty. In 1983, this concern was expressed by Justice Thurgood Marshall. Writing in dissent in Zant v. Stephens, he not only reiterated his traditional position that the death penalty is unconstitutional in all circumstances, he also chided the Court for not consistently applying its earlier post-Gregg decisions.

While there is reason to believe the Court has lessened the rigors of its supervision over the imposition of the death penalty, it is difficult to determine exactly why this has happened. As the balance shifts to the conservative forces on the Court, the need to vindicate the criminal jurisdiction of the states has been emphasized. There is concern that executions are the only alternative to vigilante justice. As long as the imposition of capital punishment complied with the standards laid down in Gregg and subsequent decisions, the states were authorized constitutionally to carry out the death sentences. In the minds of some of the justices, persistent challenges to these sentences, particularly by collateral proceedings after direct review, were impairing both the rule of law and the integrity of state criminal trials. The reasoning seems to be that, when society determines certain murders are so terrible that those who perpetrate them deserve the penalty of death, such a determination should not be frustrated by the courts. While this point of view is understandable, it overlooks some of the more subtle aspects of constitutional responsibility that must be borne by a supreme judiciary.

No matter how legitimate the authority of states is to impose the death penalty, that power must be reconciled with the constitutional standards already laid down by the Supreme Court. Moreover, the legitimacy of the Court itself depends, in large measure, upon how faithfully the justices follow their own precedents. Once having said what the law is, the Court must be sure that it is upheld. This is particularly important in the capital punishment field, not only because of the nature of the penalty, but because its validation in Gregg was qualified by subsequent conditions laid down by the Court. In a number of recent cases, there has been a deep tension between the issues and the existing precedents. In resolving that tension, the Court too often has deferred to the power of the state to enact lethal retribution.

In Clemons v. Mississippi, for example, the State Supreme Court had upheld the death penalty even though one of the aggravating factors alleged by the state--that the crime was "especially heinous, atrocious, or cruel"--was unconstitutional under a prior decision of the U.S. Supreme Court. The latter, in an opinion by Justice Byron White, suggested that the State Appellate Tribunal could affirm the death penalty if it would find that a remaining valid aggravating factor outweighs the mitigating evidence. In Blystone v. Pennsylvania, the Court upheld a state statute which obligated the jury in a first degree murder case to impose the sentence of death if there was one aggravating circumstance and no mitigating circumstances; the aggravating circumstance was that the crime had been committed during the perpetration of a felony. In Murray v. Giarratano, it held that the principles of fundamental fairness secured by due process of law do not require a state to provide counsel to death row inmates who wish to pursue collateral post-conviction remedies.

In each of these cases, the Court majority has compromised the rule of law that had been established in earlier decisions. When sentencing by a state appellate court is approved, the principle of individualization of sentencing established in Lockett seriously is compromised. The individual has lost the full opportunity to be heard that is essential to due process of law. When the Court upheld the obligation to impose the death sentence in Blystone, it diluted its earlier decision in Woodson v. North Carolina, which held that mandatory death sentences are unconstitutional. In both instances, the legislature, rather than the jury, was given the ultimate authority to decide whether the death penalty, in a specific instance, was a deserved punishment. While the Court had been attentive to the accused's right to counsel at the trial stage of a capital case, its refusal to insist upon that right in collateral proceedings comprised the due process rights of the death row inmates.

In capital cases, direct review is not an adequate safeguard against miscarriages of justice. Collateral review of death sentences is indispensable, especially when assigned counsel at the earlier stages may not have prepared the case for the accused adequately. This need is borne out by statistics. In Federal non-capital habeas corpus petitions, relief is granted in less than 10% of the cases; in capital petitions, the success rate is more than 50%. To leave an ordinary person to his own resources in filing such petitions, as the Court did in Murray, is to deny such an individual the assistance that traditionally has been considered part of due process of law. The absence of counsel from the beginning of collateral proceedings will make it unlikely that all meritorious claims will be considered.

"Deregulating" the death penalty?

In fairness to the Supreme Court, it must not be implied that a majority of its members deliberately have "deregulated" the death penalty. For example, it has struck down state laws which would require unanimity before mitigating circumstances could be considered (McKoy v. North Carolina) and generally has tried to see that the penalty imposed in capital cases constituted a reasoned moral response to the character and personal history of the accused, as well as the crime itself. The Court has used that principle to strike down a politically popular law that would have mandated execution when a person serving a life sentence without possibility of parole is convicted of murder (Summer v. Shuman).

It may be more accurate to say that the Court increasingly is finding it difficult, if not impossible, to strike a balance between the need for a prompt enforcement of the death penalty and the necessity of careful and judicious review of the sentence. As new issues keep arising each term, the number of variables of fact and law the justices must take into account to fulfill its responsibilities place a serious strain on their capacities for impartial judgment. They are haunted by Furman, with its condemnation of unbridled discretion, yet seem unable to assure that those authorized to impose the death sentence exercise an authentic choice. In deferring to the states they have weakened their independent authority. By allowing states to execute persons for crimes committed when they were 16 (Stanford v. Kentucky), or those mentally retarded (Penny v. Lynaugh), the Court has begun to lose sight of that ultimate responsibility for justice in capital cases that it assumed in Gregg v. Georgia. It even has ruled that evidence of disparate racial impact is insufficient grounds to reverse a death sentence (McCleskey v. Kemp).

Pending legislation would restrict the amount of post-conviction relief available to a condemned prisoner, but this only would exacerbate the problem. One may grant the need for a greater measure of finalty, but what is of central importance is the need to make sure that, before any sentence is carried out, there will be a fair and complete judicial review. Given the qualitative difference between death and other punishments, there must be a measure of review commensurate with the gravity of the penalty. The Court, in conscience, can not allow the penalty of death unless the rights of the individual prisoner are respected fully.

While developing decisions concerning the death penalty are moving the constitutional compass back towards Furman, they also are weakening some of the premises of Gregg. The number of murders committed in the US. after the latter case remains about the same as it was before--approximately 20,000 per year. Therefore, there is no proof that the death penalty provides an effective deterrent. In addition, the retributive value of capital punishment diminishes with the passage of time. While there are over 2,000 inmates on death row, less than 10% have been executed since 1976. It is virtually impossible to distinguish, in a meaningful way, between those who will die and those who will remain in prison. Thus, there is a serious question whether the retention of the death penalty continues to serve any legitimate public purpose.

Retired Justice Lewis Powell has suggested that the time may have arrived when the Congress and state legislatures should consider ending such a "haphazard" practice as capital punishment. However, that responsibility falls upon the Supreme Court, for, while validating public execution, it also has insisted that capital punishment must be imposed "fairly, and with reasonable consistency, or not at all" (Eddington v. Oklahoma).

The uniqueness of the Court's role is its responsibility to make sure that the life of the individual is not taken without due process of law. The justices may differ over the meaning of human dignity and may be skeptical of their power to discern U.S. society's evolving standards of civilized behavior, but they share a common responsibility for the administration of justice. The death penalty may, or may not, be inherently unjust, but it should be declared unconstitutional because the Supreme Court is unable to supervise the imposition of the penalty properly. It no longer can fulfill that obligation of stringent review the Court imposed upon itself as the price of allowing the practice to continue.
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Author:Murphy, Cornelius F.
Publication:USA Today (Magazine)
Date:Mar 1, 1993
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