The changing narrative on the death penalty

The constitutional narrative that has guided the Supreme Court’s thinking on the death penalty for most of the past four decades is beginning to change. Developing in its place is a new approach that puts less emphasis on the rights of inmates on death-row and more on the power of the states to carry out executions.

A narrow but solid five-Justice majority appears to be emerging in this area of constitutional law, and it is demonstrating a distinct lack of patience with the prolonged time lapses between the imposition of a death sentence and an actual execution. As a result, the core meaning of the Eighth Amendment’s ban on “cruel and unusual punishment” could itself be changing.

Since 1976, when the Supreme Court renewed the states’ constitutional option to enact death-penalty laws (after a four-year span without the penalty in effect in any state), the Supreme Court has ruled often on constitutional questions about such sentences, mostly setting up new barriers although there has never been a majority threatening to strike it down. (Unlike some points in the past, there is now no member of the Supreme Court who is willing to find death sentences to be unconstitutional, although Justice Stephen G. Breyer appears to be on the way toward adopting that view.)

This decades-long approach has meant, for example, that the only crimes for which death is still permitted constitutionally are murder and treason. And it has meant that several categories of those who commit murder are now excluded from such sentences – such as minors and mentally handicapped individuals.

The constitutional narrowing of capital punishment has been based mainly on the simple premise that, among punishments for crime, “death is different.” The penalty’s scope has been changing because the Supreme Court has been applying “evolving standards of decency” as a requirement that the Eighth Amendment must satisfy.

Focusing on the penalty’s finality and the decency rationale, the Supreme Court has ordered lower courts to go to considerable lengths to make sure that the process is as free of errors as possible, that all safeguards have been followed. And Supreme Court has allowed death-row inmates repeated chances to return to the courthouse to make challenges.

One result has been that the time from the day of sentencing to execution has steadily lengthened, and it is now not uncommon for decades to pass as death-row inmates and their defense lawyers find ways to return to court to pursue what are clearly ever-changing constitutional challenges. Very often, those challenges are made when execution day is near – at least some of the time because of newly-adopted modes and protocols for carrying out the sentence.

To have time to make a new challenge, defense lawyers frequently ask for delays of executions, leading to night-time vigils as those requests move rapidly up from lower courts to the Justices. Such delay requests, of course, have life-or-death consequences for the inmates.

Because of the sensitivity of the issue, the Supreme Court has a clerk who specializes in monitoring execution dates and inmate challenges. That clerk works with the Justices as they decide on delay requests, sometimes within minutes of a scheduled execution. Late last week, the Court issued a ruling in one of these cases, from Alabama, at 2:51 a.m., hours after the state decided to call off a midnight execution that – as it turned out -- the Court had actually voted 5-to-4 to allow.                       

The new Court majority has left little doubt that it is guided by a new premise, which can be summarized this way: Since the penalty is constitutional, states that retain it need more authority to make it a reality, with less interference from the courts.

That can mean, and already has begun to mean, two things: First, that eleventh-hour challenges to imminent executions will be quickly turned aside if there is any doubt over whether the inmate or the defense lawyer had made that challenge just as soon as the opportunity arose, and second, that even if the new challenge has some merit, its tardiness will be sufficient to clear the way for the execution to proceed.

In the Alabama order issued early Friday, Justice Breyer protested in a sharply-worded dissenting opinion that the majority was not even willing to wait to permit the execution until the nine Justices could discuss the delay request at a scheduled conference later in the day on Friday.

Both sides in this developing conflict are showing considerable discontent with each other, and the wording used on both sides seems sharper.

It is one of the cultural ironies of the shift by the new majority to protect states’ death-sentencing regimes that it is emerging even amid continuing signs that the nation as a whole is changing its mind about its long-time support for capital punishment.

A Gallup Poll last October showed that, while 56 percent of those surveyed do support the death penalty, that was just 1 point above the lowest level of support in more than four decades. A Gallup analyst said that support for the penalty “has been trending downward [in Gallup surveys] since peaking at 80 percent in the mid-1990s.” Some of this sentiment very likely works its way into jury rooms, reducing the incidence of death sentencing.

Since 1968, the highest yearly total of executions carried out was 98 in 1999, and that rate has generally been downward; the last time the rate was above 50 was in 2009, ten years ago; last year, the total was 25. So far this year, there have been three. (The statistics are compiled by the Death Penalty Information Center, a private group.)

While 30 states still have the death penalty available as a legal matter, the governors of four of those states have imposed moratoriums against carrying out any executions. Those states are Colorado, California, Pennsylvania, and Oregon. Most of the other states on the list have not carried out an execution in years. The federal government last carried out an execution in 2003.

In the last 10 years, the voters, legislators or state courts in four states have declared the penalty unconstitutional, the most recent being Washington State by its supreme court last October. The others were Connecticut, Delaware and New Mexico.

It is clear that the five-Justice majority that is now moving to facilitate executions, where juries have imposed them and state courts have upheld them, do not take a public position on whether the states should keep this form of punishment or abolish it.

Justice Neil M. Gorsuch, writing for those five in the majority in the most extensive recent ruling on the death penalty on April 1, said: “Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously.” (The new decision came in the case of Bucklew v. Precythe.)

The opinion added: “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. Last minute stays should be the extreme exception, not the norm.” Delay in making a challenge, if it could have been put forward earlier, Gorsuch wrote, could be enough to reject that challenge and allow an execution to proceed.

Those views were supported by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Brett M. Kavanaugh and Clarence Thomas.

Justices Breyer and Sonia Sotomayor wrote dissenting opinions; they were joined in dissent by Justices Ruth Bader Ginsburg and Elena Kagan.

Those opposing line-ups were repeated in several recent orders permitting executions to proceed, including the one granted early Friday morning.

While the broad language used by Justice Gorsuch was aimed only at challenges involving the techniques or protocols that states would be using for executions, that kind of challenge is the most common these days, and thus it will be in those cases where the new Court majority will most often have the occasion to re-define the Eighth Amendment as it applies to capital punishment.

That, in fact, has already been demonstrated by the new majority. It has moved energetically to solidify an Eighth Amendment rule that was introduced somewhat tentatively by the Court in a 2008 decision, where it did not command majority approval.

In a significant innovation in the law of capital punishment, a plurality of the Court suggested in that case (Baze v. Rees) that inmates challenging an execution method as “cruel and unusual” punishment could succeed only if the inmate and the defense lawyer could suggest an alternative method that would work as well to bring about death without causing excessive pain. In short, this approach would ease the state’s task of defending its execution method because it would shift the burden to the inmate to come up with an alternative.

A majority did embrace that concept in 2015, in the case of Glossip v. Gross. That set the stage for lower courts to apply the switch to new test cases on execution methods. Since then, the Court’s membership has changed, bringing to the bench Justice Kavanaugh, who did not have a well-developed record as a lower-court judge in death penalty cases.

On April 1, when the Court issued its most comprehensive review so far of the burden put on the inmate and the defense lawyer to satisfy the Eighth Amendment (Bucklew v. Precythe), the new majority emerged, fully formed. Justice Kavanaugh joined those signing onto Justice Gorsuch’s sweeping Bucklew opinion. That, of course, brought forth under the Eighth Amendment the new and firmer insistence on enhancing the states’ power to carry out executions.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.