Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at comments from Pope Francis on the death penalty, and the dynamics at the Supreme Court in its consideration of the issue.
THE STATEMENT AT ISSUE:
“I appeal to the conscience of those who govern so that international consensus is reached for the abolishment of the death penalty. And I propose to all those among them who are Catholic to make a courageous and exemplary gesture: may no execution sentence be carried out in this Holy Year of Mercy….In effect, modern societies have the possibility to efficiently repress crime without taking away definitely the possibility to redeem oneself from those who committed the crime. Even criminals hold the inviolable right to life given by God.”
– Excerpt from a statement from Pope Francis, on February 21, speaking to tourists and pilgrims gathered in St. Peter’s Square at Vatican City in Rome. The Roman Catholic Church’s commemoration of the Holy Year of Mercy continues until November 20.
WE CHECKED THE CONSTITUTION, AND…
Americans clearly have it within their power, as a constitutional matter, to abolish the death penalty. The power to end it in one move, under the Eighth Amendment, lies with the Supreme Court, and two of its Justices have suggested that the court take up a test of that very possibility. The nation’s people, of course, also would have the power to end it through their role in initiating or in ratifying constitutional amendments, but that would involve a multitude of actors operating from different perspectives about the issue.
State legislatures, governors and other officials also have the authority to either eliminate the penalty by passing repeal measures, or to put a moratorium on executions while the prospect of ending the practice is further studied.
Neither of those state-level efforts is out of the question. The legislature in Nebraska became the nation’s 19th state to abolish capital punishment, when it passed a repeal measure last year and then overrode the governor’s veto of the repeal. Now, the governor is leading an effort to get the voters of Nebraska, in a referendum that will be on the ballot on November 8, to reinstate the penalty. In Pennsylvania in February of last year, the governor imposed a moratorium on all executions until a legislative commission completes a study of how the penalty system is working.
Some pressure on elected officials is now being felt, although its effectiveness is hard to measure, by the fact that public opinion polls have begun to show that support among the people surveyed for capital punishment has been coming down slightly, from the 60-plus support it had for several years in a row.
The most recent figures available show that America has just over 3,000 prison inmates under death sentences – 2,959 state prisoners, and 62 federal prisoners. The death penalty remains in force in 31 states, and for federal crimes and for military crimes. The Supreme Court has steadily eroded the options for imposing the death penalty, so that now the only crime for which it can be imposed by the states is for murder, and, for the federal government, for murder or treason.
The Supreme Court has abolished the death penalty for individuals who commit murders when they are still minors (and is also steadily moving toward the point where lengthy prison sentences even for juveniles who commit murders may no longer be a practical possibility).
At the federal level, the president would have the authority to grant sweeping relief from the death penalty, even reaching all 62 now under that sentence in federal prisons. But that seems an unlikely prospect, because politically it would be difficult to justify such a remedy except on a case-by-case basis.
The political hazard of moving toward abolition, by elected public officials, probably suggests that the sentence is going to be retained, at least in some states and at the federal level.
All of these complications, then, would appear to suggest that the one chance of abolition that may actually exist would be to persuade the Supreme Court that it is unconstitutional as a form of “cruel and unusual punishment” – the kind of punishment outlawed by the Eighth Amendment.
From time to time, Justices of the court have lined up against the imposition of any death sentences – as Justices William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens did, at least in their later years on the bench. So far, though, such opponents have never been a part of a majority against executions.
At this point, the one hope that the abolitionists have is that there could be, in time, a group of Justices who would at least agree to reconsider the constitutionality of death sentencing. Without saying outright that the penalty does violate the Eighth Amendment, Justice Stephen G. Breyer last June urged the court to arrange for a review of that question. He was joined in that suggestion by one other Justice, Ruth Bader Ginsburg.
Those two, however, would have to attract the votes of two other Justices even to get the issue on the court’s docket for review, and would have to have the votes of three other Justices to actually reach a decision favoring abolition, if that is what the two seek as an ultimate outcome. Justice Breyer has laid out, at length, all of the reasons why he (along with Ginsburg) regards the penalty as so flawed and so riddled with exceptions that it actually functions only in a very arbitrary, and unfair, way.
Since that position was announced at the end of the court’s last term, however, it has had at least three requests to take up that very question, and the four votes have not been available to actually do so.
With the court having only eight members, at least for the time being, it would appear that the fate of the death penalty probably rests in the hands of Justice Anthony M. Kennedy, should the court ever be ready to consider ending it. It is far from clear, though, that the strong opposition that Kennedy has expressed to the penalty in cases involving juveniles would translate into opposition to it for adult murderers.
The court now has five Justices who are of the Roman Catholic faith, including Kennedy, but it is by no means predictable that they would judge how to vote on the issue according to what Pope Francis has recommended.
