Transcript The Death Penalty: Cruel and Unusual Punishment? Bill of Rights Institute York County Heritage Trust Historical Society Museum York, Pennsylvania October 30, 2008 Artemus Ward Department of Political.

The Death Penalty:
Cruel and Unusual Punishment?
Bill of Rights Institute
York County Heritage Trust
Historical Society Museum
York, Pennsylvania
October 30, 2008
Artemus Ward
Department of Political Science
Northern Illinois University
[email protected]
http://polisci.niu.edu/polisci/faculty/ward
• What does this mean?
• Is it the old adage: “Let the punishment fit the crime”…
• In Solem v. Helm (1983) the Court said that the Eighth Amendment
proscribes not only barbaric punishments but also sentences that are
disproportionate to the crime committed. To determine whether a
sentence is so disproportionate that it violates the Eighth Amendment,
the justices said that they would consider three factors: “(i) the gravity of
the offence and the harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions.”
• But the use of the Solem proportionality concept has not been accepted
by all the justices, and its application has not always been easy.
Is the Death Penalty Cruel and Unusual?
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Where does the death penalty fit on the spectrum of cruel and
unusual punishment? By the time of Solem in 1983, the Court
had already answered that question: since Louisiana ex. Rel.
Frances v. Resweber (1947) the Court has held that the death
penalty is inherently neither cruel nor unusual.
In fact, never has a majority of the justices agreed that the
death penalty is cruel and unusual, but why not?
The answer lies largely with the intent of the framers (at the
time of ratification, death penalties were in use) and with the
due process clauses of the Fifth and Fourteenth Amendments,
which state that no person can be deprived of life without due
process of law. Presumably, if due process is observed, life can
be deprived.
Another view centers on a phrase Chief Justice Earl Warren
used in a noncapital case: “the Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.”
But some argue that it is difficult to see how punishment of
death does not meet “evolving standards of decency” when so
many Americans seem to support it: roughly 2/3 over the last
four decades or so.
Even so, many lawyers and interest groups have been working
for years, even decades, to eliminate capital punishment on
due process grounds. The NAACP Legal Defense and
Educational Fund (LDF) sponsored one of the first such
attempts…
Earl Warren
Furman v. Georgia (1972)
The Facts and the Ruling
• William Furman, a black man, was accused of murdering
a white man, the father of five children. Under Georgia
law, the jury determined whether a convicted murderer
should be put to death. This system, the LDF argued, led
to unacceptable disparities in sentencing: blacks
convicted of murdering whites were far more likely to
receive the death penalty than whites convicted of the
same crime.
• A divided Supreme Court agreed with the LDF by a vote
of 5-4. In a short per curiam opinion, deciding Furman
and two companion cases, the justices said, “The Court
holds that the imposition and carrying out of the death
penalty in these cases constitutes cruel and unusual
punishment.” Following this terse statement, however,
were nine separate opinions (five for the LDF and four
against), running 243 pages (50,000 words)—the
longest in Court history…
Furman v. Georgia (1972)
The Majority
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The views presented in the opinions of the five-member
majority varied considerably—three justices (William O.
Douglas, Potter Stewart, and Byron White) thought capital
punishment, as currently imposed, violated the Constitution,
and two (William Brennan and Thurgood Marshall) said it
was unconstitutional in all circumstances.
Beyond these general groupings, the five justices agreed on
only one major point of law: that those states using capital
punishment do so in an arbitrary manner, particularly with
regard to race. But they framed even this statement in
divergent terms.
Douglas said arbitrariness led to discriminatory sentencing.
Brennan used arbitrariness as part of a four-part test
designed to determine whether the death penalty is
acceptable punishment. He found that it was degrading,
arbitrary, unacceptable to contemporary society, and
excessive.
Marshall adopted a similar approach but explained that
arbitrariness was but one reason why capital punishment
was cruel and unusual and “morally unacceptable.”
To Stewart, arbitrariness in sentencing meant that the death
penalty was imposed in a “wanton” and “freak[ish] manner,”
akin to being struck by lightning.
For White, arbitrariness led to the infrequency of imposition,
which in turn made death a less than credible deterrent.
Top (L-R): Stewart, White, Marshall
Bottom (L-R): Douglas and Brennan
Furman v. Georgia (1972)
The Dissenters
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Warren Burger
The dissenters, Harry Blackmun, Warren Burger, Lewis Powell,
and William Rehnquist (the four Nixon appointees), were more
uniform in their critiques. To a lesser or greater extent, all
expressed the view that the Court was encroaching on legislative
turf and that Americans had not “repudiated” the death penalty.
Blackmun also lambasted the majority for expressing views wholly
inconsistent with past precedent. In particular, he noted that
Stewart and White had previously found that it would be virtually
impossible to create sentencing standards, but now they were
striking laws in part because of the absence of such standards.
Chief Justice Burger’s opinion raised a unique issue: he noted that
the plurality (Douglas, Stewart, and White) had not ruled that
capital punishment under all circumstances was unconstitutional
and that it may be possible for states to rewrite their laws to meet
their objections. As he asserted: “It is clear that if state legislatures
and the Congress wish to maintain the availability of capital
punishment, significant statutory changes will have to be made….
[L]egislative bodies may seek to bring their laws into compliance
with the Court’s ruling by providing standards for juries and judges
to follow… or by more narrowly defining crimes for which the
penalty is imposed.” Privately, however, Burger though his
suggestions futile, lamenting later, “There will never be another
execution in this country.”
Gregg v. Georgia (1976): The Facts
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Taking cures for Furman, many states set out to revise their death penalty laws.
Among the new plans was one proposed by Georgia (and other states). At the heart
of this law was the “bifurcated trial,” which consisted of two stages—the trial and the
sentencing phase.
The trial would proceed as usual, with a jury finding the defendant guilty or not guilty.
If the verdict was guilty, the prosecution could seek the death penalty at the
sentencing stage, in which the defense attorney presents the mitigating facts and the
prosecution presents the aggravating facts.
Mitigating facts include the individual’s record, family responsibility, psychiatric
reports, chances for rehabilitation, and age. The prosecution must demonstrate that
at least one codified aggravating factors was present such as murder committed
“while the offender was engaged in the commission of another capital offense,” for
the purpose of receiving the victim’s property, and murders that are “outrageously or
wantonly vile, horrible, or inhumane.”
After hearing both sides, the jury determines whether the individual receives the
death penalty. By spelling out the conditions that must be present before a death
penalty can be imposed, the law sought to reduce the jury’s discretion and eliminate
the arbitrary application of the death penalty that the Court found unacceptable in
Furman. As a further safeguard, the Georgia Supreme Court was to review all jury
determinations of death.
Gregg and a friend were hitchhiking north in Florida. Two men picked them up, and
the foursome was later joined by another passenger who rode with them as far as
Atlanta. The four then continued to a rest stop on the highway. The next day, the
bodies of the two drivers were found in a nearby ditch. The individual let off in Atlanta
identified Gregg and his friend as possible assailants. Gregg was tried and convicted
of murder and sentenced to death. The state supreme court upheld the sentence.
Gregg v. Georgia (1976)
The Majority
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Gregg’s conviction was upheld 7-2. Justice Potter Stewart announced the judgment
and wrote an opinion for three justices (Stewart, Powell, and Stevens). He began by
stating that the Eighth Amendment incorporated a “basic concept of human dignity”
but that the death penalty is not cruel and unusual per se. He said that in light of
evolving standards of decency, the penalty is constitutional when it is proportional to
the severity of the crime (not arbitrary) and is not a wanton infliction of pain.
Legislatures need not prove that the death penalty deters, nor need they select the
least severe penalty possible. Legislative choices of penalties thus carry a heavy
presumption of validity.
Stewart also emphasized that constitutional acknowledgment and public acceptance
of the death penalty strengthen its presumptive validity and that retribution is a valid
legislative consideration.
The Georgia statute, according to Stewart, effectively prevents arbitrary and
disproportionate death sentences (1) because the bifurcated procedure allows full
exploration of the evidence relating to the penalty; (2) because the sentencing body
must make specific factual findings to support the result; and (3) because state
supreme court review insures comparability and proportionality among defendants
who receive the death penalty.
Justice Byron White, joined by Warren Burger and William Rehnquist, stated that
Gregg had failed in his burden of showing that the Georgia Supreme Court had not in
this case insured against discriminatory, freakish, or wanton administration of the
death penalty. They also said that limited prosecutorial discretion did not make the
penalty unconstitutional because there are rational considerations that determine
whether prosecutors seek the death penalty: strength of evidence and the likelihood
that the jury would in fact impose the penalty.
Gregg v. Georgia (1976)
The Dissenters
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In his dissent, Justice William Brennan reiterated his position in Furman: “the
punishment of death, for whatever crime and under all circumstances, is ‘cruel
and unusual’ in violation of the Eighth and Fourteenth Amendments….. The fatal
constitutional infirmity is the punishment of death is that it treats ‘members of the
human race as nonhumans, as objects to be toyed with and discarded. [It is]
thus inconsistent with the fundamental premise of the Clause that even the vilest
criminal remains a human being possessed of common human dignity.”
Justice Thurgood Marshall also issued a dissent reiterating his position in
Furman that the death penalty is cruel and unusual punishment forbidden by the
Eighth and Fourteenth Amendments. He also stated that the issue in this case is
whether the death penalty is necessary to accomplish the legitimate legislative
purposes in punishment, or whether a less severe penalty—life imprisonment—
would do as well. The Court said that the two purposes are general deterrence
and retribution.
1. Marshall said that the research shows that “capital punishment is not
necessary as a deterrent to crime in our society.”
2. As for retribution, the justification is that the death penalty is necessary to
prevent the American people from taking the law into their own hands, i.e. if
people see the state as incapable of exacting the punishment offenders
“deserve” they will carry it out themselves through vigilante justice and lynch
law. Marshall explained that there is no evidence that imprisonment rather
than death encourages such behavior and “simply defies belief to suggest
that the death penalty is necessary to prevent the American people from
taking the law into their own hands.”
Aftermath
• What changed between Furman and
Gregg? Why didn’t Furman signal the
end of the death penalty?
• Public opinion polls show an increase
from about half to about two-thirds
between the two decisions.
• Only two justices in Furman—
Brennan and Marshall—called for its
abolition. The others simply wanted
arbitrariness remedied and that’s
what they got with new state
procedures.
• Many states adopted a variation of
Georgia’s death penalty law
(currently, 38 states have death
penalty laws on their books), and
executions increased accordingly…
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In 2006, 53 persons in 14 States were executed -- 24 in Texas; 5 in Ohio; 4 each in
Florida, North Carolina, Oklahoma, and Virginia; and 1 each in Indiana, Alabama,
Mississippi, South Carolina, Tennessee, California, Montana, and Nevada.
Of persons executed in 2006, 32 were white and 21 were black.
All 53 inmates executed in 2006 were men.
Lethal injection accounted for 52 of the executions and electrocution for one.
In 2007, 42 persons were executed—a 13-year low—placing the U.S. 5th in the world in
2007 behind China (470), Iran (317), Saudi Arabia (143), and Pakistan (135).
Currently lethal injection is the method used or allowed in 37 of the 38 states which have
the death penalty. Nebraska requires electrocution. Other states also allow electrocution,
the gas chamber, hanging and firing squad.
The gas chamber was last used in Arizona in 1999. A convict chose death by firing squad
in Utah in 1996 (Idaho and Oklahoma also allow firing squads as the backup method to
lethal injection. The last public hanging (and also the last public execution) occurred in
1936 in Kentucky.
Atkins v. Virginia (2002)
The Facts
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In Penry v. Lynaugh (1989) the Court ruled that the Eighth Amendment does not
categorically prohibit the execution of a mentally disabled defendant convicted of
a capital murder.
Daryl Atkins and William Jones were spending a day smoking marijuana and
drinking. They went to a convenience store but had no money. So they
carjacked, robbed, and killed an airman by shooting him eight times. Jones
plead guilty and testified that Atkins was the shooter. Atkins said that Jones was
the shooter. The jury believed Jones and convicted Atkins of the murder.
At sentencing, the jury heard testimony from a forensic psychologist, hired by
the defense, that Atkins was mildly mentally disabled with an IQ of 59 and an
impaired capacity either to understand the criminality of his conduct or to
conform his behavior to the law. A psychologist for the prosecution said that
while he had an antisocial personality disorder he was at least of average
intelligence.
The jury also heard about Atkins’ 16 prior felony convictions for robbery,
attempted robbery, abduction, firearms violations, and maiming. They sentenced
him to death and the Virginia Supreme Court upheld the sentence relying on
Penry.
Atkins v. Virginia (2002)
Justice John Paul Stevens
Delivered the Opinion of the Court
• In Atkins, the Court reversed course and struck down a Virginia law
permitting the practice. Writing for the 6-3 majority Justice John Paul
Stevens used the proportionality test and invoked the “evolving
standards of decency” argument.
• He explained that since Penry, numerous states and the federal
government have exempted the mentally disabled from execution while
none have passed new legislation allowing it. “And it appears that even
among those States that regularly execute offenders and that have no
prohibition with regard to the mentally retarded, only five have executed
offenders possessing a known IQ less than 70 since we decided Penry.
The practice, therefore, has become truly unusual, and it is fair to say
that a national consensus has developed against it.”
• Stevens went on to explain that the two justifications for the death
penalty—deterrence and retribution—could not be logically applied to
the mentally disabled as their diminished mental capacity makes them
less culpable and less able to understand the consequences of their
actions.
Atkins v. Virginia (2002)
Justice Antonin Scalia
Dissenting
• Scalia (joined by William Rehnquist and Clarence Thomas) dissented:
“Today’s decision is the pinnacle of our Eighth Amendment death-isdifferent jurisprudence. Not only does it, like all of that jurisprudence,
find no support in the text or history of the Eight Amendment; it does not
even have support in the current social attitudes regarding conditions
that render an otherwise just death penalty appropriate. Seldom has an
opinion of this Court rested so obviously upon nothing but the personal
views of its members”
• Scalia explained that there is no national consensus against the practice
when a majority of states still permit it and those that do not have only
done so recently.
• As for retribution and deterrence, juries know of the mental disability and
still choose to express their moral outrage by imposing death and juries
can decide in each case whether each individual was culpable or not or
able to understand consequences or not.
Roper v. Simmons (2005): The Facts
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In Thompson v. Oklahoma (1988) and
Stanford v. Kentucky (1989) the Court said
that someone as young as sixteen at the
time the crime was committed could be
executed.
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In 1993 Missouri charged Christopher
Simmons, 17, with murder. About 9
months later, after he turned 18, he was
convicted and sentenced to death.
Simmons asked the state Supreme Court
to set aside his death sentence under the
reasoning of Atkins, which he said applied
to juveniles.
The Missouri Supreme Court agreed and
re-sentenced Simmons to life in prison. It
found that since Stanford, a national
consensus had developed against the
execution of juvenile offenders. The court
cited as evidence that 18 states prohibit
the execution of juveniles, that 12 other
states bar executions altogether, that no
state has lowered its age of execution
below 18 since Stanford, that 5 states
have legislatively or by case law raised or
established the minimum age for
execution at 18, and that the imposition of
the juvenile death penalty has become
truly unusual over the last decade.
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Roper v. Simmons (2005)
Justice Anthony Kennedy Delivered the Opinion of the Court
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Writing for a 5-4 majority (the same as in Atkins minus
O’Connor), Justice Anthony Kennedy affirmed the Missouri
court’s decision. Just as the Court did in Atkins and as did the
Missouri court in Roper, Kennedy pointed to a growing
national consensus against the execution of juveniles. He, like
Justice Stevens in Atkins, also turned to international opinion:
“As [Simmons] and a number of amici emphasize, Article 37
of the United Nations Convention on the Rights of the Child,
which every country in the world has ratified save for the
United States and Somalia, contains an express prohibition
on capital punishment for crimes committed by juveniles
under 18. No ratifying country has entered a reservation to
the provision prohibiting the execution of juvenile offenders.
Parallel prohibitions are contained in other significant
international covenants.”
“Respondent and his amici have submitted, and petitioner
does not contest, that only seven countries other than the
United States have executed juvenile offenders since 1990:
Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic
Republic of Congo, and China. Since then each of these
countries has either abolished capital punishment for
juveniles or made public disavowal of the practice. In sum, it
is fair to say that the United States now stands alone in a
world that has turned its face against the juvenile death
penalty.”
Roper v. Simmons (2005)
Justice Sandra Day O’Connor Dissenting
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“Reasonable minds can differ as to the minimum
age at which commission of a serious crime should
expose the defendant to the death penalty, if at all.
Many jurisdictions have abolished capital
punishment altogether, while many others have
determined that even the most heinous crime, if
committed before the age of 18, should not be
punishable by death. Indeed, were my office that of
a legislator, rather than a judge, then I, too, would
be inclined to support legislation setting a minimum
age of 18 in this context. But a significant number
of States, including Missouri, have decided to
make the death penalty potentially available for 17year-old capital murderers such as respondent.
Without a clearer showing that a genuine national
consensus forbids the execution of such offenders,
this Court should not substitute its own ‘inevitably
subjective judgment’ on how best to resolve this
difficult moral question for the judgments of the
Nation’s democratically elected legislatures. I
respectfully dissent.”
Roper v. Simmons (2005)
Justice Antonin Scalia, Dissenting
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Scalia’s dissent (joined by Rehnquist and Thomas) tracked the
one he wrote in Atkins. He contended that gauging the national
consensus on juvenile executions should have no place in the
Court’s jurisprudence and, even if it did, only 18 (47%) of the
states that permit capital punishment prohibit the execution of
offenders under 18.
“Words have no meaning if the views of less than 50% of death
penalty States can constitute a national consensus.”
“However sound philosophically, this is no way to run a legal
system. We must disregard the new reality that, to the extent our
Eighth Amendment decisions constitute something more than a
show of hands on the current Justices’ current personal views
about penology, they purport to be nothing more than a snapshot
of American public opinion at a particular point in time (with the
timeframes now shortened to a mere 15 years). We must treat
these decisions just as though they represented real law, real
prescriptions democratically adopted by the American people, as
conclusively (rather than sequentially) construed by this Court.
Allowing lower courts to reinterpret the Eighth Amendment
whenever they decide enough time has passed for a new
snapshot leaves this Court’s decisions without any force–
especially since the ‘evolution’ of our Eighth Amendment is no
longer determined by objective criteria. To allow lower courts to
behave as we do, ‘updating’ the Eighth Amendment as needed,
destroys stability and makes our case law an unreliable basis for
the designing of laws by citizens and their representatives, and for
action by public officials. The result will be to crown arbitrariness
with chaos.”
Panetti v. Quarterman (2007)
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With departures of Rehnquist and
O’Connor and the additions of Roberts and
Alito, would the Court’s death penalty
jurisprudence change?
In a 5-4 decision the Court held in Panetti
that a mentally ill convicted murderer who
was delusional and lacked a “rational
understanding” of why the state had
sentenced him to death could not be
executed.
The Court also held that capital defendants
can challenge their sentences on mental
illness grounds at any point prior to their
execution, including after the date for
execution is set.
Kennedy wrote the opinion and joined the
four liberals in yet another example of his
skepticism about the reach of the death
penalty.
Roberts and Alito joined Scalia and Thomas
in dissent, effectively replacing the votes
Rehnquist and O’Connor in Roper.
Justice Anthony Kennedy
Baze v. Rees (2008)
The Facts
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Do death sentences carried out by lethal injection violate the Eighth Amendment ban on
cruel and unusual punishment?
States began using lethal injection in 1978 as an alternative to the historic methods of
electrocution, the gas chamber, hanging and shooting. But there recently have been
botched lethal injection executions in which inmates took up to 30 minutes to die.
In 2006, the Kentucky Supreme Court affirmed the constitutionality of lethal injection,
noting that of the 38 states that permit capital punishment, the majority use the injection
method because it is "universally recognized as the most human method of execution and
the least apt to cause unnecessary pain."
The lethal injection method calls for the administration of three or four drugs: Valium, which
relaxes the convict, Sodium Pentathol, which knocks the convict unconscious, Pavulon,
which stops breathing, and potassium chloride, which essentially puts the convict into
cardiac arrest, ultimately causing death.
Two inmates challenged Kentucky's three-drug lethal injection protocol on the grounds that
condemned prisoners can suffer excruciating pain, without being able to cry out, if given
too small a dose of the anesthetic.
The Kentucky Supreme Court noted that only one person has been put to death under the
state's lethal injection method. It observed that the convict went to sleep within a minute of
the first injection and did not move or show any evidence of suffering during the remainder
of the process.
The U.S. Supreme Court issued stays on pending executions after it agreed to decide this
case September 25, 2007. Therefore, states that used the lethal injection method had to
wait until the Court’s decision was announced.
Baze v. Rees (2008)
The Opinions
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John Roberts
The Court upheld the drug protocol for lethal injection by a 7-2
vote with only Justices Ginsburg and Souter dissenting.
Chief Justice John Roberts said in the court’s controlling opinion
that challengers must show not only that a state’s method
“creates a demonstrated risk of severe pain,” but also that there
were alternatives that were “feasible” and “readily implemented”
that would “significantly” reduce that risk. “A slightly or marginally
safer alternative” would not suffice, the chief justice said. He
added: “Simply because an execution method may result in pain,
either by accident or as an inescapable consequence of death,
does not establish the sort of ‘objectively intolerable risk of harm’
that qualifies as cruel and unusual” under the Eighth
Amendment. He said that Court has never declared a method of
execution unconstitutional. It allowed the electric chair and firing
squads in the late 1800s. “It is clear…that the Constitution does
not demand the avoidance of all risk of pain in carrying out
executions.”
Justice John Paul Stevens agreed with Roberts that the evidence
presented by the two inmates failed to show the state's method
was unconstitutional. He said in his separate opinion that he felt
bound by the court’s precedents to uphold the constitutionality of
the Kentucky protocol. But he went on to call for abolishing the
death penalty, both as a matter of policy and of Eighth
Amendment jurisprudence. “State-sanctioned killing,” Justice
Stevens said, was “becoming more and more anachronistic.”
Kennedy v. Louisiana (2008)
Justice Anthony M. Kennedy Delivered the Opinion of the Court
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By a vote of 5-4, the Court ruled that the Constitution prohibits
the death penalty for the rape of a child.
Kennedy’s majority opinion was based in part on the
conclusion that because child rape was a capital offense in
only six states, and not under federal law, the death penalty
for the crime did not meet the “evolving standards of decency”
by which the court judges capital punishment.
He wrote: “The evidence of a national consensus with respect
to the death penalty for child rapists, as with respect to
juveniles, mentally retarded offenders, and vicarious felony
murderers, shows divided opinion but, on balance, an opinion
against it. Thirty-seven jurisdictions—36 States plus the
Federal Government—have the death penalty. As mentioned
above, only six of those jurisdictions authorize the death
penalty for rape of a child. Though our review of national
consensus is not confined to tallying the number of States
with applicable death penalty legislation, it is of significance
that, in 45 jurisdictions, petitioner could not be executed for
child rape of any kind. That number surpasses the 30 States
in Atkins and Roper and the 42 States in Enmund v. Florida
(1982) that prohibited the death penalty under the
circumstances those cases considered.”
Furthermore, Kennedy explained that death could not be
imposed for any crime in which the victim is not killed.
Kennedy v. Louisiana (2008)
Justice Samuel Alito Dissenting
• Alito (joined by Scalia) explained that:
1. The Court’s decision was not supported by the original meaning of the Eighth
Amendment.
2. None of the Court’s precedents command the result.
3. There are no reliable “objective indicia” of a “national consensus” in support of
the Court’s position.
4. Sustaining the constitutionality of the state law would not “extend” or “expand”
the death penalty.
5. The Court has previously rejected the proposition that the Eighth Amendment
is a one-way ratchet that prohibits legislatures from adopting new capital
punishment statutes to meet new problems.
6. The worst child rapists exhibit the epitome of moral depravity
7. Child rape inflicts grievous injury on victims and on society in general.
Kennedy v. Louisiana (2008)
Criticism and Aftermath
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Within an hour of the opinions being handed down it was loudly denounced on
many fronts, including by both of the major candidates for president.
A week later, The New York Times reported that the U.S. Department of Justice
admitted making a mistake in the case by not informing the Court that Congress
added child rape to the military death penalty in 2006 and that President Bush
issued an executive order in September 2007 adding the new provision to the
current version of the Manual for Courts-Martial.
Still, Congress made the change as part of a 450-page omnibus appropriations
bill, there was no debate about it, and no press coverage. It is likely that no one
in Congress knew they passed it.
Regardless, both parties in the case missed this information as did all seven of
the “friend of the Court” briefs filed by interested parties and all nine justices and
their three-dozen law clerks.
On July 21, 2008 the state of Louisiana petitioned the Court to rehear the case.
On October 1, 2008 the justices denied the petition. Kennedy issued a statement
concerning the denial explaining that the military had not executed anyone in
more than 40 years, those facing death sentences committed murder, and that
the new law states that the penalty could only be imposed after a court-martial.
In any event, he argued that military context should have no bearing on death
sentences in civilian cases.
It’s Justice Kennedy’s World
and You Just Live in It
• There are signs that the justices are
gearing up to reconsider the issue
of whether the death penalty is
being applied in a discriminatory
way…
• Justice Sandra Day O’Connor was
often considered the “swing vote”
during her tenure (1981-2005). But
she was only in 5-4 majorities about
2/3 of the time.
• Kennedy had been in 5-4 majorities
½ to 2/3 of the time.
• Now Kennedy is in all of them.
• However, with Justice John Paul
Stevens turning 89 this Term it is a
safe bet that the new president will
make at least one appointment in
the next year or two.
Further Reading
•
THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE,
by Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun. New York
and Cambridge: Cambridge University Press, 2008.