The structure of European democracies also makes it more likely that majorities will defer to deliberative decisions by national leaders and experts, a dynamic that the British decision to abolish the death penalty exemplifies. In the 1950s, the Report of the Royal Commission on Capital Punishment opposed the death penalty. Despite the fact that an opinion poll showed that 70 percent of Britons supported capital punishment for murderers of police officers, Britain abolished capital punishment in the 1960s. As time passed, more Britons embraced abolition. By 2006, less than half supported capital punishment for murderers of police officers.1
Parallel developments occurred in the United States prior to President Nixon’s election. “America in the 1960s stood on the verge of abolishing capital punishment, as did Britain, Ireland, Canada, Australia, New Zealand, and most of continental Europe.” The Warren Court was still “operating as an engine of liberal reform”; in 1964 Lyndon Johnson won a landslide victory; in 1965 Congress enacted the Voting Rights Act, dramatically changing electoral practices in the South; and in 1966 a Gallup poll found that most Americans opposed the death penalty. Prominent elected officials took abolitionist positions without apparent political cost.
In 1963 Justice Arthur Goldberg published a dissent from the Supreme Court’s refusal to review Rudolph v. Alabama, in which the defendant was sentenced to death for rape. Consistently with his treatment of most debates about capital punishment as having an all-or-nothing character, Garland reads that dissent as having signaled to the civil rights community that constitutional challenges to the death penalty would find judicial support. In fact, Justice Goldberg’s published opinion merely identified the narrower question of whether death is a permissible punishment for rape—a question resolved negatively in Coker v. Georgia (1977).
In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction.
In my view, unlike Garland’s, when Furman was decided, the justices on the Burger Court were—appropriately—just trying to interpret the Constitution. The difficulties they faced—rather than a reversal in policy—explain unique aspects of the decision. The judgment was announced in a brief unsigned opinion. Each of the nine justices explained his views in a separate opinion. Only two justices endorsed total abolition, and all four dissenters were Nixon appointees, including two who occupied seats once held by Justice Goldberg and Chief Justice Earl Warren.
Garland has little to say about the positive effects of Furman or the five decisions in 1976 that upheld the constitutionality of three state statutes while invalidating mandatory capital punishment laws in North Carolina and Louisiana. Under his “all- or-nothing” approach, he does not consider whether the new state statutes were better or worse than their pre-Furman predecessors.
In his opinion in Furman, Justice Stewart observed that the death sentences before him were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The constitutional remedy to deaths being “so wantonly and so freakishly imposed” would narrow the category of death-eligible offenses while enforcing procedural safeguards against the risk that facts unrelated to moral culpability would affect sentencing. More recent decisions have unwisely rejected Justice Stewart’s narrowing approach.
The dynamic supporting a broader application of the death penalty is revealed in cases involving victim-impact statements, felony murder,2 controversy over attitudes toward the death penalty in jury selection, and race-based prosecutorial decisions. As Garland correctly observes, testimony about impact on victims “has been criticized for increasing the emotional temperature of an already highly charged process and exerting additional pressure on the jury to return a death sentence.” In Booth v. Maryland (1987), the Court held that such evidence could serve no purpose other than inflaming the jury and was “inconsistent with the reasoned decisionmaking we require in capital cases.”
Four years later, the Court abruptly overruled Booth in Payne v. Tennessee (1991). Acting “directly contrary to the Court’s rationalizing reforms,” Garland writes, the Court in this decision impeded reasoned jury decision-making. I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 if they had remained on the Court. That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the Court, notwithstanding changes in membership, upholds its prior decisions.
Personnel changes also explain three other important developments in post-Furman jurisprudence that Garland omits. Justice Stewart joined the opinion in Coker v. Georgia, holding that the death penalty may not be imposed for the crime of rape. The year before, he had announced the opinion in Woodson v. North Carolina (1976) barring all mandatory death sentences. He also surely would have joined the majority in Enmund v. Florida (1982) had he still been on the Court. Enmund held that death is not a valid penalty for felony murder if the defendant neither took life, attempted to take life, nor intended to do so.
In its five-to-four decision in Tison v. Arizona (1987) five years later, however, the majority enlarged the category of defendants eligible for execution by holding that major participation in a felony, combined with reckless indifference to human life, may satisfy Enmund‘s culpability requirement. Because a decision enlarging the category of death-eligible defendants is so inconsistent with Justice Stewart’s writing, I firmly believe he would not have joined that unfortunate decision.
That is equally true of decisions cutting back on his landmark opinion concerning “death-qualified” juries in Witherspoon v. Illinois (1968). Whereas that case made clear that opposition to the death penalty is not a permissible basis upon which to disqualify or exclude prospective jurors willing to set aside their beliefs in deference to the rule of law, later cases—most notably the 5–4 decision three years ago in Uttecht v. Brown—allow such opposition to be treated as disqualifying because it may substantially impair a juror’s ability to follow the trial judge’s instructions. In Brown, the prosecution spent more than two weeks in voir dire to make sure that the jury was “death qualified.” Justice Stewart used the term “hanging jury” to describe such a panel, which now may be accepted as a fair cross-section of the community.
In 1987, the Court held in McCleskey v. Kemp that it did not violate the Constitution for a state to administer a criminal justice system under which murderers of victims of one race received death sentences much more frequently than murderers of victims of another race. The case involved a study by Iowa law professor David Baldus and his colleagues demonstrating that in Georgia murderers of white victims were eleven times more likely to be sentenced to death than were murderers of black victims. Controlling for race-neutral factors and focusing solely on decisions by prosecutors about whether to seek the death penalty, Justice Blackmun observed in dissent, the effect of race remained “readily identifiable” and “statistically significant” across a sample of 2,484 cases.
That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings. Justice Stewart, had he remained on the Court, surely would have voted with the four dissenters. That conclusion is reinforced by Justice Powell’s second thoughts; he later told his biographer that he regretted his vote in McCleskey.
Under Justice Stewart’s approach, a jury composed of twelve local citizens selected with less regard to their death penalty views than occurs today—in that respect, a truer cross-section of the community—would determine individual defendants’ fates. Once chosen, such jurors would not be inflamed by victim-impact statements; they would be insulated from race-based decisions by prosecutors; and they would weigh the offender’s culpability against relevant mitigating circumstances in determining his fate. There are crimes for which such a jury would almost certainly impose a death sentence if so authorized. A portion of the Baldus study that Professor Garland does not discuss found a significant category of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to race.
The Michigan statute assumed that treason was one such offense. Timothy McVeigh’s bombing of the federal office building named after Judge Murragh in Oklahoma City is surely another. I imagine that attempted assassination of the Pope would qualify, as could murder of a law enforcement officer or prison guard, and perhaps the kind of crime—serial killing of students—described in Garland’s prologue. Garland does not tell us whether he would be an abolitionist in such cases. Rather than treating the death penalty as an all-or-nothing issue, I wish he had commented on the narrower regime that Justice Stewart envisioned.
While he has studiously avoided stating conclusions about the morality, wisdom, or constitutionality of capital punishment, Garland’s empirical analysis speaks to all three. In his account, capital punishment once served the “rationalized state purpose of governing crime” but is now a “resource for political exchange and cultural consumption.” These are both social functions, as Garland states, but of vastly differing moral moment. Deterring crime is a valid reason to punish. Neither political strategy nor deference to the mass media, however, provides an adequate justification for “the more than twelve hundred men and women who have been put to their deaths since executions resumed three decades ago.”
In 1977 in Gardner v. Florida, the Court set aside a death sentence because the trial judge relied on information not disclosed to the defense, a then-permissible practice in noncapital cases. My opinion in that case stated that death is different in kind from other American punishments:
From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion.
When I wrote those words I was thinking about individual decisions in specific cases. Professor Garland’s book persuades me that my comment is equally applicable to legislative decisions authorizing imposition of death sentences. To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.
1 See Philip Johnston, "Less Than 50pc Back Death Penalty," The Telegraph (UK), January 3, 2006. ↩
2 Felony murder laws typically hold a participant in a specified category of felonies criminally liable for killings by an accomplice during the felony. ↩