ADDRESSING THE SUPREME COURT'S HALF-BAKED EIGHTH AMENDMENT MAJORITARIANISM: HOW STATES CAN USE ADVISORY BALLOT QUESTIONS TO GIVE MORE LEGITIMACY TO THE COURT'S DEATH PENALTY DECISIONS.

• Author: Ferrante, Dominic

Introduction

Over its half-century-long struggle (1) with how to determine whether a particular application of the death penalty is unconstitutional under the Eighth Amendment's prohibition on "cruel and unusual punishments," (2) the Supreme Court has arrived at a two-part approach for how to answer these questions. The first part of this approach requires the Court to assess "objective indicia" of society's moral standards about a particular application of the death penalty. (3) The Court has recognized two main "objective indicia" that it relies upon to divine Americans' moral feelings toward particular uses of the death penalty: (1) legislative enactments by state legislatures regarding the use of the death penalty at issue and (2) the frequency at which sentencing juries will impose the death penalty for a crime for which it is authorized. (4)

By looking to these supposedly objective indicia to inform a critical portion of its decisions, the Court adopts a majoritarian approach for death penalty cases. As many critics have pointed out, however, there are flaws with both of these indicia that make them unlikely to provide an accurate sense of Americans' moral views on whether particular crimes should be punishable by death. (5) If these sources are ineffective at accurately estimating public sentiment, then they are failing to serve their only purpose in death penalty cases. Therefore, the Court needs to reevaluate its approach to death penalty jurisprudence. This does not necessarily require that the Court abandon objective indicia altogether. This Note proposes one possible solution whereby these unreliable indicia would be replaced by a more reliable indicator of Americans' views: instituting advisory ballot questions that allow Americans to declare their personal views about the morality of punishing particular crimes with death at the time they vote in general elections.

Part I provides background information about the difference between counter-majoritarian and majoritarian approaches to answering constitutional questions and about the historical development of the Court's death penalty jurisprudence. Part II surveys problems with the Court's current approach of using state legislative enactments and the practices of sentencing juries to determine societal views about the acceptability of the death penalty in particular situations--problems which make the Court's reliance on these sources inapposite. Part III summarizes another concern with the Court's current objective indicia approach: that many believe that the Court manipulates the objective indicia analysis to match whatever result the majority of Justices favor based on their personal views. Part IV briefly explores the Court's limited use of public opinion polling in its reasoning in death penalty cases and its ultimate rejection of reliance on public opinion polls in these cases. Part IV then proposes giving the Court a new source of data from which it can reliably determine societal views about the death penalty: advisory ballot questions in all states that allow individual Americans to express their views on the acceptability of the death penalty in specific situations at the time they vote in general elections.

1. Background

   1. Majoritarianism vs. Counter-Majoritarianism

      At the heart of the Supreme Court's death penalty jurisprudence lies the question of its purpose as an institution. Counter-majoritarians contend that the Supreme Court is a body that "use[s] its own reasoned judgment-regardless of where the majority stands on an issue--when engaging constitutional interpretation." (6) To them, the Court is an institution designed to protect individuals and minorities from being left to the mercy of the majority. (7)

      Conversely, majoritarians reject the idea that the Court serves as a true check on majority opinion. (8) In general, majoritarian scholars take the position that the Court derives constitutional meaning from sources extrinsic to the Constitution, supposedly "objective" factors that reflect the consensus views of the American public on constitutional questions. (9) These scholars tend to argue that the Court usually reaches constitutional decisions by referring to these majoritarian sources. (10) Many constitutional scholars even argue that it is better for the Court to reflect the constitutional views of the majority of the American public in its decisions rather than serve as an independent check against majority opinion. (11)

      There are persuasive reasons to believe a majoritarian approach by the Court is superior to a counter-majoritarian one, at least in the context of Eighth Amendment issues. Majoritarian sources can help the Court decide hard cases. (12) Looking to majoritarian sources can also help the Court give content to constitutional language that does not have an obvious meaning that can be determined from the plain text itself, such as "cruel and unusual punishments." (13) A majoritarian approach may also be superior because decisions made through such an approach better protect the Court's legitimacy. (14) Constitutional decisions that have majoritarian support will likely receive less backlash from the public and be more stable. (15) Finally, the Framers themselves may have meant for a majoritarian approach to be applied to interpreting the Eighth Amendment if, as one scholar argues, they understood the word "unusual" to mean "contrary to long usage." (16) According to this meaning, punishments that were once often imposed but which had fallen out of popular usage for long periods lost their presumption of validity. (17) Therefore, if a particular punishment fell out of favor with the public at large and ceased to be often imposed, it could come to be considered "unusual" by the courts and no longer permissible. (18) Which punishments were "unusual" could therefore change over time as certain punishments were no longer imposed.

   2. Evolution of the Supreme Court's Death Penalty Jurisprudence

      The Eighth Amendment provides that "cruel and unusual punishments" shall not be inflicted. (19) The Supreme Court's early Eighth Amendment jurisprudence emphasized the amendment primarily as one proscribing the use of torture as punishment. (20) In the early twentieth century, however, the Court began to take a more expansive view of the Eighth Amendment in Weems v. United States (21) In Weems, the Court surveyed scholarship that connected the Eighth Amendment's prohibition on "cruel and unusual punishment" to a similarly worded provision in the English Bill of Rights of 1688 and considered whether the Eighth Amendment was meant only to prohibit certain torturous punishments like those enacted by the Stuart monarchs. (22) Even if the Amendment was initially written with the Stuarts' abuses in mind, the Court reasoned that the Amendment's drafters did not intend for the Amendment's scope need to be confined only to the specific conduct that gave rise to it. (23) Here, for the first time, the Court acknowledged that the Eighth Amendment "may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." (24)

      Weems both broadened the Eighth Amendment beyond a mere prohibition of torture into a requirement that demands proportionality between the crime committed and the punishment inflicted in response and determined that the reference point for what is "cruel and unusual" was not fixed to conceptions of cruelty that existed in the early days of the United States. (25) In Trop v. Dulles, the Court reaffirmed its commitment to the notion that what is cruel and unusual is not fixed but rather can and does change over time. (26) There a plurality of the Court first stated that the Eighth Amendment's prohibition on cruel and unusual punishment depends on "the evolving standards of decency that mark the progress of a maturing society." (27)

      It was in Gregg v. Georgia, a challenge to the constitutionality of the death penalty in any application, that the Court first roughly articulated a test to determine whether a particular punishment is in accord with the "evolving standards of decency" it had mentioned in Trop. (28) The Gregg Court acknowledged that a subjective judgment by the members of the Court would not suffice to make this determination since it is necessary to gauge contemporary values regarding a particular punishment. (29) Therefore, the Court stated that it first needed to "look to objective indicia that reflect the public attitude" toward a particular punishment. (30) But the Gregg Court was also clear that public perception alone could not be conclusive as to the constitutionality of a particular punishment. (31)

      Since Gregg, the Court has more fully articulated a two-part test for determining the "evolving standards of decency." Determining this standard "necessarily embodies a moral judgment" because the standard must be applied differently "as the basic mores of society change." (32) Therefore, the Court first looks to objective indicia of societal standards to gauge whether a consensus against a particular application of the death penalty has emerged in the nation. (33) Second, the Court decides in its own independent judgment, based on its own precedents and understanding of the Eighth Amendment, whether a particular application of the death penalty is constitutional. (34) This is the basic test the Court has applied for the last half-century when faced with the question of whether a particular application of the death penalty is constitutional under the Eighth Amendment. (35)

   3. Sources of Objective Indicia

      The Court has consistently recognized that the most important objective indicator of societal standards of decency for determining whether a consensus against a particular application of the death penalty exists is state legislative enactments. (36) The major thrust of the objective indicia analysis therefore involves...