Justice Thurgood Marshall and capital punishment: social justice and the rule of law.

• Author: Fitzpatrick, Tracy B.

INTRODUCTION

Perhaps the element of our criminal justice system to which Justice Marshall most committed himself was the death penalty. Throughout his tenure on the Court, Justice Marshall vigorously adhered to his view that the death penalty, in all cases, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Yet, it is dear the Court had rejected this view in 1976 when it upheld certain capital punishment statutes against constitutional attack.(1)

How could a Justice whose legacy is rooted in his commitment to the use of legal processes to pursue social change and his corresponding dedication to the rule of law simply reject the Court's precedent on this issue? How can any Justice as committed to a substantive vision of justice as Thurgood Marshall ever remain faithful to the rule of law? Indeed, the pursuit of a substantive result in judicial decisionmaking is often viewed as antithetical to a devotion to the rule of law, at least when the result sought is inconsistent with the general direction of a majority of the Court. The rule of law, if viewed primarily as requiring adherence to precedent, would necessitate acceptance and application of the Court's death penalty jurisprudence, even by a Justice who disagreed with it.

A different conception of the notion of the rule of law, however, views the ideal as embodying principles beyond the procedural requirement of adherence to precedent. Under this view, the rule of law as an ideal exists to curb arbitrary assertions of governmental power and to ensure equal application of the laws; that is, the rule of law is not distinct from, but rather is predicated upon, a notion of substantive justice.(2) Although stare decisis is arguably an important vehicle in the achievement of these principles, if it is applied without regard to a ruling's practical effect, the result may be to conceal discrimination and arbitrariness, rather than avoid such treatment. Through his ability to point out the gap between the Court's abstract legal rulings and the effect these rulings have on the lives of real people, Marshall succeeded in remaining faithful to the principles which form the basis of the rule of law as well as to his vision of substantive justice.(3)

This conception of the rule of law is reflected in Justice Marshall's view of stare decisis. For Marshall, the doctrine of stare decisis "is not `an imprisonment of reason.'"(4) Rather, "reason," in contrast to "power," may provide a basis for overruling constitutional decisions.(5) By requiring special circumstances to overrule constitutional decisions, Marshall sought to ensure that decisions to overrule not be grounded in the mere proclivities of individuals.

The area of capital punishment is especially illuminating of this aspect of Marshall's judicial method because the Court's legal rulings in this area are very much dependent upon the de facto implementation of these rulings. Thus, Marshall was able to pursue his substantive vision of justice, yet remain faithful to the rule of law, by continually pointing out the states, failures in implementing the Court's rulings.(6)

Three aspects of the Court's death penalty jurisprudence disturbed Marshall. First, when the Court in 1976 affirmed that the death penalty could be administered in a constitutional manner, it required certain safeguards to ensure that the penalty is not arbitrarily and capriciously imposed.(7) Subsequent decisions demonstrated, in Marshall's view, that the Court did not always mean what it said in 1976. Second, while the Court continued to restrict what federal courts could remedy on post-conviction review, it also narrowly defined unconstitutional ineffective assistance of counsel at trial. This resulted in substantial constitutional claims by capital defendants going unheard. Third, Marshall found most "perverse"(8) the Court's willingness to endorse the expedition of capital proceedings. Such expedition resulted in capital defendants receiving less time to present their cases to the courts than noncapital defendants.(9)

Marshall strongly believed that capital defendants are denied a fair opportunity to defend their lives.(10) Through his dissents and dissents from denial of certiorari, Marshall depicted the extraordinary unfairness, arbitrariness, and discrimination that perv-ades the administration of the death penalty. Part I of this Note will examine Marshall's interpretation of the Eighth Amendment and the methodology that led him to the conclusion that the death penalty is cruel and unusual punishment in all cases. Part II consists of a brief survey of Marshall's death penalty opinions, focusing on the three aspects of the Court's death penalty jurisprudence, identified above, which disturbed Marshall. Part III explores Justice Marshall's dissents on a more abstract level, in light of his approach to judicial decisionmaking generally. It argues that Marshall, despite his obvious disagreement with the Court's jurisprudence in this area, succeeded in remaining faithful to the two ideals with which he approached judicial decisionmaking: pursuit of a vision of justice that extends protection to everyone and commitment to the rule of law.

1. Marshall's Interpretation of the Eighth Amendment and the Constitutionality of the Death Penalty

   In Furman v. Georgia,(11) a plurality of the Court held Georgia's death penalty statute unconstitutional on the ground that its administration had proven arbitrary and capricious. In a separate concurrence in Furman, Justice Marshall laid out the methodology that led him to the conclusion that the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment. By examining the historical derivation of the Eighth Amendment, the construction given to it in the past by the Court, and the history and attributes of capital punishment in this country, Marshall concluded that the death penalty is an excessive punishment and therefore violative of the Eighth Amendment.(12) Moreover, he concluded that capital punishment is unconstitutional on the separate ground that an informed citizenry would find it morally unacceptable.(13)

   Finding that the Eighth Amendment derives from English law and that in borrowing the "cruel and unusual" language the Founding Fathers intended to outlaw torture and other cruel punishments,(14) Marshall turned to the Court's decisions to discover the meaning given to the words "cruel and unusual." According to Marshall, one of the most important principles in the Court's Eighth Amendment jurisprudence was the emphasis on the evolving standard inherent in the cruel and unusual language.(15) Marshall reiterated Chief Justice Warren's statement in Trop v. Dulles(16) that this language "`must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'"(17) In addition, Marshall found the Court's prior decisions replete with statements of concern over the excessiveness of a punishment.(18) From the Court's decisions, he discerned four distinct reasons why a punishment may be deemed cruel and unusual: 1) the punishment involves so much physical pain that civilized society cannot tolerate it; 2) the punishment is previously unknown as a penalty for a particular offense, and thus "unusual," and is not intended to serve a humane purpose;(19) 3) the punishment is excessive and serves no legitimate legislative purpose;(20) and 4) the punishment, although not excessive, is abhorrent to popular sentiment.(21) If capital punishment is unconstitutional, Marshall concluded, it is because it is excessive or unnecessary, or because it is morally unacceptable to the American people.(22)

   1. Excessiveness

      Marshall examined six purposes conceivably served by capital punishment in order to assess whether the death penalty is an excessive penalty. If less severe penalties would satisfy the valid legislative goals, then the death penalty would be unnecessary and thus unconstitutional.(23)

      1. Retribution

         Marshall rejected the notion that retribution may be a state's sole end in punishing. "[T]he Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with vengeance."(24) To allow vengeance alone to serve as a justification for a punishment is to read the "cruel and unusual" language right out of the Constitution.(25) Marshall relied upon language in Weems v. United States,(26) which stated that the purposes of punishment were fulfilled where crime is repressed and reformation of the criminal is achieved.(27) If retribution could be the sole justification for punishment, then every punishment selected by the legislature would be valid as manifesting society's moral outrage at a particular offense. The integrity of the Eighth Amendment, then, would be lost.(28)

      2. Deterrence

         Marshall attempted to show the ineffectiveness of the death penalty as a deterrent by citing statistics purporting to demonstrate the lack of a correlation between the murder rate and the absence or presence of the death sanction.(29) Marshall reminded us that the question with respect to deterrence is not whether the death penalty is a deterrent, but whether it is a better deterrent than life imprisonment.(30) Although conceding problems in the statistical evidence,(31) Marshall concluded that abolitionists had succeeded in showing by clear and convincing evidence that the death penalty is not necessary as a deterrent to crime.(32)

      3. Prevention of Recidivism

         Citing statistics demonstrating an extremely low rate of recidivism for convicted murderers who are released from prison, Marshall argued that since there is no general need to execute all capital offenders, capital punishment, justified solely on the basis of preventing recidivism, would be excessive.(33)

      4. Encouraging Guilty Pleas and Confessions

         If one of the purposes of capital punishment is to encourage guilty pleas and confessions, Marshall noted, then it is at odds with...