Justifying Capital Punishment in Principle and in Practice: Empirical Evidence of Distortion in Application

• Publication year: 2021

81 Nebraska L. Rev. 805. Justifying Capital Punishment in Principle and in Practice: Empirical Evidence of Distortion in Application

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Justifying Capital Punishment in Principle and in Practice: Empirical Evidence of Distortion in Application

Robert F. Schopp*
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 806
II. Judicial Opinions: Inappropriate Application . . . . . . . . . . 808
A. Justice Blackmun in Callins . . . . . . . . . . 808
B. The Roots in Furman and the 1976 Cases . . . . . 809
C. Principle and Practice. . . . . . . . . . . . . . . . . . . . 811
D. Empirical Evidence. . . . . . . . . . . . . . . . . . . . . . 814
III. CP as Constitutional or Just Only If Applied Precisely . . . . . 815
A. The Initial Argument. . . . . . . . . . . . . . . . . . . . . 815
B. CP Kills People . . . . . . . . . . . . . . . . . . . . . . . 817
IV. Implicit Appeals to the Premise that CP Is Unjust in
Principle. . . . . . . . . . . . . . . . . . . . . . . . . . . . 820
A. Discrimination in CP and in Education . . . . . . . . . . . . 820
B. 'We Shouldn't Be Doing That Anyway' . . . . . . . . . . . . . 822
C. Protecting the Victims of Illegitimate
Discrimination. . . . . . . . . . . . . . . . . . . . . . . . 824
1. Convicted Murderers as the Victims of
Discrimination . . . . . . . . . . . . . . . . . . . . . . 825
2. Justice and Mercy. . . . . . . . . . . . . . . . . . . . . 829
3. Murder Victims and Survivors as the Victims of
Discrimination . . . . . . . . . . . . . . . . . . . . . . 830
V. Distortions in Practice as Undermining the Justification
in Principle . . . . . . . . . . . . . . . . . . . . . . . . . . 833
A. Consequentialist Justification. . . . . . . . . . . . . . . . 833
B. Deontic Justification . . . . . . . . . . . . . . . . . . . . 835
C. Common Pattern of Interpretation. . . . . . . . . . . . . . . 837
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . 837

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I. INTRODUCTION

Some Supreme Court opinions overturn capital sentences or reason that such sentences should be overturned due to inappropriate patterns of application, although the Justices writing these opinions apparently accept capital punishment ("CP") as constitutional in principle. In a widely-recognized opinion, Justice Blackmun announced that he would no longer accept CP as constitutional under the Eighth Amendment by stating, "I no longer shall tinker with the machinery of death."(fn1) He previously accepted CP as constitutional, however, and apparently continued to see it as constitutional in principle.(fn2) Three of five concurring Justices in Furman overturned the capital sentences at issue in that case due to arbitrary or discriminatory application, although they did not contend that CP violates the Constitution in principle.(fn3) Two of these three Justices later upheld CP as constitutional when appropriately applied.(fn4) A fourth Justice in Furman concluded that CP violates the Constitution in principle, but he also concluded that CP violates the Constitution in practice due to discriminatory application. Thus, the reasoning that supports this Justice's conclusion of unconstitutionality in practice is distinct from the reasoning that supports his conclusion of unconstitutionality in principle. (fn5) This series of opinions reflects the general proposition that distortion in application can render CP unconstitutional in practice, independently of the conclusion that it is constitutional or unconstitutional in principle.

Empirical studies can inform the evaluation of CP as constitutional or justified as applied. Such studies pursue systematic descriptive information regarding the manner in which institutions have functioned across the period examined. In this manner, they can reveal descriptive information relevant to a constitutional or justificatory analysis of the specific institutions of CP studied. This information might include, for example, evidence suggesting patterns of sentencing that reflect constitutional criteria, such as culpability, or illegitimate criteria, such as race or socioeconomic status of the victim. Empirical inquiry can also provide information regarding the likelihood of miscarriages of justice by specified criteria or of the failure of procedural matters such as jury comprehension of instructions or competence of represen-

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tation. Such inquiry can provide information regarding the manner in which an institution is currently applied, and this information might contribute to a variety of additional analyses. Empirical evidence might demonstrate the manner and degree in which an institution conforms with or departs from some independently supported principles of justice. Empirical inquiry might provide information regarding the causal factors that promote consistency with, or departures from, these principles of justice. Studies examining comprehension of jury instructions, for example, might reveal failures of comprehension that might explain jury failure to consistently apply legal standards.(fn6) Studies examining the effectiveness of various attempts to render jury instructions more comprehensible might provide information regarding what types of revisions are likely to promote application of CP in a manner that is more consistent with legal standards or with defensible principles of justice.(fn7)

Empirical inquiry in itself cannot provide answers to constitutional or justificatory questions. Empirical data cannot determine, for example, whether CP (or any other human institution) is or is not constitutional in principle or whether it is or is not justified in principle. These matters require constitutional interpretation or analysis of defensible principles of moral justification. Empirical inquiry can contribute to our understanding of the manner in which various institutions function, but it cannot provide the appropriate principles of justice to apply in evaluating such institutions in principle or in practice. Nor can empirical data establish the types or degrees of departure from these principles of justice that are sufficient to render unjustifiable in practice an institution that is justifiable in principle. In short, interpreting the significance of empirical evidence requires integration of that evidence with the constitutional or justificatory analysis.

This Article examines this integration in order to clarify the manner in which empirical data describing an institution in practice can inform the constitutional and justificatory questions. It seeks to clarify the relationship between justification in principle and in practice in order to clarify the manner in which empirical data demonstrating inappropriate application can support either (1) the conclusion that an institution that is constitutional or just in principle should be applied in a more defensible manner, or (2) the conclusion that an institution that is constitutional or just in principle should be abolished as unconstitutional or unjust in practice due to distortions in application. I make no attempt to demonstrate that CP either is or is not constitu-

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tional or just in principle or in practice. Rather, I attempt to clarify the significance and limitations of empirical inquiry for the analysis of the constitutionality or the justification of CP in practice. Part II reviews and clarifies some central judicial opinions that address the significance of distortions in application for constitutionality in practice. Parts III through V address three types of arguments regarding the relationship between constitutionality or justification in principle and in practice that appear explicitly or implicitly in judicial opinions and in the literature. Each of these Parts examines a particular type of argument in order to evaluate the persuasive force of that type of argument and the appropriate role of empirical data in that type of analysis. Part VI concludes the paper.

II. JUDICIAL OPINIONS: INAPPROPRIATE APPLICATION

A. Justice Blackmun in Callins

Justice Blackmun announced that he would "no longer . . . tinker with the machinery of death" approximately twenty years after he dissented from the Court's decision overturning capital sentences under discretionary CP statutes.(fn8) His dissenting opinion in Furman made it clear that although he personally objected to CP and would reject it in a legislative role, he found the claim that it violated the Eighth Amendment unpersuasive.(fn9) Similarly, his concurring opinions in Gregg v. Georgia and the other 1976 cases reaffirmed his view that CP falls within the range of punishments authorized under the Constitution. (fn10) In explaining his conclusion that CP violates the Eighth Amendment of the Constitution twenty years after rejecting that view, Justice Blackmun emphasized the difficulties encountered in attempting to apply CP in an acceptable manner. He reasoned, "The inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution." (fn11) He reasoned that these defects in application render CP unconstitutional because, "it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all."(fn12)

Although Justice Blackmun's opinion in Callins concluded that CP violated the Constitution in practice, he apparently continued to rec-

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ognize CP as constitutional in principle. His discussion of the "fair, consistent, and reliable sentences of death required by the Constitution" (fn13) clearly contemplated circumstances under which the administration of CP would conform to the Constitution. Furthermore, he explicitly recognized the possibility that constitutional administration of CP might someday be...