Politicizing who dies.

• Author: Garvey, Stephen P.

The modern system of capital punishment and fragments the power to decide who dies.(1) Because the system is composed of multiple actors, no single actor bears the burden of undivided power and responsibility. This division of moral labor tempts actors at the front of the system, such as prosecutors and juries, to convince themselves that later actors will correct any error in judgment they might happen to make. Yet later actors, such as state and federal appellate courts, are in turn disinclined to upset decisions already made and legitimized by a sequence of earlier actors.(2) Where power is divided, responsibility shuffles to and fro in a fatal kind of perpetual motion, never really settling anywhere. In the end, "nobody actually seems to do the killing."(3)

So long as the system's basic architecture remains unaltered, the power to decide who dies will inescapably be dispersed. This Note therefore focuses on the relative distribution of power within the system. It traces how the Supreme Court's decisions in several recent capital cases have channelled power from politically insulated actor to decisionmakers who are politically accountable, who are more apt to respond to political-electoral, not moral, imperatives. Part I details how the Court's modifications in its "evolving standards of decency" doctrine and its new law of retroactivity have diverted to political actors more power to develop the constitutional norms governing the application of the death penalty. Once those norms have been specified, it still remains to be decided who, within the constraints those norms impose, will be chosen to die. Part II maps how the Court's ratification of "quasi-mandatory" statutes and its gradual creation of an "appellate jury" have allocated greater influence to politics to make this decision as well. Finally, Part III explores the constitutional and moral price paid when the power over both norm selection and death selection is assigned to politics.

1. Allocating Norm-Selection Power to Politics

   The Eighth Amendment imposes substantive limitations on whom the states may execute(5) and procedural limitations on how they may select whom to execute.(6) The content of these limitations, however, has come to depend increasingly not on the judgment of the federal courts, but on the verdict of more politically responsive actors.

   1. "Evolving Standards of Decency"

      The role of the courts in capital sentencing is not to pass judgment on the moral appropriateness of the sentence in any particular case. Rather, it is to articulate the federal constitutional norms regulating the death penalty's administration. Among the most important of these norms are those which place limits on whom the state may render eligible for the death penalty. In the past, the Supreme Court itself has assumed a fair share of the authority to articulate these norms. Recently, however, the Court has displayed a noticeable readiness to delegate to the states the power to determine whom the Eighth Amendment immunizes from the death penalty. The vehicle or this trend has been a subtle though significant, modification in the "evolving standards of decency" doctrine,(7) a doctrine the Court has developed to give meaning to the Eighth Amendment's declaration that cruel and unusual punishments shall not be inflicted.

      1. Two Approaches to the Constitutional Meaning of Cruel and Unusual Punishments

         The meaning of the Eighth Amendment's prohibition on cruel and unusual punishments can be extracted using two different approaches. First, it may be interpreted normatively: whether or not the Eighth Amendment prevents the imposition of certain kinds of punishments or prevents the punishment of certain kinds of offenses or offenders must be resolved through moral argument.(8) Following this approach, the demands of the Eighth Amendment depend upon critical morality, and the federal courts assume the burden of deciding what critical morality requires. Alternatively, the Amendment may be interpreted: the content of the ban on cruel and unusual punishments somehow depends on conventional morality, requiring that the federal courts exercise no independent moral judgment, but instead merely specify the criteria by which the requirements of conventional morality are to be ascertained.(9)

      2. A Victory for Positivism

         When the Court first turned its attention toward the Eighth Amendment's bearing on the death penalty, some observers believed that the Cruel and Unusual Punishments Clause would be interpreted normatively,(10) an certain voices in the Court's fractured decision in Furman v. Georgia(11) heightened expectations that this view might eventually prevail.(12) In two recent cases, however, it appears that a solid plurality of the Court has opted instead to pursue a more positivistic approach.(13) In stanford v. Kentucky, (14) the Court concluded that society's evolving standards of decency had not matured to the point where they would foreclose the execution of sixteen-year-olds.(15) Neither, the Court concluded in Penry v. Lynaugh,(16) had they reached the stage where they eclipsed the execution of the retarded.(17)

         Both cases reveal a discernible effort by a plurality of the Court no only to fix the content of the Eighth Amendment by employing objective criteria but, even more importantly, to reduce the range of permissible criteria to one Specifically, a plurality of the Court has resolved that the contours of the Eighth Amendment's ban on cruel and unusual punishment--leavened perhaps with some reference to the behavior of capital sentencing juries--are to be defined exclusively by the enactments of state legislatures.(18) According to Justice Scalia, any indicator of national consensus other than legislative enactments

         provides too uncertain a foundation upon which to ask the Court to rest constitutional law. Underlying this skepticism is the fear that the considered judgment of the Court would be no more than the sum of its members' naked preferences.(19) Any consensus firm enough to warrant the Court's attention must be manifest in state law. For the present, then, Stanford and Penry mean the decisions of state legislators, embodied in state statutes, will be treated as first among equals, as occupying privileged position against other indicia.(20) And should the current plurality crystallize into a majority, legislative enactments most probably will become dispositive. By whatever mechanism our standards of decency evolve, they will evolve independently of enlightenment from the Court.

         Labelling the plurality's approach "revisionist,"(21) Justice Brennan pushed in the opposite direction, trying to expand the range of relevant considerations to include the "views of organizations with expertise in the relevant fields and the choices of governments elsewhether in the world."(22) In addition, he insisted that the plurality's positive needed a normative supplement. Derived from precedent, this supplement would oblige the Court to outlaw any punishment that was disproportionate to the defendant's moral blameworthiness or that served no legitimate penal goal.(23) The plurality's alternative view, justice Brennan predicted, would be the Eighth Amendment's requiem. Like any provision of the Bill of Rights, the Eighth Amendment functions by imposing limits on popular will. The methodology adopted in Standford and Penry, however, threatens to frustrate this function. For under the Standford-Penry approach, the Court has elected to "return the task of defining the contoursoof the Eighth Amendment protection to political majorities."(24) Yet when a constitutional right receives its content from state law, it deteriorates into "little more than good advice."(25)

   2. Retroactivity after Teague

      With its decisions in Stanford and Perry, the Court has quietly ceded to state legislatures much of the power to fix the constitutional norms circumscribing the death penalty's substantive reach. In a parallel development, the Court has, through recent innovations in the law of retroactivity, placed much of the power to mold the federal norms governing the structure of the death-selection process in the hands of state appellate courts. Ordinarily subject to popular selection and retention elections, these courts are more open to political forces than their federal counterparts.

      1. A New Vision of the Great Writ

         In the past, death-sentenced prisoners frequently received relief in federal court on habeas corpus after having exhausted state remedies.(26) Moreover, such relief was often based on Supreme Court decisions announced only after the defendant has completed his direct appeal and his conviction has therefore become final. In Teague v. Lane,(27) a 1987 noncapital case, the Supreme Court dramatically altered the existing habeas regime. Prior to Teague, the Court would announce new rules of criminal procedure in one case and then decide whether or not those rules should be given retroactive effect in either the same case or a later case.(28) In Teague, the Court categorically held, with two narrow exceptions, that new rules of criminal procedure would not be applied retroactively on collateral appeal to any defendant whose conviction had become final before the new rule was announced.(29)

         Explicity extended to capital petitioners in Penry v. Lynaugh,(30) Teague's nonretroactivity doctrine ordained a new understanding on the Court of the function of the Great Writ. During the Warren Court era, habeas became a vehicle for those held under state authority to challenge the constitutionality of their convictions and sentences.(31) This Warren Court vision began to change with the emergence of the Burger Court. No longer a tool to be used by inmates to contest the constitutionality of their confinement, habeas corpus has become instead a device to ensure that state courts comply with federal law at the time they review a defendant's sentence on direct appeal. Like the...