Repudiating death.

• Author: Berry, William W., III

1. INTRODUCTION

   "In order to learn, one must change one's mind."

   --Orson Scott Card

   It is a rare occurrence for a Supreme Court Justice to reverse his or her stance on a particular issue. And yet, that is what has happened with three Justices' views as to the use of capital punishment in the United States. All three had voted to uphold capital punishment as constitutional under the Eighth Amendment beginning in the 1970s, and one by one, most recently in 2008, each concluded that capital punishment should be abolished after twenty years of deciding capital cases on the United States Supreme Court. (1)

   First, there was the repudiation of the use of the death penalty by Justice Lewis Powell, who dissented in Furman v. Georgia, (2) voted with the three-Justice plurality in Gregg v. Georgia, (3) and authored the majority opinion in McCleskey v. Kemp. (4) During a conversation with his former law clerk John Jeffries in the summer of 1991, retired Justice Powell was asked whether he would change his vote in any prior case. (5) Their conversation went as follows:

   "Yes, McCleskey v. Kemp." (6)

   "Do you mean you would now accept the argument from statistics?"

   "No, I would vote the other way in any capital case."

   "In any capital case?"

   "Yes."

   "Even in Furman v. Georgia?"

   "Yes. I have come to think that capital punishment should be abolished.'' (7)

   Justice Harry Blackmun followed in Justice Powell's footsteps in 1994, when he likewise concluded that the death penalty should be abolished. Like Justice Powell, Justice Blackmun had been a dissenter in Furman (8) and concurred in Gregg. (9) Just weeks before he retired from the Supreme Court in 1994, Justice Blackmun dissented to the denial of certiorari in Callins v. Collins, and in doing so, wrote:

   From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. (10) As with Justices Powell and Blackmun, Justice John Paul Stevens reached the conclusion that the death penalty should be abolished. Justice Stevens was not on the Court at the time of Furman, but joined with Justice Powell in the three-Justice plurality that wrote Gregg. (11) Nonetheless, in Baze v. Rees, (12) decided in June 2008, Justice Stevens wrote the following in his concurrence:

   In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment. (13) It is clear that Justices Powell, Blackmun, and Stevens believe that the Furman experiment--that is, the Court's attempt, beginning in Gregg, to remedy the constitutional flaws of capital punishment--has failed. But, there has been no systematic attempt to explore how and why each Justice reached the same conclusion and the degree to which these rationales relate to each other. This Article attempts to fill that void in several ways.

   First, this Article conceptualizes these reversals not as normative shifts on the morality of capital punishment, but instead as shifts in the Justices' views concerning judicial restraint towards the states with respect to the death penalty. (14)

   Two separate decisions comprise the Justices' abandonment of judicial restraint. Justices Powell, Blackmun, and Stevens first all acquiesce to the decision of the Court to use the Eighth Amendment to regulate the states' administration of capital punishment. Later, each of the three Justices separately advocates interpreting the Eighth Amendment to prohibit the states' use of the death penalty entirely. This Article argues that both of these decisions to abandon deference to the states reflect, on the part of Justices Powell, Blackmun, and Stevens, a diminishing view of the Court's duty to exercise judicial restraint with respect to state legislatures and their use of the death penalty.

   In addition to explaining why their respective rejections of the death penalty were institutional (and not moral) choices, the Article argues that these repudiations were the inevitable consequence of the initial decision to use the Eighth Amendment to regulate the death penalty. The experience of these Justices and the Court over the past thirty-five years demonstrates the extreme difficulty in interpreting and applying the Eighth Amendment in a manner that ensures that states' administration of the death penalty is fair and non-arbitrary. When one premises his support of capital punishment upon the notion that the application of the Eighth Amendment can achieve these goals, as Justices Powell, Blackmun, and Stevens did, the futility of trying to correct the myriad of problems with the states' use of the death penalty leads to the conclusion that no fruitful remedy exists other than abolishing capital punishment.

   Part II of the Article outlines the Court's doctrines of judicial restraint and frames the two separate decisions to abandon judicial restraint in the context of the Eighth Amendment. Part III traces the two shifts in each Justice's conception of judicial restraint: (1) the shift from a view of complete deference to the states' use of the death penalty to one of regulating its use, and (2) the shift from regulating the states' use of the death penalty to a view that the Court should abolish the use of the death penalty by the states altogether. Finally, Part IV explains why the conclusion that the death penalty should be abolished was an inevitable consequence of the Justices' initial decision to constitutionalize the death penalty.

2. JUDICIAL RESTRAINT IN CAPITAL CASES

   "For nowadays, restraint gets you friends, honesty gets you hated."

   --Terence

   1. THE PRINCIPLE OF JUDICIAL RESTRAINT

      Since Marbury v. Madison (15) established that the Supreme Court had the primary responsibility of interpreting the Constitution, the Court has grappled with the concept of judicial restraint. (16) The Court has been hesitant, in theory, to interpret the Constitution in such a way as to substitute its own judgment for that of the state legislatures or the Congress, particularly when applying open-ended and ambiguous constitutional language. (17) In its cases, the Court has articulated several canons of interpretation that counsel against both constitutionalizing an issue in the first place and against deciding constitutional questions unless it is absolutely necessary to do so. (18)

      Thus, despite the presence of the Supremacy Clause and the holding of Marbury, the Supreme Court has placed value on the concept of judicial restraint in its application of the Constitution to state and federal statutes. (19) Justice Black perhaps best summarized this sentiment in his Griswold v. Connecticut dissent:

      While I completely subscribe to the holding of Marbury v. Madison and subsequent cases, that out Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of"civilized standards of conduct." (20) In other words, at least for purposes of this Article, judicial restraint means interpreting the Constitution in such a way so as not to prohibit the exercise of power by state legislatures unless such an exercise clearly contravenes the Constitution. (21) Accordingly, this Article considers judicial restraint in the manner that Powell, Blackmun, and Stevens do in the capital context--only with reference to either the decision to use the Constitution to regulate the exercise of power by state legislatures or the decision to prohibit such an exercise altogether. (22)

      Further, the concept of judicial restraint requires the Justices to put aside their own political views when assessing the constitutionality of a state statute. The concern, of course, is that Justices will use various constitutional interpretive methods as a pretext for overriding the will of the majority, as expressed through the state legislatures, where the Justice has a philosophical or moral (as opposed to constitutional) problem with the statute. (23)

   2. JUDICIAL RESTRA1NT AND THE EIGHTH AMENDMENT: AN OVERVIEW

      In the Eighth Amendment context, the concept of judicial restraint as herein construed refers to two thresholds. The first is the decision to constitutionalize the death penalty in the first place, and make its use by the states subject to constitutional restrictions (as interpreted by the Court). In other words, the first opportunity for the Justices to restrain themselves is to avoid applying the Eighth Amendment to capital punishment at all, and allow state legislatures alone to regulate its...