The Roberts Court and the death penalty code.

• Author: Broughton, J. Richard

I.

The Lion in Winter (1) is a brilliant tale of the deception and treachery that accompanies King Henry II's effort to name the successor to his empire. In one scene, Princes (and brothers) Richard and Geoffrey wait in the dungeon for their father, Henry II, to arrive and kill them. Richard says to Geoffrey, "He's here. He'll get no satisfaction out of me. He isn't going to see me beg." (2) Incredulous and annoyed by Richard's priorities at the moment of their demise, Geoffrey says, "You chivalric fool. As if the way one fell down mattered." (3) To this, Richard responds, "When the fall is all there is, it matters." (4)

Punishment constitutes the fall in America's criminal law jurisprudence--when the government has used its coercive powers to bring the moral condemnation of the community upon an individual--and it matters. How we punish, whom we punish, and why we punish speaks a great deal about our political community: our dedication to justice, our political morality, and our sense of responsibility and accountability is a critical element of our humanity. (5) This is especially true of the death penalty. We also see it in the stories that emerge from a criminal justice system that inflicts this kind of punishment. Defense lawyers and abolitionists eloquently speak of the personal stories that accompany the death penalty. The stories are of courageous, often misunderstood, souls caught inside and battling against an unfair legal machinery that is both woefully insensitive to claims of mercy and humanity and ignorant of its own shortcomings. (6) Too often overlooked, too often marginalized, however, are the stories on the other side, the narrative that accompanies the all-too-real experiences of real people victimized, and communities subjugated, by violent crime. Theirs are stories of loss and suffering, of lives spent dwelling in the shadows of gunmen, and of hope for justice. They remind us of the responsibility of a political society and of political authority to carefully but surely bring its moral condemnation upon the wicked. The capital prosecutor, as the political authority's advocate, tells these stories, and in doing so, does more than simply wield a majoritarian sword against wickedness; he also gives voice to those now speechless, united in a silent accord. (7)

Whether one supports or opposes the death penalty, there can be little doubt that there remains great value in continuing our national dialogue about the fall that is condemnation through the criminal law and punishment by death. It matters.

It matters also because criminal and penal laws are institutional and moral manifestations of our need and efforts to control the people. We neglect--or in fact choose not--to talk about this anymore, this controlling the people; at least we do not talk about it in precisely those terms. It is easy to understand why. Our politics are to a significant extent rights-oriented, and many of the philosophical origins of our constitutional system are based in certain strands of early modern political thought, which posited that we entered civil society not so that Government could save our souls, but to protect our rights--our lives, our liberties, and our property. (8) We often forget, however, that an important corollary for such security is the preservation of a tolerable civil social order in which certain socially harmful conduct must be met by the reasoned condemnation of the political community. Our constitutional framework may have been conceived amidst the claims of the modern science of politics, but it did not abandon the understanding of the ancients, the understanding that tragedy is an omnipresent element of political life. Humans are weak, flawed, and often dangerous to their fellow citizens and to the state.

This understanding was not lost upon the Founding generation, which attempted to place the claims of liberty and the claims of authority at a proper equilibrium. Remember Madison's observation in Federalist #51, that "if men were angels, no government would be necessary." (9) Madison believed that before the Government can turn its attention to the critical task of controlling itself, the Government must first control the governed. (10) Madison and other leading Founders understood, as we must, the historical fragility of republics that did not properly balance order and liberty in constituting their political communities.

Controlling the people within a tolerable, reasoned order thus sometimes demands that the Government punish the people harshly for committing particularly serious crimes against the political community, including punishing offenders by death. (11) Congress has enacted, and various Presidents have signed into law, statutes that provide capital punishment for certain serious offenses. (12) The United States, via a personal opinion of the Attorney General, may only seek the death penalty in a federal civilian prosecution after a rigorous internal review of potential capital cases by the Department of Justice. In advising the Attorney General as to whether to authorize a capital prosecution, experienced prosecutors consider the facts and circumstances of the crime and the background of each individual defendant, including, among other things, the strength of the evidence and the weight of available aggravating and mitigating factors. (13) This process, in which the government actually invites the defense's participation and assistance, is designed to ensure fairness and uniformity in the government's application of the death penalty. The government that I represent, and the laws that I help to faithfully execute, recognize that capital punishment, along with appropriate protections for the accused, is necessary to the control of the governed and to the preservation of tolerable, ordered liberty in America.

In the last three decades, however, the judiciary, especially the Supreme Court, has played an increasingly prominent role in checking the power of the government to control the governed through the imposition of capital punishment. (14) Opponents of capital punishment have often times used litigation as a means to limit the death penalty, and courts have too often served as willing participants in this effort. (15) I use the term "too often" not because courts should have no role in reviewing the constitutional boundaries of applying the death penalty, (16) but rather because the nature and scope of the judiciary's modern role in capital litigation has in many instances ventured beyond the circumscribed forms of judicial power contemplated by constitutional text, structure, and history. (17) Instead, the result has been decisions that are so unconnected to the text of the Eighth Amendment, and so riddled with confusing distinctions, questionable premises, and competing aims unhinged from relevant constitutional principles, (18) that the decisions have appeared as little more than the policy preferences of the judges themselves regarding the most desirable substantive and procedural limits on capital prosecution. The result is a body of judicial pronouncements amounting to the crafting of a Death Penalty Code. If one doubts this conclusion, then consider that the Court has actually told us that what matters most is not objective indicia of societal attitudes toward the death penalty, nor the acceptance or rejection of certain traditions and practices in the realm of criminal punishment, but rather the Court's own independent judgment about the acceptability of the death penalty under the Eighth Amendment. (19)

In the 1950's and 60's, the Warren Court used its power of judicial review to explicate new constitutional norms in criminal justice, (20) but even then challenges to the death penalty repeatedly failed. It was not until the Burger Court that constitutional challenges to the death penalty gained momentum, and it was the Burger Court where the Court's Death Penalty Code received its initial drafting. (21) The Rehnquist Court made substantial headway in restoring broad constitutional balance in the Court's criminal justice jurisprudence, (22) but its capital punishment jurisprudence left us with few firm answers about the precise scope and meaning of the constitutional limits to the death penalty. (23) It is that body of law--some of it admittedly unpredictable and messy, as both constitutional adjudication and legislative draftsmanship can sometimes be--that the Roberts Court has inherited. It therefore remains to be seen whether the Roberts Court will restore coherence to capital jurisprudence.

II.

If the first two terms of the Roberts Court are an accurate indication of what to expect in the near future, perhaps it is safe to say that we can expect the Court's schizophrenic approach to capital punishment to continue unabated.

Much recent commentary from the mainstream media, as well as from legal analysts, has been devoted to advancing the proposition that the Roberts Court has taken a sharp turn to the political and jurisprudential right. (24) It is hard to deny that the Court has seized important moments of judicial conservatism in the past two terms, such as upholding the federal ban on partial-birth abortions and restricting the authority of school districts to use racial identity as a factor in determining where a student will obtain his or her public secondary education. (25) But even assuming that conservatives have found some pleasure in the work of the Roberts Court, the notion that the Roberts Court's decisions have been uniformly, or even predominantly, conservative is sheer mythology. And the Court's capital cases feature prominently in rebutting the myth.

In its first two terms, the Roberts Court upheld death sentences in five important cases, three of which involved subject matter specific to capital sentencing. In Kansas v. Marsh, the Court upheld the Kansas death penalty statute, which provided for imposition of the death penalty...