THE LAW OF ABOLITION.

• Author: Barry, Kevin M.
• Position: The Death Penalty's Numbered Days?

Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history's demands.

When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, for the first time and all in one place, the opinions of judges who have advocated abolition of the death penalty over the past half-century, and suggests, through this "law of abolition," what a Supreme Court decision invalidating the death penalty might look like. Although no one can know for sure how history will judge the death penalty, odds are good that the death penalty will come to be seen as one of the worst indignities our nation has ever known and that a Supreme Court decision abolishing it will, in time, be widely accepted as right.

TABLE OF CONTENTS INTRODUCTION 522 I. THE DEATH PENALTY'S NUMBERED DAYS 523 A. De Facto Abolition 524 B. Human Rights Linkage 526 C. Leadership from the Front 529 II. THE LAW OF ABOLITION 534 A. The Reasons for Judicial Abolition 534 B. The History of Judicial Abolition 535 1. Abolition and Revival: 1971-1976 537 2. Abolition Post-Gregg: 1977-1990 540 3. North, South, and the Federal Courts: 1994-2015 543 4. Honorable Mention 551 III. THE RIGHT SIDE OF HISTORY 556 IV. CONCLUSION 558 INTRODUCTION

In an influential book written over thirty years ago, Professors Franklin Zimring and Gordon Hawkins identified three common themes that have characterized the abolition of the death penalty throughout the Western world: (1) a sustained period of de facto abolition; (2) a recognition by those in government that the death penalty is a "human rights issue" rather than an individual, criminal justice issue; and (3) a willingness of those in government to defy the weight of public opinion. (1) According to Zimring and Hawkins, these common themes are not part of a single coordinated international strategy or the conscious appropriation of tactics that have proved successful in other countries that have abolished the death penalty. (2) Instead, the commonality is unconscious; it is "simply... how the abolition of capital punishment happens in modern democracies." (3) The question, then, is not whether the U.S. will join the ranks of abolitionist nations, but rather when. Applying Zimring and Hawkins's three themes, the answer hinges on the willingness of the U.S. Supreme Court to act against the weight of public opinion and live up to history's demands. (4)

When the U.S. Supreme Court abolishes the death penalty, it will not be going it alone. Indeed, for over a half-century, at least thirty-five federal and state judges have concluded that the death penalty is unconstitutional per se. (5) And they have done so for remarkably similar reasons--namely, objective criteria detailing the death penalty's unacceptability to contemporary society, the subjective determination that the death penalty no longer serves any legitimate penological purpose, and a recognition that the death penalty violates human dignity. (6) Taken together, these decisions form a coherent body of law--the "law of abolition"--on which the Supreme Court should rely.

Part I of this Essay discusses why abolition depends upon the Supreme Court's willingness to defy public opinion. Part II compiles and analyzes those judicial opinions advocating abolition of the death penalty, and suggests, through this "law of abolition," what a Supreme Court decision invalidating the death penalty might look like. Part III argues that a Supreme Court decision abolishing the death penalty will, in time, be widely accepted as right. Part IV offers some concluding remarks.

1. THE DEATH PENALTY'S NUMBERED DAYS

   In their 1986 book, Capital Punishment and the American Agenda, Professors Zimring and Hawkins boldly predicted U.S. abolition of the death penalty in the early part of the twenty-first century: (7)

   [Abolition] will not happen as a consequence of a major decline in the rate of violent crime .... It will not happen because of a dramatic abatement in the ideological conflict between the proponents of hard-and soft-line approaches to crime control policy. Nor will it occur because of research findings that would constitute proof that the death penalty is no more a deterrent to murder than is imprisonment [or]... because of a single precipitating event--for example, the execution of an individual subsequently proved innocent. (8) Instead, Zimring and Hawkins argued, U.S. abolition will come about in much the same way it has come about in the rest of the Western world--when three themes are present. First, there will be a sustained period of de facto abolition, represented by a diminution in death sentences and a lack of actual executions in a majority of states. (9) Second, among at least some of those in government, there will be a recognition of what Zimring and Hawkins call "[t]he human rights linkage"--that is, the understanding that the death penalty is a human rights issue rather than solely a criminal justice issue committed to the sovereignty of individual states. (10) And third, there will be leaders in government willing to defy the weight of public opinion. (11) Applying these three themes, abolition hinges on the Supreme Court's willingness to lead--not follow--public opinion.

   1. DE FACTO ABOLITION

      Historically speaking, countries seldom give up their death penalties cold turkey. (12) Instead, "a lengthy transition period between the end of executions and the formal repudiation of all capital punishment" is generally required. (13) This is especially true for countries with federalist governments, where the gap between the first and last abolitionist jurisdiction is often decades-long. (14)

      This transition appears to be underway in the U.S. Over the past two decades, the death penalty has lost much of the acceptance it once enjoyed. Nineteen states have abolished the death penalty de jure by either legislatively repealing death penalty statutes or judicially abolishing the death penalty. (15) Eleven more states have abolished the death penalty de facto; they have not executed anyone in a decade or more. (16) All told, thirty states--nearly two-thirds of the country--have turned their backs on the death penalty. (17)

      Although twenty states with the death penalty have imposed the death penalty in the past decade, the number of executions nationwide has steadily declined. (18) In 2016, there were only twenty executions--a twenty-five-year low. (19) With the exception of two executions in Alabama and one each in Florida and Missouri, all of those executions occurred in just two states: Georgia and Texas. (20) Prior years have followed a similar pattern. In 2015, there were twenty-eight executions, all but two of which occurred in Florida, Georgia, Missouri, and Texas. (21) And in 2014, there were thirty-five executions, all but five of which occurred in the same four states. (22) The death penalty's symphony of support has been reduced to a lonely quartet.

      The death penalty's overwhelming loss of acceptance is confirmed by a nationwide drop in new death sentences--from modern era highs of more than 300 annually in the mid-1990s to modern era lows of eighty-five or fewer since 2011, culminating in a forty-year low of just thirty death sentences in 2016. (23) The 2016 ouster of prosecutors in four of the sixteen counties that impose the most death sentences in the U.S., and the election of prosecutors who oppose the death penalty or have pledged to reform their county's death penalty practices, supports this conclusion. (24) So, too, does the reelection of Washington Governor Jay Inslee, who imposed a moratorium on executions in 2014. (25)

   2. HUMAN RIGHTS LINKAGE

      As of 2016, 104 countries--over half of the world--have abolished the death penalty for all crimes. (26) Seven more countries have abolished the death penalty for all "ordinary crimes" and another thirty have not executed anyone over the past decade, yielding a total of 141 abolitionist countries, or well over two-thirds of the world. (27) Only fifty-seven countries retain the death penalty, and only five countries other than the U.S. use it with it any frequency: China, Iran, Iraq, Saudi Arabia, and Pakistan. (28)

      A centerpiece of the worldwide evolution away from the death penalty has been the emergence of international human rights law and its commitment to "the protection of citizens from the power of the state and the tyranny of the opinions of the masses." (29) Over the past twenty-five years, numerous international human rights instruments have transformed the use of the death penalty from an issue of state sovereignty--one "decided solely or mainly as an aspect of national criminal justice policy"--to "a fundamental violation of human rights: not only the right to life but the right to be free of excessive, repressive, and tortuous punishments." (30)

      This human rights linkage has informed the U.S. Supreme Court's death penalty jurisprudence. Although the Court has eschewed reliance on international human rights norms, it has not ignored them. (31) In recent death penalty decisions, the Court has found support in the practices of the world community, which, in turn, rely on international human rights law. (32) For example, in Roper v. Simmons, the Court supported its prohibition of the death penalty for crimes committed by juveniles by stating that "the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." (33) Similarly, in Atkins v. Virginia, the Court prohibited the death penalty for...