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December 27, 2016

New York Times made yet another editorial pitch for judicial abolition of the death penalty

Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:

Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January.  The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.

The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.

Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment.  Twenty people were executed this year, the lowest number in a quarter-century.

The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.

Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole.  Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.

The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments.  So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question....  Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.

December 27, 2016 at 07:26 PM | Permalink

Comments

Kentucky has only executed 5 people since 1953! 2 of the last 3 people executed in Ky. withdrew their appeals and demanded to be put to death. In 2011, a man who had been on Ky.'s death row since 1983 died of cancer. There are only about 35 people on Kentucky's death row. Interestingly, an ABA study revealed that more than half of Kentucky's death sentences are reversed on appeal or via habeas corpus.

Posted by: Jim Gormley | Dec 27, 2016 7:30:12 PM

Kentucky has only executed 5 people since 1953! 2 of the last 3 people executed in Ky. withdrew their appeals and demanded to be put to death. In 2011, a man who had been on Ky.'s death row since 1983 died of cancer. There are only about 35 people on Kentucky's death row. Interestingly, an ABA study revealed that more than half of Kentucky's death sentences are reversed on appeal or via habeas corpus.

Posted by: Jim Gormley | Dec 27, 2016 7:30:13 PM

"So far, only one current member of the court, Justice Stephen Breyer"

RBG is on the phone ...

The USSC has helped the effort in narrowing the class of people executed. I wonder if there is any more avenues there with some staying power. The federalism argument (if a state doesn't authorize, the federal government cannot apply it in that state) doesn't work for me. And, probably will only affect a handful.

Posted by: Joe | Dec 27, 2016 7:35:39 PM

Oregon hasn't executed anyone since 1997, and that was because the inmates, Harry Charles Moore, and Douglas Wright chose to drop their appeals. The current governor has continued the previous governor's halt to executions. (There are currently 35 folks on Oregon's death row).

Posted by: Michael R. Levine | Dec 27, 2016 7:37:33 PM

The NY Times does not understand, but the readers here do.

The Supreme Court will maintain the multi-$billion death penalty appellate racket for the foreseeable future.

The current state of the death penalty serves no other possible purpose.

Once abolished, hundreds of jobs will be immediately abolished.

Half the violent criminals already die young of murders, of overdoses, accidental and suicidal, of accidents, or of lifestyle based communicable diseases.

Posted by: David Behar | Dec 27, 2016 11:56:02 PM

Despite the way this article tries to paint it, the death penalty continues to be supported (at least abstractly). The failed attempts at abolishing it are clear examples of this. This is why this article, in spite of its claims, is calling for a judicial abolition. The problem is, as flawed as the system is (and I think it's horribly flawed), it's extremely difficult to square the text of the Constitution with a per se argument of unconstitutionality.

Posted by: Erik M | Dec 28, 2016 8:54:05 AM

Erik - they've done it once, they can do it again. It's not a big leap.

Posted by: peter | Dec 28, 2016 9:44:41 AM

David Behar, I would like to respectfully remind you that Professor Berman's blog is a very useful resource for professionals in the legal field. We rely on it for much information on current sentencing news around the country.

If you are not the unmasked Supremacy Claus, you are certainly his/her disciple, and we have heard all of the points you make before.

You are certainly entitled to your views about things, but they are not helpful to the difficult work that most of us on the listserve do. Hopefully, you will be considerate of Prof. Berman's effort and the value we gain from his hard work, and take your opinions elsewhere.

Thank you for considering my request.

Bruce Cunningham

Posted by: bruce cunningham | Dec 28, 2016 12:43:51 PM

"it's extremely difficult to square the text of the Constitution with a per se argument of unconstitutionality"

Multiple justices alone have done so and I don't think it's that hard.

The 5A provides a procedure that assumed when ratified that there is a death penalty. One aspect (grand jury) hasn't even been deemed necessary for states. But, it isn't a grant of power. The assumption threats to "limbs" is allowed also didn't stop constitutional arguments against whipping etc. Over time, due process overall could be found to be violated per how the death penalty is being applied. A few people THEN (such as Benjamin Rush) found the death penalty violation of constitutional norms including republican government. Finally, multiple later amendments made the death penalty, including over time, problematic.

Peter's comment seems to refer to Furman. The judgment there to some seemed like a "per se" argument in result but it wasn't. Two or three judges in effect made procedural arguments and the two still on the Court a few years later deemed state laws passed to address them adequate in various ways.

Posted by: Joe | Dec 28, 2016 2:23:55 PM

Bruce. My views are based on history. As mentioned elsewhere, the death penalty was abolished before. The ban resulted in lawyer unemployment. The death penalty returned. It almost never happens. It is very expensive. The number of executions is too small, is too late, is too expensive to have any effect on crime. So, the Supreme Court has perfected it for its real purpose.

Posted by: David Behar | Dec 28, 2016 3:53:29 PM

The problem with Furman (which is a case everyone on all side of the spectrum should read) is the fact that it didn't last. It added up all the problems with the death penalty. It found it cruel and unusual in its application, but the overwhelming backlash against the case (always a problem when they look to contemporary usage to determine if something is cruel and unusual) convinced enough judges to allow it back in some form. That form they allowed has steadily eroded to create some of the same issues. If getting struck by lightning is cruel and unusual, our current system is as well. But I do think application arguments work better than per se arguments if we're trying to create an organized framework of Constitutional law and not just substituting personal opinions.

Posted by: Erik M | Dec 28, 2016 4:00:43 PM

Bruce. The Supremacy handed you compelling defense arguments, as well, as criticism. Is there a reason no one on your side has ever tried them?

1) The biggest cruelty of the death penalty is the announced date and time to the minute. How would you like to live for years with that knowledge, and to start a precise countdown to your own death? Nasty.

2) The words, deterrence and message, are unconstitutional. They are used to justify a punishment that prevents crimes by people the defendant has never met, who may not yet be born, over whom he has no control, and who do not care about him. Unfair, and ineffective.

3) Retribution is from religious books, and violates the Establishment Clause.

Posted by: David Behar | Dec 28, 2016 4:17:09 PM

After citing what the petitioners were convicted for, the "opinion" of Furman v. Georgia, in full, said this:

"Certiorari was granted limited to the following question:

Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings."

Then, each justice separately (four dissenting) wrote opinions. The "backlash" was to the idea that the majority required the end of the death penalty. But, that was not really what it said. Justice White provided the fifth vote. He surely didn't think the death penalty per se was unconstitutional. Justice Douglas retired a few years later and Justice Stewart joined his replacement and Powell (who dissented in Furman) to uphold some of the laws passed in response to Furman that put forth additional safeguards. The mandatory death penalty route -- which satisfied White -- was rejected.

Net, Furman seems to have been beneficial by requiring more safeguards, though those provided were shown not to be enough. At least, so some think.

Posted by: Joe | Dec 29, 2016 1:14:57 PM

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