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July 19, 2018

Another look at how Justice Kennedy shaped capital jurisprudence and what his departure entails

I noted here a few weeks ago a short piece on how death penalty jurisprudence is likely to be impacted considerably by a coming SCOTUS transition, and another longer piece in the same vein now comes from Matt Ford at The New Republic.  The piece is headlined "America Is Stuck With the Death Penalty for (at Least) a Generation," and here are excerpts (with links from the original):

With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles.  In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row prisoners.

“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,” Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but he was also often a fifth vote for determining that a particular death-penalty practice was unconstitutional.”

The high court will likely continue to intervene in death-penalty cases that stray too far from the legal mainstream.  But without Kennedy, it will no longer be the venue for a systemic attack on capital punishment as it had been in recent years.  “It seems likely that there will be a firm, five-person majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who specializes in the death penalty, told me....

With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears death-penalty cases compared to the other federal appellate circuits.

As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar manner, the court’s posture toward the death penalty would shift decisively away from limiting its scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s now whatever Chief Justice Roberts decides that it is,” Dunham said.

Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the 2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too much. “Some toxins are deadly in small doses,” he wrote.

Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of abolition efforts will now turn to the state and local level. “States are really where the story is happening,” she told me. “There are state constitutional challenges that can be brought. Seven state legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that a growing number of district attorneys are declining to seek the death penalty in cases where they otherwise could.

A local focus makes sense given the current geography of capital punishment. Death sentences increasingly come from only a handful of counties scattered across the country. Though state legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down dozens of death sentences have recently seen the election of district attorneys who are more skeptical of it.

For now, the rulings written by Kennedy will continue to mark the outer limits for American executions on a national level—unless the justices of a future generation choose to push them even further. “The law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it wanted to continue this project of reassessing the death penalty and its concordance—or not—with evolving standards of decency,” Steiker said.

Prior related post:

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence 

July 19, 2018 at 08:00 PM | Permalink

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