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July 11, 2015

Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?

The question in the title of this post is prompted by this notable new opinion piece by Scott Lemieux headlined "How a President Hillary Clinton could help end the death penalty." The whole piece is worth a full read, and here are excerpts:

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, in a separate dissent [in the Supreme Court's recent Glossip ruling] concluded: "I believe it highly likely that the death penalty violates the Eighth Amendment." Breyer's dissent is important, leading some to even conclude that the Supreme Court might actually rule that way in the near future. But this probably won't happen unless a Democratic president replaces one of the Republican-appointed justices on the court, which is another reason the Supreme Court will be a top issue in the 2016 presidential race.

A majority of the Supreme Court has never held that the death penalty is categorically unconstitutional — indeed, there have never been more than two justices at any one time who supported this view. In the 1972 case Furman v. Georgia, the Supreme Court suspended executions, but three of the five justices in the majority held that the death penalty would be constitutional if applied fairly. Only two justices — William Brennan and Thurgood Marshall — held that the death penalty was always unconstitutional, a position they held for the rest of their tenures.

Two other justices, Harry Blackmun and John Paul Stevens, wrote opinions shortly before their retirement suggesting that the death penalty might be unconstitutional. But otherwise every justice has supported the compromise the court reached in 1976: The death penalty is constitutional if applied in a more fair and rational manner. It is possible that Breyer's opinion will be seen as a fraying of this compromise and a crucial step towards a ruling that the death penalty is unconstitutional. But if so, it is likely to be a process that plays out over a fairly long period.

At Slate, Robert J. Smith gives the most optimistic reading of Breyer's dissent from the perspective of death penalty opponents, suggesting that there might be five votes on the current court to abolish the death penalty. His argument is superficially persuasive ...[but] fails to withstand scrutiny.... Glossip itself provides powerful evidence against this possibility. Among other things, Justice Samuel Alito's majority opinion represents a sort of obscene gesture to death penalty opponents: "If you use legal methods to prevent states from carrying out a particular form of execution, it therefore has the right to carry out less humane ones." This is nothing less than a justification for torture. It is very hard to imagine someone who opposes the death penalty in principle joining this opinion, which is exactly what Kennedy did.

It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.

The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer's opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment's ban on cruel and unusual punishments.

But there's a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.

Breyer's dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it's ever had.

Prior related post:

July 11, 2015 at 01:26 PM | Permalink


Bruce. Would appreciate a candid opinion. Supreme Court ends the death penAlty. You are let go. Which decision do you support? End or continue the death penalty.

Posted by: Supremacy Claus | Jul 11, 2015 2:11:28 PM

Thou Shalt Not Kill.

If you are on a jury and you vote to kill a human then when your time comes and you get your interview at the Pearly Gates you will run into Bill Gates. You will get sent to Hell in a hand basket. When you get there it will be hot as hell. The skin will all come off of your corpus and you will be left with dementis. The fires burn until second judgment day. Then they may send you to Limbo which is a suburb of Saint Louis called Florissant. So remember these things if you get called for jury duty in a death penalty case.

Posted by: Liberty1st | Jul 11, 2015 4:57:22 PM

Once again, the Sixth Commandment prohibits Murder, the unlawful taking of a human life. The Bible was filled with commandments from God to kill enemies down to the innocent animals they owned. Killing, good, as in the execution of 10,000 violent criminals and members of the lawyer hierarchy each year. Murder, bad, such as giving a prisoner LWOP with the knowledge he will kill again.

Your anti-death penalty orthodoxy is a major factor in our appalling crime rate, including our 14000 murders. You are collaborator with the murderers, and morally reprehensible. You are the one going to hell for your support of mass murders years in years out, especially of blacks. You are a racist, devaluing the black murder victim.

Repent before it is too late. Get down on your knees, and beg for forgiveness from the deceased victims of murder.

Posted by: Supremacy Claus | Jul 11, 2015 8:04:23 PM

If the Supreme Court abolishes the death penalty, the states should simply ignore the order and execute anyway.

Posted by: federalist | Jul 11, 2015 9:40:52 PM

I do not like the DP. That said, how can anyone say with a straight face that it is always unconstitutional when the actual text provides for it? To me, that is like saying Freedom of Speech is unconstitutional.

Posted by: scott | Jul 11, 2015 9:46:33 PM

Mr. Claus, you keep going off about these murdering lifers. In the latest statistics I could find, 2001-2002 (BJS), pretty much every single inmate homicide occurred in jurisdictions with capital punishment. Basically none in abolitionist jurisdictions.

It would suggest that inmate homicide is much more the result of a culture of death and brutality than a lack of deterrence. Do you have any evidence or reason to believe otherwise?

Posted by: Boffin | Jul 11, 2015 10:57:41 PM

"when the actual text provides for it?"

The "actual text" says "or be deprived of life, liberty, or property, without due process of law" ... if the process used is not "due," it is unconstitutional. Also, "nor cruel and unusual punishments inflicted." If the penalty is being applied in a way that is cruel and unusual, again it would be unconstitutional.

So, yes, people can say with a "straight face" that the death penalty, especially as applied at this time, can be unconstitutional.

Posted by: Joe | Jul 12, 2015 1:43:01 AM

"like saying Freedom of Speech is unconstitutional"

Be more comparable if there was a "freedom to execute" clause; instead there is a provision regarding grand juries for capital cases, the only provision in the BOR explicitly addressing "capital" punishment. (The state can deprive life in various ways such as use of lethal force.) And, that provision hasn't even been applied to the states.

The Grand Jury Clause doesn't just deal with capital crimes but "infamous" ones. If the underlining crime is held to be unconstitutionally vague, it will be struck down. The jury provision not applicable. Same here.

Posted by: Joe | Jul 12, 2015 1:53:19 AM

Doug, do you think the Question Presented in Hurst v Florida , "does Florida's death penalty statute violate the Sixth or Eighth Amendment" has gotten more interesting??


Posted by: bruce cunningham | Jul 12, 2015 10:01:28 AM

Boffin. Yes. There is no deterrence. If there were it would violate Fifth Amendment due process. You cannot punish someone to scare someone he has never met, has no control over, for a crime that has not taken place, and may never do so.

It is far simpler than that. The deceased are not violent.

I am interested in your original data for your assertion. It will make no difference to the basic truism, but I just want to verify it.

Posted by: Supremacy Claus | Jul 12, 2015 3:19:29 PM

The data I was looking at is 2001-2002:
Bureau of Justice Statistics, Suicide and Homicide in State Prisons and Local Jails

More recent data in Bureau of Justice Statistics, Prison and Jail Deaths in Custody,
2000-2009 - Statistical Tables

It's surprising that better and more recent data is not available, particularly with the improved reporting mandated by the Death in Custody Act of 2000.

As I understand, you are making a case that abolition or restrictions on capital punishment are irresponsible, since there is no other deterrent to murder by lifers. My observation is that homicide rates are lower in abolitionist jurisdictions. We shall see if rates go up or down in New York, Illinois, Maryland, etc.

Posted by: Boffin | Jul 12, 2015 9:24:18 PM

take a look at the briefs filed in the Death Warrant case of Jerry Correll at the FSC after Glossip was decided. Interesting points of view from the state and Correll's counsel.

Posted by: DaveP | Jul 15, 2015 4:57:34 PM

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