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November 3, 2017

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 at 12:35 AM | Permalink


I met that asshole at a party. I can attest, he is a Harvard Law radicalized moron. He did not know shit about the real nature of the legal profession, nor about Barack Obama. He said, he knew Obama would be President upon his arrival at the treason indoctrination camp. He was The One. I thought I had entered The Matrix, when this asshole started talking about Obama.

Posted by: David Behar | Nov 3, 2017 1:18:06 AM

"I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty."

The people who are fighting these battles repeatedly have bigger game, concerned about inherent problems in the criminal justice system itself.

Yes, taking of a life is seen as special here, which is far from surprising in my view. Murder is treated differently than other crimes, even horrible crimes, by the average person too. It doesn't "strike" me personally this is true, that the average person [except in special circumstances, perhaps, such as raping a child] thinks the death penalty should only be given to murderers. Only murderers.

Also, the small number of cases involved as well as the special problems that arise specifically when murder is involved does make the death penalty special. But, even there, those against the death penalty didn't only focus on that. William Brennan and Thurgood Marshall surely didn't only think the death penalty was an illegitimate punishment.

Anyway, even before the current election, I had my doubts the death penalty was on its way out. Like "The Lottery," there appears to be a general belief that we need a certain small number, in practice somewhat random, of executions. The problems continue, like other areas [e.g., the problems with the criminalization of drugs, particularly certain ones], but there is no cause to end it. Society overall accepts a certain level of arbitrariness and injustice.

Posted by: Joe | Nov 3, 2017 10:59:35 AM

Yes, the arguments against the death penalty could, and probably should, be applied to the entire "justice system." The difference with the death penalty is its finality. We can at least hope for amends of lesser mistakes.

Posted by: Vernon Huffman | Nov 3, 2017 2:48:32 PM

What is the death penalty for?
If the death penalty is good for something, why civilized world left it decades, when not centuries ago? and why only the United States is using it?
And, if capital punishment satisfies any undeniable social or moral purposes, why right in the United States we find the most ancient abolitionist jurisdiction? And why in the very America there are other eleven states which abandoned it decades, when not centuries ago?
And why, if capital punishment is such an unquestionable instrument of justice, it is restricted in a very little number of American states and counties?
So, at the very end the question is this: Why there is still the death penalty in the United States and how is this justified?

Posted by: Claudio Giusti | Nov 3, 2017 5:36:41 PM

Hi, Claudio. Please, use more colorful, Italian expressions. I love them, when they apply to me.

I have explained the US death penalty many times. None of the purposes of punishment apply.

The sole purpose is to maintain the death penalty appellate business, worth many $millions to the lawyer profession. Almost no one gets executed. The number of executions are at the ineffective end of the dose-response curve. Such a curve applies to all remedies. Too little does not work, too much is toxic. So the strongest poison, botulinum toxin, when diluted, has 700 medical uses. Drink more water than your kidneys can put out in urine, causes coma, seizures, and death.

I had estimated we need 10,000 executions a year, to rid us of the violent birth cohort. Now, we have 40,000 deaths of opiate users. So, this development has far exceed my estimate. We no longer need the death penalty to suppress crime. So, I now oppose the US death penalty.

In Italy, 1000 violent prisoners are killed a year. They are classified as suicides and as murders in Italian prisons. I like the Italian death penalty far more than the US penalty. In Italy, executing a violent prisoners costs a carton of cigarettes to a lifer. Compare to the $millions wasted on worthless lawyer make work employment in the US.

Posted by: David Behar | Nov 3, 2017 10:13:56 PM

"why only the United States is using it"

Japan is too. Japan is a country that for some reason is forgotten in these conversations. The numbers executed are small, but comparably to a non-Death Belt state here. India also has the death penalty but only a few were executed in recent years.There were some [if a small number given their population] sentenced to die but many commutations to life as well. Of course, there are also the usual suspects like Saudi Arabia.

Posted by: Joe | Nov 4, 2017 10:36:27 AM

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