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The Death Penalty: Cruel and Unusual Punishment?. Bill of Rights Institute York County Heritage Trust Historical Society Museum York, Pennsylvania October 30, 2008. Artemus Ward Department of Political Science Northern Illinois University

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the death penalty cruel and unusual punishment

The Death Penalty: Cruel and Unusual Punishment?

Bill of Rights Institute

York County Heritage Trust Historical Society Museum

York, Pennsylvania

October 30, 2008

Artemus Ward

Department of Political Science

Northern Illinois University

What does this mean?
  • Is it the old adage: “Let the punishment fit the crime”…
  • In Solem v. Helm (1983) the Court said that the Eighth Amendment proscribes not only barbaric punishments but also sentences that are disproportionate to the crime committed. To determine whether a sentence is so disproportionate that it violates the Eighth Amendment, the justices said that they would consider three factors: “(i) the gravity of the offence and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”
  • But the use of the Solem proportionality concept has not been accepted by all the justices, and its application has not always been easy.
is the death penalty cruel and unusual
Is the Death Penalty Cruel and Unusual?
  • Where does the death penalty fit on the spectrum of cruel and unusual punishment? By the time of Solem in 1983, the Court had already answered that question: since Louisiana ex. Rel. Frances v. Resweber (1947) the Court has held that the death penalty is inherently neither cruel nor unusual.
  • In fact, never has a majority of the justices agreed that the death penalty is cruel and unusual, but why not?
  • The answer lies largely with the intent of the framers (at the time of ratification, death penalties were in use) and with the due process clauses of the Fifth and Fourteenth Amendments, which state that no person can be deprived of life without due process of law. Presumably, if due process is observed, life can be deprived.
  • Another view centers on a phrase Chief Justice Earl Warren used in a noncapital case: “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
  • But some argue that it is difficult to see how punishment of death does not meet “evolving standards of decency” when so many Americans seem to support it: roughly 2/3 over the last four decades or so.
  • Even so, many lawyers and interest groups have been working for years, even decades, to eliminate capital punishment on due process grounds. The NAACP Legal Defense and Educational Fund (LDF) sponsored one of the first such attempts…

Earl Warren

furman v georgia 1972 the facts and the ruling
Furman v. Georgia (1972)The Facts and the Ruling
  • William Furman, a black man, was accused of murdering a white man, the father of five children. Under Georgia law, the jury determined whether a convicted murderer should be put to death. This system, the LDF argued, led to unacceptable disparities in sentencing: blacks convicted of murdering whites were far more likely to receive the death penalty than whites convicted of the same crime.
  • A divided Supreme Court agreed with the LDF by a vote of 5-4. In a short per curiam opinion, deciding Furman and two companion cases, the justices said, “The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment.” Following this terse statement, however, were nine separate opinions (five for the LDF and four against), running 243 pages (50,000 words)—the longest in Court history…
furman v georgia 1972 the majority
Furman v. Georgia (1972)The Majority
  • The views presented in the opinions of the five-member majority varied considerably—three justices (William O. Douglas, Potter Stewart, and Byron White) thought capital punishment, as currently imposed, violated the Constitution, and two (William Brennan and Thurgood Marshall) said it was unconstitutional in all circumstances.
  • Beyond these general groupings, the five justices agreed on only one major point of law: that those states using capital punishment do so in an arbitrary manner, particularly with regard to race. But they framed even this statement in divergent terms.
  • Douglas said arbitrariness led to discriminatory sentencing.
  • Brennan used arbitrariness as part of a four-part test designed to determine whether the death penalty is acceptable punishment. He found that it was degrading, arbitrary, unacceptable to contemporary society, and excessive.
  • Marshall adopted a similar approach but explained that arbitrariness was but one reason why capital punishment was cruel and unusual and “morally unacceptable.”
  • To Stewart, arbitrariness in sentencing meant that the death penalty was imposed in a “wanton” and “freak[ish] manner,” akin to being struck by lightning.
  • For White, arbitrariness led to the infrequency of imposition, which in turn made death a less than credible deterrent.

Top (L-R): Stewart, White, Marshall

Bottom (L-R): Douglas and Brennan

furman v georgia 1972 the dissenters
Furman v. Georgia (1972)The Dissenters
  • The dissenters, Harry Blackmun, Warren Burger, Lewis Powell, and William Rehnquist (the four Nixon appointees), were more uniform in their critiques. To a lesser or greater extent, all expressed the view that the Court was encroaching on legislative turf and that Americans had not “repudiated” the death penalty.
  • Blackmun also lambasted the majority for expressing views wholly inconsistent with past precedent. In particular, he noted that Stewart and White had previously found that it would be virtually impossible to create sentencing standards, but now they were striking laws in part because of the absence of such standards.
  • Chief Justice Burger’s opinion raised a unique issue: he noted that the plurality (Douglas, Stewart, and White) had not ruled that capital punishment under all circumstances was unconstitutional and that it may be possible for states to rewrite their laws to meet their objections. As he asserted: “It is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made…. [L]egislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow… or by more narrowly defining crimes for which the penalty is imposed.” Privately, however, Burger though his suggestions futile, lamenting later, “There will never be another execution in this country.”

Warren Burger

gregg v georgia 1976 the facts
Gregg v. Georgia (1976):The Facts
  • Taking cures for Furman, many states set out to revise their death penalty laws. Among the new plans was one proposed by Georgia (and other states). At the heart of this law was the “bifurcated trial,” which consisted of two stages—the trial and the sentencing phase.
  • The trial would proceed as usual, with a jury finding the defendant guilty or not guilty. If the verdict was guilty, the prosecution could seek the death penalty at the sentencing stage, in which the defense attorney presents the mitigating facts and the prosecution presents the aggravating facts.
  • Mitigating facts include the individual’s record, family responsibility, psychiatric reports, chances for rehabilitation, and age. The prosecution must demonstrate that at least one codified aggravating factors was present such as murder committed “while the offender was engaged in the commission of another capital offense,” for the purpose of receiving the victim’s property, and murders that are “outrageously or wantonly vile, horrible, or inhumane.”
  • After hearing both sides, the jury determines whether the individual receives the death penalty. By spelling out the conditions that must be present before a death penalty can be imposed, the law sought to reduce the jury’s discretion and eliminate the arbitrary application of the death penalty that the Court found unacceptable in Furman. As a further safeguard, the Georgia Supreme Court was to review all jury determinations of death.
  • Gregg and a friend were hitchhiking north in Florida. Two men picked them up, and the foursome was later joined by another passenger who rode with them as far as Atlanta. The four then continued to a rest stop on the highway. The next day, the bodies of the two drivers were found in a nearby ditch. The individual let off in Atlanta identified Gregg and his friend as possible assailants. Gregg was tried and convicted of murder and sentenced to death. The state supreme court upheld the sentence.
gregg v georgia 1976 the majority
Gregg v. Georgia (1976)The Majority
  • Gregg’s conviction was upheld 7-2. Justice Potter Stewart announced the judgment and wrote an opinion for three justices (Stewart, Powell, and Stevens). He began by stating that the Eighth Amendment incorporated a “basic concept of human dignity” but that the death penalty is not cruel and unusual per se. He said that in light of evolving standards of decency, the penalty is constitutional when it is proportional to the severity of the crime (not arbitrary) and is not a wanton infliction of pain.
  • Legislatures need not prove that the death penalty deters, nor need they select the least severe penalty possible. Legislative choices of penalties thus carry a heavy presumption of validity.
  • Stewart also emphasized that constitutional acknowledgment and public acceptance of the death penalty strengthen its presumptive validity and that retribution is a valid legislative consideration.
  • The Georgia statute, according to Stewart, effectively prevents arbitrary and disproportionate death sentences (1) because the bifurcated procedure allows full exploration of the evidence relating to the penalty; (2) because the sentencing body must make specific factual findings to support the result; and (3) because state supreme court review insures comparability and proportionality among defendants who receive the death penalty.
  • Justice Byron White, joined by Warren Burger and William Rehnquist, stated that Gregg had failed in his burden of showing that the Georgia Supreme Court had not in this case insured against discriminatory, freakish, or wanton administration of the death penalty. They also said that limited prosecutorial discretion did not make the penalty unconstitutional because there are rational considerations that determine whether prosecutors seek the death penalty: strength of evidence and the likelihood that the jury would in fact impose the penalty.
gregg v georgia 1976 the dissenters
Gregg v. Georgia (1976)The Dissenters
  • In his dissent, Justice William Brennan reiterated his position in Furman: “the punishment of death, for whatever crime and under all circumstances, is ‘cruel and unusual’ in violation of the Eighth and Fourteenth Amendments….. The fatal constitutional infirmity is the punishment of death is that it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.”
  • Justice Thurgood Marshall also issued a dissent reiterating his position in Furman that the death penalty is cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. He also stated that the issue in this case is whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty—life imprisonment—would do as well. The Court said that the two purposes are general deterrence and retribution.
    • Marshall said that the research shows that “capital punishment is not necessary as a deterrent to crime in our society.”
    • As for retribution, the justification is that the death penalty is necessary to prevent the American people from taking the law into their own hands, i.e. if people see the state as incapable of exacting the punishment offenders “deserve” they will carry it out themselves through vigilante justice and lynch law. Marshall explained that there is no evidence that imprisonment rather than death encourages such behavior and “simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.”
  • What changed between Furman and Gregg? Why didn’t Furman signal the end of the death penalty?
  • Public opinion polls show an increase from about half to about two-thirds between the two decisions.
  • Only two justices in Furman—Brennan and Marshall—called for its abolition. The others simply wanted arbitrariness remedied and that’s what they got with new state procedures.
  • Many states adopted a variation of Georgia’s death penalty law (currently, 38 states have death penalty laws on their books), and executions increased accordingly…
In 2006, 53 persons in 14 States were executed -- 24 in Texas; 5 in Ohio; 4 each in Florida, North Carolina, Oklahoma, and Virginia; and 1 each in Indiana, Alabama, Mississippi, South Carolina, Tennessee, California, Montana, and Nevada.
  • Of persons executed in 2006, 32 were white and 21 were black.
  • All 53 inmates executed in 2006 were men.
  • Lethal injection accounted for 52 of the executions and electrocution for one.
  • In 2007, 42 persons were executed—a 13-year low—placing the U.S. 5th in the world in 2007 behind China (470), Iran (317), Saudi Arabia (143), and Pakistan (135).
  • Currently lethal injection is the method used or allowed in 37 of the 38 states which have the death penalty. Nebraska requires electrocution. Other states also allow electrocution, the gas chamber, hanging and firing squad.
  • The gas chamber was last used in Arizona in 1999. A convict chose death by firing squad in Utah in 1996 (Idaho and Oklahoma also allow firing squads as the backup method to lethal injection. The last public hanging (and also the last public execution) occurred in 1936 in Kentucky.
atkins v virginia 2002 the facts
Atkins v. Virginia (2002)The Facts
  • In Penry v. Lynaugh (1989) the Court ruled that the Eighth Amendment does not categorically prohibit the execution of a mentally disabled defendant convicted of a capital murder.
  • Daryl Atkins and William Jones were spending a day smoking marijuana and drinking. They went to a convenience store but had no money. So they carjacked, robbed, and killed an airman by shooting him eight times. Jones plead guilty and testified that Atkins was the shooter. Atkins said that Jones was the shooter. The jury believed Jones and convicted Atkins of the murder.
  • At sentencing, the jury heard testimony from a forensic psychologist, hired by the defense, that Atkins was mildly mentally disabled with an IQ of 59 and an impaired capacity either to understand the criminality of his conduct or to conform his behavior to the law. A psychologist for the prosecution said that while he had an antisocial personality disorder he was at least of average intelligence.
  • The jury also heard about Atkins’ 16 prior felony convictions for robbery, attempted robbery, abduction, firearms violations, and maiming. They sentenced him to death and the Virginia Supreme Court upheld the sentence relying on Penry.
atkins v virginia 2002 justice john paul stevens delivered the opinion of the court
Atkins v. Virginia (2002)Justice John Paul Stevens Delivered the Opinion of the Court
  • In Atkins, the Court reversed course and struck down a Virginia law permitting the practice. Writing for the 6-3 majority Justice John Paul Stevens used the proportionality test and invoked the “evolving standards of decency” argument.
  • He explained that since Penry, numerous states and the federal government have exempted the mentally disabled from execution while none have passed new legislation allowing it. “And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry. The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.”
  • Stevens went on to explain that the two justifications for the death penalty—deterrence and retribution—could not be logically applied to the mentally disabled as their diminished mental capacity makes them less culpable and less able to understand the consequences of their actions.
atkins v virginia 2002 justice antonin scalia dissenting
Atkins v. Virginia (2002)Justice Antonin Scalia Dissenting
  • Scalia (joined by William Rehnquist and Clarence Thomas) dissented: “Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eight Amendment; it does not even have support in the current social attitudes regarding conditions that render an otherwise just death penalty appropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members”
  • Scalia explained that there is no national consensus against the practice when a majority of states still permit it and those that do not have only done so recently.
  • As for retribution and deterrence, juries know of the mental disability and still choose to express their moral outrage by imposing death and juries can decide in each case whether each individual was culpable or not or able to understand consequences or not.
roper v simmons 2005 the facts
Roper v. Simmons (2005): The Facts
  • In Thompson v. Oklahoma (1988) and Stanford v. Kentucky (1989) the Court said that someone as young as sixteen at the time the crime was committed could be executed.
  • In 1993 Missouri charged Christopher Simmons, 17, with murder. About 9 months later, after he turned 18, he was convicted and sentenced to death. Simmons asked the state Supreme Court to set aside his death sentence under the reasoning of Atkins, which he said applied to juveniles.
  • The Missouri Supreme Court agreed and re-sentenced Simmons to life in prison. It found that since Stanford, a national consensus had developed against the execution of juvenile offenders. The court cited as evidence that 18 states prohibit the execution of juveniles, that 12 other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that 5 states have legislatively or by case law raised or established the minimum age for execution at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade.
roper v simmons 2005 justice anthony kennedy delivered the opinion of the court
Roper v. Simmons (2005)Justice Anthony Kennedy Delivered the Opinion of the Court
  • Writing for a 5-4 majority (the same as in Atkins minus O’Connor), Justice Anthony Kennedy affirmed the Missouri court’s decision. Just as the Court did in Atkins and as did the Missouri court in Roper, Kennedy pointed to a growing national consensus against the execution of juveniles. He, like Justice Stevens in Atkins, also turned to international opinion:
  • “As [Simmons] and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants.”
  • “Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.”
roper v simmons 2005 justice sandra day o connor dissenting
Roper v. Simmons (2005)Justice Sandra Day O’Connor Dissenting
  • “Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at all. Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own ‘inevitably subjective judgment’ on how best to resolve this difficult moral question for the judgments of the Nation’s democratically elected legislatures. I respectfully dissent.”
roper v simmons 2005 justice antonin scalia dissenting
Roper v. Simmons (2005)Justice Antonin Scalia, Dissenting
  • Scalia’s dissent (joined by Rehnquist and Thomas) tracked the one he wrote in Atkins. He contended that gauging the national consensus on juvenile executions should have no place in the Court’s jurisprudence and, even if it did, only 18 (47%) of the states that permit capital punishment prohibit the execution of offenders under 18.
  • “Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.”
  • “However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the ‘evolution’ of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, ‘updating’ the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.”
panetti v quarterman 2007
Panetti v. Quarterman (2007)
  • With departures of Rehnquist and O’Connor and the additions of Roberts and Alito, would the Court’s death penalty jurisprudence change?
  • In a 5-4 decision the Court held in Panetti that a mentally ill convicted murderer who was delusional and lacked a “rational understanding” of why the state had sentenced him to death could not be executed.
  • The Court also held that capital defendants can challenge their sentences on mental illness grounds at any point prior to their execution, including after the date for execution is set.
  • Kennedy wrote the opinion and joined the four liberals in yet another example of his skepticism about the reach of the death penalty.
  • Roberts and Alito joined Scalia and Thomas in dissent, effectively replacing the votes Rehnquist and O’Connor in Roper.

Justice Anthony Kennedy

baze v rees 2008 the facts
Baze v. Rees (2008)The Facts
  • Do death sentences carried out by lethal injection violate the Eighth Amendment ban on cruel and unusual punishment?
  • States began using lethal injection in 1978 as an alternative to the historic methods of electrocution, the gas chamber, hanging and shooting. But there recently have been botched lethal injection executions in which inmates took up to 30 minutes to die.
  • In 2006, the Kentucky Supreme Court affirmed the constitutionality of lethal injection, noting that of the 38 states that permit capital punishment, the majority use the injection method because it is "universally recognized as the most human method of execution and the least apt to cause unnecessary pain."
  • The lethal injection method calls for the administration of three or four drugs: Valium, which relaxes the convict, Sodium Pentathol, which knocks the convict unconscious, Pavulon, which stops breathing, and potassium chloride, which essentially puts the convict into cardiac arrest, ultimately causing death.
  • Two inmates challenged Kentucky's three-drug lethal injection protocol on the grounds that condemned prisoners can suffer excruciating pain, without being able to cry out, if given too small a dose of the anesthetic.
  • The Kentucky Supreme Court noted that only one person has been put to death under the state's lethal injection method. It observed that the convict went to sleep within a minute of the first injection and did not move or show any evidence of suffering during the remainder of the process.
  • The U.S. Supreme Court issued stays on pending executions after it agreed to decide this case September 25, 2007. Therefore, states that used the lethal injection method had to wait until the Court’s decision was announced.
baze v rees 2008 the opinions
Baze v. Rees (2008)The Opinions
  • The Court upheld the drug protocol for lethal injection by a 7-2 vote with only Justices Ginsburg and Souter dissenting.
  • Chief Justice John Roberts said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk. “A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment. He said that Court has never declared a method of execution unconstitutional. It allowed the electric chair and firing squads in the late 1800s. “It is clear…that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.”
  • Justice John Paul Stevens agreed with Roberts that the evidence presented by the two inmates failed to show the state's method was unconstitutional. He said in his separate opinion that he felt bound by the court’s precedents to uphold the constitutionality of the Kentucky protocol. But he went on to call for abolishing the death penalty, both as a matter of policy and of Eighth Amendment jurisprudence. “State-sanctioned killing,” Justice Stevens said, was “becoming more and more anachronistic.”

John Roberts

kennedy v louisiana 2008 justice anthony m kennedy delivered the opinion of the court
Kennedy v. Louisiana (2008)Justice Anthony M. Kennedy Delivered the Opinion of the Court
  • By a vote of 5-4, the Court ruled that the Constitution prohibits the death penalty for the rape of a child.
  • Kennedy’s majority opinion was based in part on the conclusion that because child rape was a capital offense in only six states, and not under federal law, the death penalty for the crime did not meet the “evolving standards of decency” by which the court judges capital punishment.
  • He wrote: “The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund v. Florida (1982) that prohibited the death penalty under the circumstances those cases considered.”
  • Furthermore, Kennedy explained that death could not be imposed for any crime in which the victim is not killed.
kennedy v louisiana 2008 justice samuel alito dissenting
Kennedy v. Louisiana (2008)Justice Samuel Alito Dissenting
  • Alito (joined by Scalia) explained that:
  • The Court’s decision was not supported by the original meaning of the Eighth Amendment.
  • None of the Court’s precedents command the result.
  • There are no reliable “objective indicia” of a “national consensus” in support of the Court’s position.
  • Sustaining the constitutionality of the state law would not “extend” or “expand” the death penalty.
  • The Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems.
  • The worst child rapists exhibit the epitome of moral depravity
  • Child rape inflicts grievous injury on victims and on society in general.
kennedy v louisiana 2008 criticism and aftermath
Kennedy v. Louisiana (2008)Criticism and Aftermath
  • Within an hour of the opinions being handed down it was loudly denounced on many fronts, including by both of the major candidates for president.
  • A week later, The New York Times reported that the U.S. Department of Justice admitted making a mistake in the case by not informing the Court that Congress added child rape to the military death penalty in 2006 and that President Bush issued an executive order in September 2007 adding the new provision to the current version of the Manual for Courts-Martial.
  • Still, Congress made the change as part of a 450-page omnibus appropriations bill, there was no debate about it, and no press coverage. It is likely that no one in Congress knew they passed it.
  • Regardless, both parties in the case missed this information as did all seven of the “friend of the Court” briefs filed by interested parties and all nine justices and their three-dozen law clerks.
  • On July 21, 2008 the state of Louisiana petitioned the Court to rehear the case. On October 1, 2008 the justices denied the petition. Kennedy issued a statement concerning the denial explaining that the military had not executed anyone in more than 40 years, those facing death sentences committed murder, and that the new law states that the penalty could only be imposed after a court-martial. In any event, he argued that military context should have no bearing on death sentences in civilian cases.
it s justice kennedy s world and you just live in it
It’s Justice Kennedy’s Worldand You Just Live in It
  • There are signs that the justices are gearing up to reconsider the issue of whether the death penalty is being applied in a discriminatory way…
  • Justice Sandra Day O’Connor was often considered the “swing vote” during her tenure (1981-2005). But she was only in 5-4 majorities about 2/3 of the time.
  • Kennedy had been in 5-4 majorities ½ to 2/3 of the time.
  • Now Kennedy is in all of them.
  • However, with Justice John Paul Stevens turning 89 this Term it is a safe bet that the new president will make at least one appointment in the next year or two.
further reading
Further Reading
  • THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE, by Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun.  New York and Cambridge:  Cambridge University Press, 2008.