America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. 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 pr…

Does the death penalty serve a purpose? Supreme Court hasn't decided either

WASHINGTON — Death came knocking at the Supreme Court's door twice last week, as it has done most weeks since the justices took the bench in early October.

When William Sallie asked for a stay of execution Tuesday because of alleged juror bias, the justices refused, apparently without dissent. Sallie, 50, became the ninth man put to death in Georgia this year, a 40-year high.

When Ronald Smith asked that his execution be blocked Thursday because a judge overrode a jury's recommendation of life without parole, the court deadlocked 4-4. Smith, 45, later heaved and coughed during his 34-minute lethal injection.

And when Florida's Henry Sireci, Ohio's Romell Broom [sign the online clemency petition to Gov. Kasich], Louisiana's James Tyler and South Carolina's Sammie Stokes asked for their death sentences to be reconsidered — because of new evidence, a previously botched lethal injection, a disputed guilty plea and a lawyer's conflict of interest, respectively — the justices delayed action for several weeks. On Monday, all four petitions were turned down, but with a biting dissent from Justice Stephen Breyer.

"Individuals who are executed are not the 'worst of the worst' but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race," Breyer, who would have heard Sireci's and Broom's cases, said. "The time has come for this court to reconsider the constitutionality of the death penalty."

The six cases illustrate the continuing battle inside the Supreme Court over the nation's ultimate penalty — one imposed and carried out less often each year, but which voters in three states, including California, decided to retain last month.

Forty years after the high court reinstated the death penalty in another Georgia case, the justices are increasingly divided over when it is applied, how it is administered and whether it serves any purpose. Since the turn of the century, they have ended executions for the intellectually disabled, those whose crimes were committed as juveniles, and those who do not commit murder or treason. Last year, Breyer and Justice Ruth Bader Ginsburg said it was time to decide whether capital punishment itself should be abolished.

Time, however, is not on their side. President-elect Donald Trump soon will nominate the late Justice Antonin Scalia's successor, someone who is virtually certain to support the death penalty. Before his term is over, Trump could get the chance to replace one or more of the five justices who have limited its scope. Three of them — Ginsburg, Breyer and Justice Anthony Kennedy — are long past traditional retirement age.

"The window is narrowing," says Robert Smith of Harvard Law School's Fair Punishment Project, which opposes the death penalty. If Trump names several strong capital punishment proponents, "there's a chance the window closes for a generation."

Until then, it appears the justices will have to wrestle with a series of legal challenges. Already this term, they've overturned a death sentence in Oklahoma because of improper testimony from victims' family members and blocked another Alabama execution that a jury did not agree upon. That state's system, which empowers judges over juries, could go the way of Florida's and get struck down.

Two other cases appear likely to result in further restrictions. During oral arguments this fall on two Texas death sentences, a majority of justices appeared sympathetic to challenges from defendants involving racial discrimination and intellectual disability. More challenges are on the way, including some that simply question whether the range of problems renders capital punishment unconstitutional.

"You're playing whack-a-mole with the death penalty," says Robert Dunham, executive director of the Death Penalty Information Center, which opposes capital punishment. "The pattern that we’re seeing is not just the court reaching out to correct errors, but the court looking at renegade, outlier practices."

Amid decline, a resurgence?

The high court's role in the gradual decline of capital punishment has been relatively minor. Far more important have been historic reductions in new death sentences — from about 300 annually in the 1990s to fewer than 50 a year today — and executions, down from 98 in 1999 to just 20 this year.

Forty-one states have not executed anyone in the last four years. The number of states that carried out executions dropped from nine in 2013 to seven, six and just five this year. Only about 16 of the nation's more than 3,000 counties dole out capital sentences regularly.

"The death penalty is driving itself to extinction," says Brandon Garrett, a professor at the University of Virginia School of Law. In an upcoming research paper that looks at every U.S. death sentence from 1990 to 2015, he says, "What remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences.”

But voters last month staged a capital punishment comeback of sorts, defeating an abolition effort in California, restoring it to the books in Nebraska following legislative repeal, and adding it to the state constitution in Oklahoma.

"It means we're going in the other direction," says Kent Scheidegger, general counsel at the conservative Criminal Justice Legal Foundation. "The other side is not making progress. They are slipping."

That's not the case in state supreme courts, where the death penalty has been struck down recently in Florida, Delaware and Connecticut. The Florida ruling, if made retroactive, could affect nearly 400 inmates on death row.

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Source: USA Today, Richard Wolf, December 12, 2016

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