FEATURED POST

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

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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…

Justice Kennedy: He swung left on the death penalty but declined to swing for the fences

Justice Anthony Kennedy
As in many other areas of the law, Justice Anthony Kennedy often provided the key fifth vote in death penalty cases during his three decades on the Supreme Court. 

Swinging to the right, Kennedy was a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation. 

Kennedy will likely be remembered more, however, for his swings to the left, because he was the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence.

Most importantly, he was the primary architect of the court’s proportionality doctrine that led to exemptions from the death penalty for offenders with intellectual disability, juvenile offenders and nonhomicide offenders. He also ultimately joined decisions embracing a broad right of capital defendants to present and have fully considered all relevant mitigating evidence. 

Finally, he was the first justice to raise concerns about the extensive use of solitary confinement on death row. Overall, he solidified the court’s role in subjecting American death penalty practices to frequent and detailed — though not particularly intrusive — constitutional regulation. 

Kennedy never joined calls from members of the court (Justices Harry Blackmun, John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg) to reconsider the constitutionality of the death penalty as a punishment, but his jurisprudential glosses on the court’s proportionality doctrine arguably strengthen the case for judicial abolition.

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Source: SCOTUSblog, Carol Steiker and Jordan Steiker, July 2, 2018. Carol S. Steiker is the Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program at Harvard Law School. Jordan M. Steiker is the Judge Robert M Parker Endowed Chair in Law and Director of the Capital Punishment Center at the University of Texas at Austin School of Law.


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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