David Menschel, Criminal Defense Lawyer and President of the Vital Projects Fund wrote on the American Constitution Society website how U.S. Supreme Court Justice Anthony Kennedy quietly empowers death penalty opponents.
Menschel suggested, that since Atkins in 2002, the Supreme Court has used a “national consensus” analysis in a series of cases striking down various punishments as violating the cruel and unusual punishment clause of the Eighth Amendment. For example, the Court has ruled that certain groups of people (for example, juveniles or those who are intellectually disabled) or those who have been convicted of certain crimes (child rape, non-homicide crimes) are exempt from certain punishments (death penalty, life without the possibility of parole) because there is a national consensus against the punishments.
To determine whether a national consensus exists, the Court has used a state-counting process that it sees as providing an “objective” indication of how Americans feel about a punishment. The Court asks questions like: How many states have abolished the punishment? How many states still use it? In the states that retain it, how frequently is it used? The Court then groups states accordingly.
In Atkins, the Supreme Court found that a total of 30 states had abolished the punishment, either because the state had no death penalty or because it had the death penalty but did not subject the “mentally retarded” to it. Three years later, in Roper v. Simmons, the Court abolished the death penalty for juveniles. In Roper, the Court again counted 30 states that had abolished the punishment. Finally in 2010, in Graham v. Florida, the Court struck down the punishment of life without the possibility of parole for juveniles who committed crimes other than homicide. In that case, though only 13 states had abolished the punishment, the Court nevertheless found a national consensus against the punishment because an additional 26 states did not actually have any juveniles serving such a sentence.
What makes this term’s ruling in Hall so important is the way Justice Kennedy characterizes certain states for state-counting purposes.
For example, consider how Justice Kennedy characterizes Oregon. Oregon has only executed two people since the Supreme Court revived the death penalty in 1976. And, though Oregon has approximately 36 people on death row, it currently has a moratorium on executions imposed by Gov. John Kitzhaber. In Hall, Justice Kennedy describes Oregon as having “suspended the death penalty” and having “only executed two individuals in the past 40 years.” Strikingly, Kennedy goes on to place Oregon in the same category as the 18 abolitionist states for state-counting purposes. He specifically refers to Oregon and the abolitionist states jointly as “on the other side of the ledger.” In other words, Kennedy counts a state that has not abolished the death penalty as the equivalent of an abolitionist state.
It is not entirely clear whether Kennedy’s characterization of Oregon is influenced more by the fact that Oregon has a gubernatorial moratorium in place, or because it has executed so few people over the past four decades, or some combination of the two. Nevertheless, Kennedy’s doctrinal move is terribly important, because it expands the ways that death penalty opponents can demonstrate progress to the Supreme Court.
If, doctrinally speaking, gubernatorial moratoria are as valuable as statutory abolition, additional states warrant the Court’s attention. Since Hall was initially briefed, Gov. Jay Inslee of Washington state also imposed a moratorium, thus potentially adding Washington (along with Oregon) to the abolitionist side of the ledger. In addition, Colorado Gov. John Hickenlooper granted an indefinite reprieve to the sole man on death row who is even remotely near execution. In other words, Gov. Hickenlooper has, in effect, created a moratorium on executions, even if he has not used that word to describe it. In any event, as governors impose moratoria like these in various states, there may be additional states where moratoria might be imposed, thereby potentially adding states to the abolitionist side of the ledger.
Pennsylvania has carried out three executions in more than 30 years and all three inmates volunteered to be executed. Pennsylvania has not carried out an involuntary execution since 1962.
At the same time, Justice Kennedy’s comment about Oregon having “only executed two individuals in the past 40 years” suggests that disuse may also warrant counting a state that retains the death penalty as a de facto abolitionist state. Kennedy expands on this theme obliquely when he refers to Kansas. He says Kansas “has not had an execution in almost five decades,” and he goes on to quote Atkins, “[s]ome States… continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States.” As Kennedy no doubt understands, this insight can be applied to abolition legislation generally. The impetus to abolish the death penalty is diminished in states where executions are exceedingly rare. In other words, Kennedy seems to suggest that we should not see the retention of death penalty statutes in states where there have been few executions in decades – like New Hampshire (no executions since 1939), Kansas (no executions since 1965), Wyoming (one execution since 1965) and Colorado (one execution since 1967), Montana (three executions since 1943), etc. – as evidence of a popular will in favor of the death penalty. Kennedy makes a similar point in Graham, where he places states that allow a punishment but practically speaking do not use it, at the center of his analysis. This insight – that the Court may see states that retain the death penalty statutorily but rarely use it as non-retentionist or even de-facto-abolitionist – expands the ways that death penalty opponents may demonstrate to the Supreme Court that there is a consensus against the punishment.
Hall contains one other important doctrinal nugget of significance. As part of its national consensus analysis, in addition to counting the absolute number of states that have abolished a punishment, in Atkins, the Supreme Court emphasized the general trend, as 16 states had passed statutes exempting the “mentally retarded” from the death penalty in the previous 13 years and none had changed their laws in the other direction. This trend inquiry – which the Supreme Court refers to as the “consistency of the direction of change” – was deemphasized in subsequent opinions like Roper, to the point that it disappeared entirely in recent cases like Graham.
The trend inquiry is revived in Hall where Kennedy characterizes 11 states that had changed their laws in 12 years as a significant trend, even though two states had changed their laws in the opposite direction. Hall shows that this trend inquiry, though once dormant, is still very much alive, and importantly, in Kennedy’s eyes, 11 states in 12 years constitutes a significant trend, even in light of two countervailing states. Considering that six states have abolished the death penalty in the past six years, Hall’s 11 states in 12 years represents a goal to which death penalty opponents might reasonably aspire.
If one looks only at the 18 states that have abolished the death penalty, it may seem that death penalty opponents have a frightfully long distance to travel before they might reasonably look to the Supreme Court to vindicate their cause. And if one looks at Hall for its direct, practical impact, one might easily be underwhelmed. But through Hall Justice Kennedy speaks to death penalty opponents, alerting them to new opportunities that could ease the path that they must travel in order to demonstrate to the Supreme Court that the death penalty violates the Eighth Amendment. Death penalty opponents should pay attention.
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