Is our society mature enough now to end capital punishment?

“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86 (1958). This passage from Trop has been cited by the Supreme Court as the basis to find that juvenile offenders who commit murder should not be executed, Thompson v. Oklahoma, 487 U.S. 815 (1988) (those under 16), Roper v. Simmons, 543 U.S. 551 (2005) (those under 18), and those offenders with intellectual disability (aka mental retardation) should not be executed. Atkins v. Virginia, 536 U.S. 304, 311-12 (2002). Most recently in Hall v. Florida, 134 S.Ct. 1986, 1992 (2014), the Court held “the Eighth Amendment is not fastened to the obsolete but may acquire new meaning as public opinion becomes enlightened by a humane justice.”

The number of states who have the death penalty as the ultimate punishment has dropped over the last decade, although they still are the majority. States who have done a thorough review of how capital punishment is implemented in their state have found it is costly, disproportionate and arbitrary. Some of those states have abolished the death penalty. Does this signal the “evolving standards of decency?” Should the individual states be allowed to decide this issue on their own or should the Supreme Court decide the issue? When the Court ruled in Thompson, Roper, and Atkins, the majority of the states allowed the execution of juveniles and the intellectually disabled. Still the Court set the national standard.

This begs the question then whether our society is now mature enough to find the end of capital punishment. Recent Supreme Court cases may help shape this growing narrative.

Judicial calls for abolition

Anyone who has done any basic research on the death penalty is fully aware that many Supreme Court Justices have expressed disdain for capital punishment and have called for its abolition. Justices Marshall and Brennen both dissented inGregg v. Georgia, 428 U.S. 153 (1976) and continued to dissent on constitutional grounds to any opinion affirming a death sentence, and even any order denying review by the Court of any death sentence. Justice Blackmun stated in 1994, just before he retired from the bench, that he “no longer shall tinker with the machinery of death.” Callins v. Collins, 510 U.S. 1141, 1145 (1994). After Justice Powell retired, he concluded that the death penalty was unconstitutional and “serves no useful purpose.”. J. Jeffries, Justice Lewis F. Powell, Jr., at 452 (2001)

Now Justices Breyer and Ginsburg have joined these learned justices in their opposition to capital punishment. In his dissent in Glossip v. Gross, -- U.S. --, -- (2015), to which Justice Ginsburg joined, Justice Breyer noted that “[t]oday’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconsciously long delays that undermine the death penalty’s penological purpose.” These concepts, as fully developed by Justice Breyer in his dissent, are arguments that have often been presented individually to the judiciary as a reason to overcome procedural bars, or to accept a case for review. Often times, these concepts are not adequately persuasive in individual cases to warrant relief to the condemned. Justice Breyer though puts forth a challenge to both his learned colleagues and the defense bar when he calls for full briefing on the issue as the concepts “are quintessentially judicial matters” and should not be left to Congress and the state legislatures to ultimately decide. As he notes “we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law.” Obergefell At 40.

Here in Ohio, Justices on the Ohio Supreme Court have now publicly expressed their support for abolition of the death penalty. State v. Keenan, Slip. Opinion No. 2015-Ohio-2484, Paragraph 15 (Pfeiffer, J. concurring) (“If [Keenan] had been executed, there would have been no way for the state to cleanse itself from the awful reality of having executed a person who had not received his full measure of legal protection. To ensure that that never happens, the General Assembly should abolish the death penalty.”); State v. Wogenstahl, 134 Ohio St. 3d 1437, 981 N.E.2d 900 (2013) (O’Neill, J., dissenting) (opposing execution date because death penalty is cruel and unusual punishment under “evolved” societal standards.). There are numerous other instances in appellate courts across the country.

“Dignitary wounds cannot always be healed with the stroke of a pen.”

In Obergefell v. Hodges, 576 U.S. –- (2015), the Supreme Court held that marriage equality was the law of the land for all fifty states. No longer could states define marriage is only between a man and a woman. The Court based its ruling on the Fourteenth Amendment’s Due Process and Equal Protection clauses finding “the right to marry is fundamental under the Due Process Clause” at 11, at that “excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry.” At 15.

Respondents argued, and the dissenting justices asserted, that the Court should not make such a sweeping change, but rather allow the states to individually address the issue of marriage equality. The majority opinion addressed this argument directly: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” At 11.

Obergefell was handed down by the Supreme Court on Friday, June 26, 2105. The following Monday, June 29, 2015, the Court handed down Glossip v. Gross. There was an issue in Obergefell that directly called for abolition of anti-marriage equality laws in all fifty states, whereas the issue of abolition of capital punishment was not fully before the Court in Glossip. Obergefell though indicates the majority of the justices may be ready to head Justice Breyer’s call for a complete and thorough review.

Should the court allow more deliberation of the issue?

The Court found that the issue of marriage equality had been argued and debated in the public forum for decades before the issue came fully before the Court. As the numerous amicus briefs highlighted, there had already been “many of the central institutions in American life . . . [had] devoted substantial attention to the question.”ObergefellAt 23. However, there were still people, like the petitioners in the case, who were being deprived of their constitutional rights while waiting on the state actors to give them redress.

"The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."Obergefell at 24.

A person on death row whose constitutional rights have been violated should expect the judiciary to protect those rights “even if the broader public disagrees.” As Justice Breyer noted in his dissent in Glossip, the forty years since Gregg v. Georgia, 428 U.S. 153 (1976),the case that reinstated the death penalty, demonstrates that the Court’s willingness “to stay its hand to allow slower, case-by-case determination of the required availablity of specific public benefits” Obergefell, at 16, of capital punishment has not worked and will only lead to more and more unconscionable and unconstitutional executions.

"The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters." Glossip(Breyer, J., dissent) at 40.

Our society is mature now to recognize that the machinery of death is not worth the many costs associated with it. It is time for the Court to find that capital punishment is unconstitutional under the Eighth and Fourteenth Amendments.