SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, et al., PETITIONERS
v. KEVIN J. GROSS, et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 29, 2015]
Justice Breyer, with whom Justice Ginsburg
joins, dissenting.
For the reasons stated in Justice Sotomayor’s
opinion, I dissent from the Court’s holding. But rather than try to
patch up the death penalty’s legal wounds one at a time, I would
ask for full briefing on a more basic question: whether the death
penalty violates the Constitution.
The relevant legal standard is the standard set
forth in the Eighth Amendment. The Constitution there forbids the
“inflict[ion]” of “cruel and unusual punishments.” Amdt. 8. The
Court has recognized that a “claim that punishment is excessive is
judged not by the standards that prevailed in 1685 when Lord
Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of
Rights was adopted, but rather by those that currently prevail.”
Atkins v.
Virginia, 536 U. S. 304, 311 (2002) .
Indeed, the Constitution prohibits various gruesome punishments
that were common in Blackstone’s day. See 4 W. Blackstone,
Commentaries on the Laws of England 369–370 (1769) (listing
mutilation and dismembering, among other punishments).
Nearly 40 years ago, this Court upheld the death
pen-alty under statutes that, in the Court’s view, contained
safeguards sufficient to ensure that the penalty would be applied
reliably and not arbitrarily. See
Gregg v.
Georgia,
428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell,
and Stevens, JJ.);
Proffitt v.
Florida, 428
U. S. 242, 247 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.);
Jurek v.
Texas, 428 U. S. 262,
268 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);
but cf.
Woodson v.
North Carolina, 428 U. S.
280, 303 (1976) (plurality opinion) (striking down mandatory death
penalty);
Roberts v.
Louisiana, 428 U. S. 325,
331 (1976) (plurality opinion) (similar). The circumstances and the
evidence of the death penalty’s application have changed radically
since then. Given those changes, I believe that it is now time to
reopen the question.
In 1976, the Court thought that the
constitutional infirmities in the death penalty could be healed;
the Court in effect delegated significant responsibility to the
States to develop procedures that would protect against those
constitutional problems. Almost 40 years of studies, surveys, and
experience strongly indicate, however, that this effort has failed.
Today’s administration of the death penalty involves three
fundamental constitutional defects: (1) serious unreliability, (2)
arbitrariness in application, and (3) unconscionably long delays
that undermine the death penalty’s penological purpose. Perhaps as
a result, (4) most places within the United States have abandoned
its use.
I shall describe each of these considerations,
emphasizing changes that have occurred during the past four
decades. For it is those changes, taken together with my own 20
years of experience on this Court, that lead me to believe that the
death penalty, in and of itself, now likely constitutes a legally
prohibited “cruel and unusual punishmen[t].” U. S. Const.,
Amdt. 8.
I
“Cruel”—Lack of Reliability
This Court has specified that the finality of
death creates a “qualitative difference” between the death penalty
and other punishments (including life in prison).
Woodson,
428 U. S., at 305 (plurality opinion). That “qualitative
difference” creates “a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific case.”
Ibid. There is increasing
evidence, however, that the death penalty as now applied lacks that
requisite reliability. Cf.
Kansas v.
Marsh, 548
U. S. 163 –211 (2006) (Souter, J., dis-senting) (DNA
exonerations constitute “a new body offact” when considering the
constitutionality of capital punishment).
For one thing, despite the difficulty of
investigating the circumstances surrounding an execution for a
crime that took place long ago, researchers have found convincing
evidence that, in the past three decades, innocent people have been
executed. See,
e.g., Liebman, Fatal Injustice; Carlos
DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a
Dangerous Idea, L. A. Times, June 1, 2012, p. A19 (describing
results of a 4-year investigation, later published as The Wrong
Carlos: Anatomy of a Wrongful Execution (2014), that led its
authors to conclude that Carlos DeLuna, sentenced to death and
executed in 1989, six years after his arrest in Texas for stabbinga
single mother to death in a convenience store, was innocent);
Grann, Trial By Fire: Did Texas Execute An Innocent Man? The New
Yorker, Sept. 7, 2009, p. 42 (describing evidence that Cameron
Todd Willingham was convicted, and ultimately executed in 2004, for
the apparently motiveless murder of his three children as the
result of invalid scientific analysis of the scene of the house
fire that killed his children). See also,
e.g., Press
Release: Gov. Ritter Grants Posthumous Pardon in Case Dating Back
to 1930s, Jan. 7, 2011, p. 1 (Colorado Governor granted full and
unconditional posthumous pardon to Joe Arridy, a man with an IQ of
46 who was executed in 1936, because, according to the Governor,
“an overwhelming body of evidence indicates the 23-year-old Arridy
was innocent, including false and coerced confessions, the
likelihood that Arridy was not in Pueblo at the time of the
killing, and an admission of guilt by someone else”); R. Warden,
Wilkie Collins’s The Dead Alive: The Novel, the Case, and Wrongful
Convictions 157–158 (2005) (in 1987, Nebraska Governor Bob Kerrey
pardoned William Jackson Marion, who had been executed a century
earlier for the murder of John Cameron, a man who later turned up
alive; the alleged victim, Cameron, had gone to Mexico to avoid a
shotgun wedding).
For another, the evidence that the death penalty
has been wrongly
imposed (whether or not it was carried
out), is striking. As of 2002, this Court used the word
“disturbing” to describe the number of instances in which
individuals had been sentenced to death but later exonerated.
Atthat time, there was evidence of approximately 60exonerations in
capital cases.
Atkins, 536 U. S., at320, n. 25;
National Registry of Exonerations, online at
http://www.law.umich.edu/special/exoneration/Pages/about.aspx (all
Internet materials as visited June 25, 2015, and available in Clerk
of Court’s case file). (I use “exoneration” to refer to relief from
all legal consequences of a capital conviction through a
decision by a prosecutor, a Governor or a court, after new evidence
of the defendant’s innocence was discovered.) Since 2002, the
number of exonerations in capital cases has risen to 115.
Ibid.; National Registry of Exonerations, Exonerations in
the United States, 1989–2012, pp. 6–7 (2012) (Exonerations
2012 Report) (defining exoneration); accord, Death Penalty
Information Center (DPIC), Innocence: List of Those Freed from
Death Row, online at
http://www.deathpenaltyinfo.org/innocence-and-death-penalty (DPIC
Innocence List) (calculating, under a slightly different definition
of exoneration, the number of exonerations since 1973 as 154). Last
year, in 2014, six death row inmates were exonerated based on
actual innocence. All had been imprisoned for more than 30 years
(and one for almost 40 years) at the time of their exonerations.
National Registry of Exonerations, Exonerations in 2014, p. 2
(2015).
The stories of three of the men exonerated
within the last year are illustrative. DNA evidence showed that
Henry Lee McCollum did not commit the rape and murder for which he
had been sentenced to death. Katz & Eckholm, DNA Evidence
Clears Two Men in 1983 Murder, N. Y. Times, Sept. 3, 2014, p.
A1. Last Term, this Court ordered that Anthony Ray Hinton, who had
been convicted of murder, receive further hearings in state court;
he was exonerated earlier this year because the forensic evidence
used against him was flawed.
Hinton v.
Alabama, 571
U. S. ___ (2014) (
per curiam); Blinder, Alabama Man on
Death Row for Three Decades Is Freed as State’s Case Erodes,
N. Y. Times, Apr. 4, 2014, p. A11. And when Glenn Ford, also
convicted of murder, was exonerated, the prosecutor admitted that
even “[a]t the time this case was tried there was evidence that
would have cleared Glenn Ford.” Stroud, Lead Prosecutor Apologizes
for Role in Sending Man to Death Row, Shreveport Times, Mar. 27,
2015. All three of these men spent 30 years on death row before
being exonerated. I return to these examples
infra.
Furthermore, exonerations occur far more
frequently where capital convictions, rather than ordinary criminal
convictions, are at issue. Researchers have calculated that courts
(or State Governors) are 130 times more likely to exonerate a
defendant where a death sentence is at issue. They are nine times
more likely to exonerate where a capital murder, rather than a
noncapital murder, is at issue. Exonerations 2012 Report 15–16, and
nn. 24–26.
Why is that so? To some degree, it must be
because the law that governs capital cases is more complex. To some
degree, it must reflect the fact that courts scrutinize capital
cases more closely. But, to some degree, it likely also reflects a
greater likelihood of an initial wrongful conviction. How
could that be so? In the view of researchers who have conducted
these studies, it could be so because the crimes at issue in
capital cases are typically horrendous murders, and thus
accompanied by intense community pressure on police, prosecutors,
and jurors to secure a conviction. This pressure creates a greater
likelihood of convicting the wrong person. See Gross, Jacoby,
Matheson, Montgomery, & Patil, Exonerations in the United
States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–533
(2005); Gross & O’Brien, Frequency and Predictors of False
Conviction: Why We Know So Little, and New Data on Capital Cases, 5
J. Empirical L. Studies 927, 956–957 (2008) (noting that, in
comparing those who were exonerated from death row to other capital
defendants who were not so exonerated, the initial police
investigations tended to be shorter for those exonerated); see also
B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go
Wrong (2011) (discussing other common causes of wrongful
convictions generally including false confessions, mistaken
eyewitness testimony, untruthful jailhouse informants, and
ineffective defense counsel).
In the case of Cameron Todd Willingham, for
example, who (as noted earlier) was executed despite likely
innocence, the State Bar of Texas recently filed formal misconduct
charges against the lead prosecutor for his actions—actions that
may have contributed to Willingham’s conviction. Possley,
Prosecutor Accused of Misconduct in Death Penalty Case, Washington
Post, Mar. 19, 2015, p. A3. And in Glenn Ford’s case, the
prosecutor admitted that he was partly responsible for Ford’s
wrongful conviction, issuing a public apology to Ford and
explaining that, at the time of Ford’s conviction, he was “not as
interested in justice as [he] was in winning.” Stroud,
supra.
Other factors may also play a role. One is the
practice of death-qualification; no one can serve on a capital jury
who is not willing to impose the death penalty. See Rozelle, The
Principled Executioner: Capital Juries’ Bias and the Benefits of
True Bifurcation, 38 Ariz. S. L. J. 769, 772–793, 807 (2006)
(summarizing research and concluding that “[f]or over fifty years,
empirical investigation has demonstrated that death qualification
skews juries toward guilt and death”); Note, Mandatory Voir Dire
Questions in Capital Cases: A Potential Solution to the Biases of
Death Qualification, 10 Roger Williams Univ. L. Rev. 211,
214–223 (2004) (similar).
Another is the more general problem of flawed
forensic testimony. See Garrett,
supra, at 7. The Federal
Bureau of Investigation (FBI), for example, recently found that
flawed microscopic hair analysis was used in 33 of 35 capital cases
under review; 9 of the 33 had already been executed. FBI, National
Press Releases, FBI Testimony on Microscopic Hair Analysis
Contained Errors in at Least 90 Percent of Cases in Ongoing Review,
Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False
Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015,
p. A1 (in the District of Columbia, which does not have the
death penalty, five of seven defendants in cases with flawed hair
analysis testimony were eventually exonerated).
In light of these and other factors, researchers
estimate that about 4% of those sentenced to death are actually
innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of False
Conviction of Criminal Defendants Who Are Sentenced to Death, 111
Proceeding of the National Academy of Sciences 7230 (2014)
(full-scale study of all death sentences from 1973 through 2004
estimating that 4.1% of those sentenced to death are actually
innocent); Risinger, Innocents Convicted: An Empirically Justified
Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761
(2007) (examination of DNA exonerations in death penalty cases for
murder-rapes between 1982 and 1989 suggesting an analogous rate of
between 3.3% and 5%).
Finally, if we expand our definition of
“exoneration” (which we limited to errors suggesting the defendant
was actually innocent) and thereby also categorize as “erroneous”
instances in which courts failed to follow legally required
procedures, the numbers soar. Between 1973 and 1995, courts
identified prejudicial errors in 68% of the capital cases before
them. Gelman, Liebman, West, & Kiss, A Broken System: The
Persistent Patterns of Reversals of Death Sentences in the United
States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on
direct and postconviction review overturned 47% of the sentences
they reviewed.
Id., at 232. Federal courts, reviewing
capital cases in habeas corpus proceedings, found error in 40% of
those cases.
Ibid.
This research and these figures are likely
controversial. Full briefing would allow us to scrutinize them with
more care. But, at a minimum, they suggest a serious problem of
reliability. They suggest that there are too many instances in
which courts sentence defendants to death without complying with
the necessary procedures; and they suggest that, in a significant
number of cases, the death sentence is imposed on a person who did
not commit the crime. See Earley, A Pink Cadillac, An IQ of 63, and
A Fourteen-Year-Old from South Carolina: Why I Can No Longer
Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015)
(“I have come to the conclusion that the death penalty is based on
a false utopian premise. That false premise is that we have had, do
have, will have 100% accuracy in death penalty convictions and
executions”); Earley, I Oversaw 36 Executions. Even Death Penalty
Supporters Can Push for Change, Guardian, May 12, 2014 (Earley
presided over 36 executions as Virginia Attorney General from
1998–2001); but see
ante, at 2–3 (Scalia, J., concurring)
(apparently finding no special constitutional problem arising from
the fact that the execution of an innocent person is irreversible).
Unlike 40 years ago, we now have plausible
evidence of
unreliability that (perhaps due to DNA evidence) is stronger than
the evidence we had before. In sum, there is significantly more
research-based evidence today indicating that courts sentence to
death individuals who may well be actually innocent or whose
convictions (in the law’s view) do not warrant the death penalty’s
application.
II
“Cruel”—Arbitrariness
The arbitrary imposition of punishment is the
antithesis of the rule of law. For that reason, Justice Potter
Stewart (who supplied critical votes for the holdings in
Furman v.
Georgia, 408 U. S. 238 (1972) (
per
curiam), and
Gregg) found the death penalty
unconstitutional as administered in 1972:
“These death sentences are cruel and
unusual in the same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of [death-eligible
crimes], many just as reprehensible as these, the[se] petitioners
are among a capriciously selected random handful upon which the
sentence of death has in fact been imposed.”
Furman, 408
U. S., at 309–310 (concurring opinion).
See also
id., at 310 (“[T]he Eighth and
Fourteenth Amendments cannot tolerate the infliction of a sentence
of death under legal systems that permit this unique penalty to be
so wantonly and so freakishly imposed”);
id., at 313 (White,
J., concurring) (“[T]he death penalty is exacted with great
infrequency even for the most atrocious crimes and . . .
there is no meaningful basis for distinguishing the few cases in
which it is imposed from the many cases in which it is not”).
When the death penalty was reinstated in 1976,
this Court acknowledged that the death penalty is (and would be)
unconstitutional if “inflicted in an arbitrary and capricious
manner.”
Gregg, 428 U. S., at 188 (joint opinion of
Stewart, Powell, and Stevens, JJ.); see also
id., at 189
(“[W]here discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious
action”);
Godfrey v.
Georgia, 446 U. S. 420, 428
(1980) (plurality opinion) (similar).
The Court has consequently sought to make the
application of the death penalty less arbitrary by restricting its
use to those whom Justice Souter called “ ‘the worst of the
worst.’ ”
Kansas v.
Marsh, 548 U. S., at
206 (dissenting opinion); see also
Roper v.
Simmons,
543 U. S. 551, 568 (2005) (“Capital punishment must be limited
to those offenders who commit a narrow category of the most serious
crimes and whose extreme culpability makes them the most deserving
of execution” (internal quotation marks omitted));
Kennedy
v.
Louisiana, 554 U. S. 407, 420 (2008) (citing
Roper,
supra, at 568).
Despite the
Gregg Court’s hope for fair
administration of the death penalty, 40 years of further experience
make it increasingly clear that the death penalty is imposed
arbitrarily,
i.e., without the “reasonable consistency”
legally necessary to reconcile its use with the Constitution’s
commands.
Eddings v.
Oklahoma, 455 U. S. 104,
112 (1982) .
Thorough studies of death penalty sentences
support this conclusion. A recent study, for example, examined all
death penalty sentences imposed between 1973 and 2007 in
Connecticut, a State that abolished the death penalty in 2012.
Donohue, An Empirical Evaluation of the Connecticut Death Penalty
System Since 1973: Are There Unlawful Racial, Gender, and
Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014).
The study reviewed treatment of all homicide defendants. It found
205 instances in which Connecticut law made the defendant eligible
for a death sentence.
Id., at 641–643. Courts imposed a
death sentence in 12 of these 205 cases, of which 9 were sustained
on appeal.
Id., at 641. The study then measured the
“egregiousness” of the murderer’s conduct in those 9 cases,
developing a system of metrics designed to do so.
Id., at
643–645. It then compared the egregiousness of the conduct of the 9
defendants sentenced to death with the egregiousness of the conduct
of defendants in the remaining 196 cases (those in which the
defendant, though found guilty of a death-eligible offense, was
ultimately not sentenced to death). Application of the studies’
metrics made clear that only 1 of those 9 defendants was indeed the
“worst of the worst” (or was, at least, within the 15% considered
most “egregious”). The remaining eight were not. Their behavior was
no worse than the behavior of at least 33 and as many as
170
other defendants (out of a total pool of 205) who had not been
sentenced to death.
Id., at 678–679.
Such studies indicate that the factors that most
clearly ought to affect application of the death penalty—namely,
comparative egregiousness of the crime—often do not. Other studies
show that circumstances that ought
not to affect application
of the death penalty, such as race, gender, or geography, often
do.
Numerous studies, for example, have concluded
that individuals accused of murdering white victims, as opposed to
black or other minority victims, are more likely to receive the
death penalty. See GAO, Report to the Senate and House Committees
on the Judiciary: Death Penalty Sentencing 5 (GAO/GGD–90–57, 1990)
(82% of the 28 studies conducted between 1972 and 1990 found that
race of victim influences capital murder charge or death sentence,
a “finding . . . remarkably consistent across data sets,
states, data collection methods, and analytic techniques”); Shatz
& Dalton, Challenging the Death Penalty with Statistics:
Furman,
McCleskey, and a Single County Case Study, 34
Cardozo L. Rev. 1227, 1245–1251 (2013) (same conclusion drawn
from 20 plus studies conducted between 1990 and 2013).
Fewer, but still many, studies have found that
the gender of the defendant or the gender of the victim makes a
not-otherwise-warranted difference.
Id., at 1251–1253
(citing many studies).
Geography also plays an important role in
determining who is sentenced to death. See
id., at
1253–1256. And that is not simply because some States permit the
death penalty while others do not. Rather
within a death
pen-alty State, the imposition of the death penalty heavily
de-pends on the county in which a defendant is tried. Smith, The
Geography of the Death Penalty and its Ramifications, 92 B. U.
L. Rev. 227, 231–232 (2012) (hereinafter Smith); see also
Donohue,
supra, at 673 (“[T]he single most important
influence from 1973–2007 explaining whether a death-eligible
defendant [in Connecticut] would be sentenced to death was whether
the crime occurred in Waterbury [County]”). Between 2004 and 2009,
for example, just 29 counties (fewer than 1% of counties in the
country) accounted for approximately half of all death sentences
imposed nationwide. Smith 233. And in 2012, just 59 counties (fewer
than 2% of counties in the country) accounted for
all death
sentences imposed nationwide. DPIC, The 2% Death Penalty: How A
Minority of Counties Produce Most Death Cases At Enormous Costs to
All 9 (Oct. 2013).
What accounts for this county-by-county
disparity? Some studies indicate that the disparity reflects the
decisionmaking authority, the legal discretion, and ultimately the
power of the local prosecutor. See,
e.g., Goelzhauser,
Prosecutorial Discretion Under Resource Constraints: Budget
Allocations and Local Death-Charging Decisions, 96 Judicature 161,
162–163 (2013); Barnes, Sloss, & Thaman, Place Matters (Most):
An Empirical Study of Prosecutorial Decision-Making in
Death-Eligible Cases, 51 Ariz. L. Rev. 305 (2009) (analyzing
Missouri); Donohue, An Empirical Evaluation of the Connecticut
Death Pen-alty System, at 681 (Connecticut); Marceau, Kamin, &
Foglia, Death Eligibility in Colorado: Many Are Called, Few Are
Chosen, 84 U. Colo. L. Rev. 1069 (2013) (Colo-rado); Shatz
& Dalton,
supra, at 1260–1261 (Alameda County).
Others suggest that the availability of
resources for defense counsel (or the lack thereof) helps explain
geographical differences. See,
e.g., Smith 258–265 (counties
with higher death-sentencing rates tend to have weaker public
defense programs); Liebman & Clarke, Minority Practice,
Majority’s Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L.
255, 274 (2011) (hereinafter Liebman & Clarke) (similar); see
generally Bright, Counsel for the Poor: The Death Sentence Not for
the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835
(1994).
Still others indicate that the racial
composition of and distribution within a county plays an important
role. See,
e.g., Levinson, Smith, & Young, Devaluing
Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible
Citizens in Six Death Penalty States, 89 N. Y. U.
L. Rev. 513, 533–536 (2014) (summarizing research on this
point); see also Shatz & Dalton,
supra, at 1275
(describing research finding that death-sentencing rates were
lowest in counties with the highest nonwhite population); cf. Cohen
& Smith, The Racial Geography of the Federal Death Penalty, 85
Wash. L. Rev. 425 (2010) (arguing that the federal death
penalty is sought disproportionately where the federal district,
from which the jury will be drawn, has a dramatic racial difference
from the county in which the federal crime occurred).
Finally, some studies suggest that political
pressures, including pressures on judges who must stand for
election, can make a difference. See
Woodward v.
Alabama, 571 U. S. ___, ___ (2013) (Sotomayor, J.,
dissenting from denial of certiorari) (slip op., at 7) (noting that
empirical evidence suggests that, when Alabama judges reverse jury
recommendations, these “judges, who are elected in partisan
proceedings, appear to have succumbed to electoral pressures”);
Harris v.
Alabama, 513 U. S. 504, 519 (1995)
(Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical L.
Studies, at 247 (elected state judges are less likely to reverse
flawed verdicts in capital cases in small towns than in larger
communities).
Thus, whether one looks at research indicating
that irrelevant or improper factors—such as race, gender, local
geography, and resources—
do significantly determine who
receives the death penalty, or whether one looks at research
indicating that proper factors—such as “egregiousness”—do
not determine who receives the death penalty, the legal
conclusion must be the same: The research strongly suggests that
the death penalty is imposedarbitrarily.
Justice Thomas catalogues the tragic details of
various capital cases,
ante, at 6–10 (concurring opinion),
but this misses my point. Every murder is tragic, but unless we
return to the mandatory death penalty struck down in
Woodson, 428 U. S., at 304–305, the constitutionality
of capital punishment rests on its limited application to the worst
of the worst,
supra, at 9–10. And this extensive body of
evidence suggests that it is not so limited.
Four decades ago, the Court believed it possible
to interpret the Eighth Amendment in ways that would significantly
limit the arbitrary application of the death sentence. See
Gregg, 428 U. S., at 195 (joint opinion of Stewart,
Powell, and Stevens, JJ.) (“[T]he concerns expressed in
Furman that the penalty of death not be imposed in an
arbitrary or capricious manner can be met”). But that no longer
seems likely.
The Constitution does not prohibit the use of
prosecutorial discretion.
Id., at 199, and n. 50 (joint
opinion of Stewart, Powell, and Stevens, JJ.);
McCleskey v.
Kemp, 481 U. S. 279 –308, and n. 28, 311–312 (1987). It
has not proved possible to increase capital defense funding
significantly. Smith, The Supreme Court and the Politics of Death,
94 Va. L. Rev. 283, 355 (2008) (“Capital defenders are
notoriously underfunded, particularly in states . . .
that lead the nation in executions”); American Bar Assn. (ABA)
Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb.
2003), in 31 Hofstra L. Rev. 913, 985 (2003) (“[C]ompensation
of attorneys for death penalty representation remains notoriously
inadequate”). And courts cannot easily inquire into judicial
motivation. See,
e.g., Harris,
supra.
Moreover, racial and gender biases may,
unfortunately, reflect deeply rooted community biases (conscious or
unconscious), which, despite their legal irrelevance, may affect a
jury’s evaluation of mitigating evidence, see
Callins v.
Collins, 510 U. S. 1141, 1153 (1994) (Blackmun, J.,
dissenting from denial of certiorari) (“Perhaps it should not be
surprising that the biases and prejudices that infect society
generally would influence the determination of who is sentenced to
death”). Nevertheless, it remains the jury’s task to make the
individualized assessment of whether the defendant’s mitigation
evidence entitles him to mercy. See,
e.g., Penry v.
Lynaugh, 492 U. S. 302, 319 (1989) ;
Lockett v.
Ohio, 438 U. S. 586 –605 (1978) (opinion of Burger,
C. J.);
Woodson, 428 U. S., at 304–305 (plurality
opinion).
Finally, since this Court held that comparative
proportionality review is not constitutionally required,
Pulley v.
Harris, 465 U. S. 37 (1984) , it seems
unlikely that appeals can prevent the arbitrariness I have
described. See Kaufman-Osborn, Capital Punishment, Proportionality
Review, and Claims of Fairness (with Lessons from Washington
State), 79 Wash. L. Rev. 775, 791–792 (2004) (after
Pulley, many States repealed their statutes requiring
comparative proportionality review, and most state high courts
“reduced proportionality review to a perfunctory exercise”
(internal quotation marks omitted)).
The studies bear out my own view, reached after
considering thousands of death penalty cases and last-minute
petitions over the course of more than 20 years. I see
discrepancies for which I can find no rational explanations. Cf.
Godfrey, 446 U. S., at 433 (plurality opinion) (“There
is no principled way to distinguish this case, in which the death
penalty was imposed, from the many cases in which it was not”). Why
does one defendant who committed a single-victim murder receive the
death pen-alty (due to aggravators of a prior felony conviction and
an after-the-fact robbery), while another defendant does not,
despite having kidnapped, raped, and murdered a young mother while
leaving her infant baby to die at the scene of the crime. Compare
State v.
Badgett, 361 N. C. 234, 644 S. E.
2d 206 (2007), and Pet. for Cert. in
Badgett v.
North
Carolina, O. T. 2006, No. 07–6156, with Charbonneau, Andre
Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26,
2004, online at http://www.wral.com/news/local/story/109648. Why
does one defendant who committed a single-victim murder receive the
death pen-alty (due to aggravators of a prior felony conviction and
acting recklessly with a gun), while another defendant does not,
despite having committed a “triple murder” by killing a young man
and his pregnant wife? Compare
Commonwealth v.
Boxley, 596 Pa. 620, 948 A. 2d 742 (2008), and Pet. for
Cert., O. T. 2008, No. 08–6172, with Shea, Judge Gives
Consecutive Life Sentences for Triple Murder, Philadelphia
Inquirer, June 29, 2004, p. B5. For that matter, why does one
defendant who participated in a single-victim murder-for-hire
scheme (plus an after-the-fact robbery) receive the death penalty,
while another defendant does not, despite having stabbed his wife
60 times and killed his 6-year-old daughter and 3-year-old son
while they slept? See Donohue, Capital Punishment in Connecticut,
1973–2007: A Comprehensive Evaluation from 4686 Murders to One
Execution, pp. 128–134 (2013), online at
http://works.bepress.com/john_donohue/87. In each instance, the
sentences compared were imposed in the same State at about the same
time.
The question raised by these examples (and the
many more I could give but do not), as well as by the research to
which I have referred, is the same question Justice Stewart,
Justice Powell, and others raised over the course of several
decades: The imposition and implementation of the death penalty
seems capricious, random, indeed, arbitrary. From a defendant’s
perspective, to receive that sentence, and certainly to find it
implemented, is the equivalent of being struck by lightning. How
then can we reconcile the death penalty with the demands of a
Constitution that first and foremost insists upon a rule of
law?
III
“Cruel”—Excessive Delays
The problems of reliability and unfairness
almost inevitably lead to a third independent constitutional
problem: excessively long periods of time that individuals
typically spend on death row, alive but under sentence of death.
That is to say, delay is in part a problem that the Constitution’s
own demands create. Given the special need for reliability and
fairness in death penalty cases, the Eighth Amendment does, and
must, apply to the death penalty “with special force.”
Roper, 543 U. S., at 568. Those who face “that most
severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution.”
Hall v.
Florida, 572 U. S. ___, ___ (2014) (slip op., at 22).
At the same time, the Constitution insists that “every safeguard”
be “observed” when “a defendant’s life is at stake.”
Gregg,
428 U. S., at 187 (joint opinion of Stewart, Powell, and
Stevens, JJ.);
Furman, 408 U. S., at 306 (Stewart, J.,
concurring) (death “differs from all other forms of criminal
punishment, not in degree but in kind”);
Woodson,
supra, at 305 (plurality opinion) (“Death, in its finality,
differs more from life imprisonment than a 100-year prison term
differs from one of only a year or two”).
These procedural necessities take time to
implement. And, unless we abandon the procedural requirements that
assure fairness and reliability, we are forced to confront the
problem of increasingly lengthy delays in capital cases.
Ultimately, though these legal causes may help to explain, they do
not mitigate the harms caused by delay itself.
A
Consider first the statistics. In 2014, 35
individualswere executed. Those executions occurred, on
average,nearly 18 years after a court initially pronounced
itssentence of death. DPIC, Execution List 2014, onlineat
http: / / www.deathpenaltyinfo.org / execution - list-2014
(showing an average delay of 17 years, 7 months). In some death
penalty States, the average delay is longer. Inan oral argument
last year, for example, the State admitted that the last 10
prisoners executed in Florida had spent an average of nearly 25
years on death row before execution. Tr. of Oral Arg. in
Hall v.
Florida, O. T. 2013, No. 12–10882, p. 46.
The length of the average delay has increased
dramatically over the years. In 1960, the average delay between
sentencing and execution was two years. See Aarons, Can Inordinate
Delay Between a Death Sentence and Execution Constitute Cruel and
Unusual Punishment? 29 Seton Hall L. Rev. 147, 181 (1998). Ten
years ago (in 2004) the average delay was about 11 years. See Dept.
of Justice, Bureau of Justice Statistics (BJS), T. Snell, Capital
Punishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec. 2014)
(hereinafter BJS 2013 Stats). By last year the average had risen to
about 18 years. DPIC, Execution List 2014,
supra. Nearly
half of the 3,000 inmates now on death row have been there for more
than 15 years. And, at present execution rates, it would take more
than 75 years to carry out those 3,000 death sentences; thus, the
average person on death row would spend an additional 37.5 years
there before being executed. BJS 2013 Stats, at 14, 18 (Tables 11
and 15).
I cannot find any reasons to believe the trend
will soon be reversed.
B
These lengthy delays create two special
constitutional difficulties. See
Johnson v.
Bredesen,
558 U. S. 1067, 1069 (2009) (Stevens, J., statement respecting
denial of certiorari). First, a lengthy delay in and of itself is
especially cruel because it “subjects death row inmates to decades
of especially severe, dehumanizing conditions of confinement.”
Ibid.;
Gomez v.
Fierro, 519 U. S. 918
(1996) (Stevens, J., dissenting) (excessive delays from sentencing
to execution can themselves “constitute cruel and unusual
punishment prohibited by the Eighth Amendment”); see also
Lackey v.
Texas, 514 U. S. 1045 (1995)
(memorandum of Stevens, J., respecting denial of certiorari);
Knight v.
Florida, 528 U. S. 990, 993 (1999) (Breyer,
J., dissenting from denial of certiorari)
. Second, lengthy
delay undermines the death penalty’s penological rationale.
Johnson,
supra, at 1069;
Thompson v.
McNeil, 556 U. S. 1114 ,1115 (2009) (statement of
Stevens, J., respecting denial of certiorari).
1
Turning to the first constitutional
difficulty, nearly all death penalty States keep death row inmates
in isolation for 22 or more hours per day. American Civil Liberties
Union (ACLU), A Death Before Dying: Solitary Confinement on Death
Row 5 (July 2013) (ACLU Report). This occurs even though the ABA
has suggested that death row inmates be housed in conditions
similar to the general population, and the United Nations Special
Rapporteur on Torture has called for a global ban on solitary
confinement longer than 15 days. See
id., at 2, 4; ABA
Standards for Criminal Justice: Treatment of Prisoners 6 (3d ed.
2011). And it is well documented that such prolonged solitary
confinement produces numerous deleterious harms. See,
e.g.,
Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 Crime & Delinquency 124, 130 (2003)
(cataloguing studies finding that solitary confinement can cause
prisoners to experience “anxiety, panic, rage, loss of control,
paranoia, hallucinations, and self-mutilations,” among many other
symptoms); Grassian, Psychiatric Effects of Solitary Confinement,
22 WashU. J. L. & Policy 325, 331 (2006) (“[E]ven a few
days of solitary confinement will predictably shift the [brain’s]
electroencephalogram (EEG) pattern toward an abnormal pattern
characteristic of stupor and delirium”); accord,
In re
Medley, 134 U. S. 160 –168 (1890); see also
Davis
v.
Ayala,
ante, at 1–4 (Kennedy, J., concurring).
The dehumanizing effect of solitary confinement
is aggravated by uncertainty as to whether a death sentence will in
fact be carried out. In 1890, this Court recognized that, “when a
prisoner sentenced by a court to death is confined in the
penitentiary awaiting the execution of the sentence, one of the
most horrible feelings to which he can be subjected during that
time is the uncertainty during the whole of it.”
Medley,
supra, at 172. The Court was there
describing a delay of
a mere four weeks. In the past century and a quarter, little
has changed in this respect—except for duration. Today we must
describe delays measured, not in weeks, but in decades.
Supra, at 18–19.
Moreover, we must consider death warrants that
have been issued and revoked, not once, but repeatedly. See,
e.g., Pet. for Cert. in
Suárez Medina v.
Texas, O. T. 2001, No. 02–5752, pp. 35–36 (filed Aug. 13,
2002) (“On fourteen separate occasions since Mr. Suárez Medina’s
death sentence was imposed, he has been informed of the time, date,
and manner of his death. At least eleven times, hehas been asked to
describe the disposal of his bodilyremains”); Lithwick, Cruel but
not Unusual
, Slate,Apr. 1, 2011, online at
http://www.slate.com/articles/news_and_politics/jurisprudence/2011/04/cruel_but_not_unusual.html
(John Thompson had seven death warrants signed before he was
exonerated); see also,
e.g., WFMZ-TV 69 News, Michael John
Parrish’s Execution Warrant Signed by Governor Corbett (Aug. 18,
2014), online at
http: / / www.wfmz.com /news/Regional-Poconos-Coal / Local /michael-john-parrishs-execution -warrant -signed-by -governor -corbett/27595356
(former Pennsylvania Governor signed 36 death warrants in his first
3.5 years in office even though Pennsylvania has not carried out an
execution since 1999).
Several inmates have come within hours or days
of execution before later being exonerated. Willie Manning was
four hours from his scheduled execution before the
Mississippi Supreme Court stayed the execution. See Robertson, With
Hours to Go, Execution is Postponed, N. Y. Times, Apr. 8,
2015, p. A17. Two years later, Manning was exonerated after the
evidence against him, including flawed testimony from an FBI hair
examiner, was severely undermined. Nave, Why Does the State Still
Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29,
2015. Nor is Manning an outlier case. See,
e.g., Martin,
Randall Adams, 61, Dies; Freed With Help of Film, N. Y. Times,
June 26, 2011, p. 24 (Randall Adams: stayed by this Court
three days before execution; later exonerated); N. Davies, White
Lies 231, 292, 298, 399 (1991) (Clarence Lee Brandley: execution
stayed twice, once 6 days and once 10 days before; later
exonerated); M. Edds, An Expendable Man 93 (2003) (Earl Washington,
Jr.: stayed 9 days before execution; later exonerated).
Furthermore, given the negative effects of
confinement and uncertainty, it is not surprising that many inmates
volunteer to be executed, abandoning further appeals. See,
e.g., ACLU Report 8; Rountree, Volunteers for Execution:
Directions for Further Research into Grief, Culpability, and Legal
Structures, 82 UMKC L. Rev. 295 (2014) (11% of those executed
have dropped appeals and volunteered); ACLU Report 3 (account of
“ ‘guys who dropped their appeals because of the intolerable
conditions’ ”). Indeed, one death row inmate, who was later
exonerated, still said he would have preferred to die rather than
to spend years on death row pursuing his exoneration. Strafer,
Volunteering for Execution: Competency, Voluntariness and the
Propriety of Third Party Intervention, 74 J. Crim. L. & C. 860,
869 (1983). Nor is it surprising that many inmates consider, or
commit, suicide.
Id., at 872, n. 44 (35% of those confined
on death row in Florida attempted suicide).
Others have written at great length about the
constitutional problems that delays create, and, rather than repeat
their facts, arguments, and conclusions, I simply refer to some of
their writings. See,
e.g., Johnson, 558 U. S., at 1069
(statement of Stevens, J.) (delay “subjects death row inmates to
decades of especially severe, dehumanizing conditions of
confinement”);
Furman, 408 U. S., at 288 (Brennan, J.,
concurring) (“long wait between the imposition of sentence and the
actual infliction of death” is “inevitable” and often “exacts a
frightful toll”);
Solesbee v.
Balkcom, 339 U. S.
9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of
murder, the onset of insanity while awaiting execution of a death
sentence is not a rare phenomenon”);
People v.
Anderson, 6 Cal. 3d 628, 649
, 493 P. 2d 880, 894
(1972) (collecting sources) (“[C]ruelty of capital punishment lies
not only in the execution itself and the pain incident thereto, but
also in the dehumanizing effects of the lengthy imprisonment prior
to execution during which the judicial and administrative
procedures essential to due process of law are carried out”
(footnote omitted));
District Attorney for Suffolk Dist. v.
Watson, 381 Mass. 648, 673, 411 N. E. 2d 1274, 1287 (1980)
(Braucher, J., concurring) (death penalty unconstitutional under
State Constitution in part because “[it] will be carried out only
after agonizing months and years of uncertainty”); see also
Riley v.
Attorney General of Jamaica, [1983] 1
A. C. 719, 734–735 (P. C. 1982) (Lord Scarman, joined by Lord
Brightman, dissenting) (“execution after inordinate delay” would
infringe prohibition against “cruel and unusual punishments” in §10
of the “Bill of Rights of 1689,” the precursor to our Eighth
Amendment);
Pratt v.
Attorney Gen. of Jamaica, [1994]
2 A. C. 1, 4 (P. C. 1993);
id., at 32–33 (collecting
cases finding inordinate delays unconstitutional or the
equivalent);
State v
. Makwanyane 1995 (3) SA391 (CC)
(S. Afr.);
Catholic Commission for Justice & Peace in
Zimbabwe v.
Attorney-General, [1993] 1 Zim. L. R.
242, 282 (inordinate delays unconstitutional);
Soer-ing v.
United Kingdom, 11 Eur. Ct. H. R. (ser. A), p. 439 (1989)
(extradition of murder suspect to United States would violate the
European Convention on Human Rights in light of risk of delay
before execution);
United States v.
Burns, [2001] 1
S. C. R. 283, 353, ¶123 (similar).
2
The second constitutional difficulty resulting
from lengthy delays is that those delays undermine the death
penalty’s penological rationale, perhaps irreparably so. The
rationale for capital punishment, as for any punishment,
classically rests upon society’s need to secure deterrence,
incapacitation, retribution, or rehabilitation. Capital punishment
by definition does not rehabilitate. It does, of course,
incapacitate the offender. But the major alternative to capital
punishment—namely, life in prison without possibility of
parole—also incapacitates. See
Ring v.
Arizona, 536
U. S. 584, 615 (2002) (Breyer, J., concurring in
judgment).
Thus, as the Court has recognized, the death
penalty’s penological rationale in fact rests almost exclusively
upon a belief in its tendency to deter and upon its ability to
satisfy a community’s interest in retribution. See,
e.g.,
Gregg, 428 U. S., at 183 (joint opinion of Stewart,
Powell, and Stevens, JJ.). Many studies have examined the death
penalty’s deterrent effect; some have found such an effect, whereas
others have found a lack of evidence that it deters crime. Compare
ante, at 5 (Scalia, J., concurring) (collecting studies
finding deterrent effect), with
e.g., Sorensen, Wrinkle,
Brewer, & Marquart, Capital Punishment and Deterrence:
Examining the Effect of Executions on Murder in Texas, 45 Crime
& Delinquency 481 (1999) (no evidence of a deterrent effect);
Bonner & Fessenden, Absence of Executions: A Special Report,
States With No Death Penalty Share Lower Homicide Rates, N. Y.
Times, Sept. 22, 2000, p. A1 (from 1980–2000, homicide rate in
death-penalty States was 48% to 101% higher than in
non-death-penalty States); Radelet & Akers, Deterrence and the
Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1,
8 (1996) (over 80% of criminologists believe existing research
fails to support deterrence justification); Donohue & Wolfers,
Uses and Abuses of Empirical Evidence in the Death Penalty Debate,
58 Stan. L. Rev. 791, 794 (2005) (evaluating existing
statistical evidence and concluding that there is “profound
uncertainty” about the existence of a deterrent effect).
Recently, the National Research Council (whose
members are drawn from the councils of the National Academy of
Sciences, the National Academy of Engineering, and the Institute of
Medicine) reviewed 30 years of empirical evidence and concluded
that it was insufficient to establish a deterrent effect and thus
should “not be used to inform” discussion about the deterrent value
of the death penalty. National Research Council, Deterrence and the
Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord,
Baze v.
Rees, 553 U. S. 35, 79 (2008) (Stevens,
J., concurring in judgment) (“Despite 30 years of empirical
re-search in the area, there remains no reliable statistical
evi-dence that capital punishment in fact deters potential
offenders”).
I recognize that a “lack of evidence” for a
proposition does not prove the contrary. See
Ring,
supra, at 615 (one might believe the studies
“inconclusive”). But suppose that we add to these studies the fact
that, today, very few of those sentenced to death are actually
executed, and that even those executions occur, on average, after
nearly two decades on death row. DPIC, Execution List 2014,
supra. Then, does it still seem likely that the death
penalty has a significant deterrent effect?
Consider, for example, what actually happened to
the 183 inmates sentenced to death in 1978. As of 2013 (35 years
later), 38 (or 21% of them) had been executed; 132 (or 72%) had had
their convictions or sentences overturned or commuted; and 7 (or
4%) had died of other (likely natural) causes. Six (or 3%) remained
on death row. BJS 2013 Stats, at 19 (Table 16).
The example illustrates a general trend. Of the
8,466 inmates under a death sentence at some point between 1973 and
2013, 16% were executed, 42% had their convictions or sentences
overturned or commuted, and 6% died by other causes; the remainder
(35%) are still on death row.
Id., at 20 (Table 17); see
also Baumgartner & Dietrich, Most Death Penalty Sentences Are
Overturned: Here’s Why That Matters, Washington Post Blog, Monkey
Cage, Mar. 17, 2015 (similar).
Thus an offender who is sentenced to death is
two or three times more likely to find his sentence overturned or
commuted than to be executed; and he has a good chance of dying
from natural causes before any execution (or exoneration) can take
place. In a word, executions are
rare. And an individual
contemplating a crime but evaluating the potential punishment would
know that, in any event, he faces a potential sentence of life
without parole.
These facts, when recurring, must have some
offsetting effect on a potential perpetrator’s fear of a death
penalty. And, even if that effect is no more than slight, it makes
it difficult to believe (given the studies of deterrence cited
earlier) that such a rare event significantly deters horrendous
crimes. See
Furman, 408 U. S., at 311–312 (White, J.,
concurring) (It cannot “be said with confidence that society’s need
for specific deterrence justifies death for so few when for so many
in like circumstances life imprisonment or shorter prison terms are
judged sufficient”).
But what about retribution? Retribution is a
valid penological goal. I recognize that surviving relatives of
victims of a horrendous crime, or perhaps the community itself, may
find vindication in an execution. And a community that favors the
death penalty has an understand-able interest in representing their
voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an
Execution 130 (2005) (Illinois Governor George Ryan explained his
decision to commute all death sentences on the ground that it was
“cruel and unusual” for “family members to go through this
. . . legal limbo for [20] years”).
The relevant question here, however, is whether
a “community’s sense of retribution” can often find vindication in
“a death that comes,” if at all, “only several decades after the
crime was committed.”
Valle v.
Florida, 564
U. S. ___, ___ (2011) (Breyer, J., dissenting from denial of
stay) (slip op., at 3). By then the community is a different group
of people. The offenders and the victims’ families have grown far
older. Feelings of outrage may have subsided. The offender may have
found himself a changed human being. And sometimes repentance and
even forgiveness can restore meaning to lives once ruined. At the
same time, the community and victims’ families will know that, even
without a further death, the offender will serve decades in prison
under a sentence of life without parole.
I recognize, of course, that this may not always
be the case, and that sometimes the community believes that an
execution could provide closure. Nevertheless, the delays and low
probability of execution must play some role in any calculation
that leads a community to insist on death as retribution. As I have
already suggested, they may well attenuate the community’s interest
in retribution to the point where it cannot by itself amount to a
significant justification for the death penalty.
Id., at ___
(slip op., at 3). In any event, I believe that whatever interest in
retribution might be served by the death penalty as currently
administered, that interest can be served almost as well by a
sentence of life in prison without parole (a sentence that every
State now permits, see ACLU, A Living Death: Life Without Parole
for Nonviolent Offenses 11, and n. 10 (2013)).
Finally, the fact of lengthy delays undermines
any effort to justify the death penalty in terms of its prevalence
when the Founders wrote the Eighth Amendment. When the Founders
wrote the Constitution, there were no 20- or 30-year delays.
Execution took place soon after sentencing. See P. Mackey, Hanging
in the Balance: The Anti-Capital Punishment Movement in New York
State, 1776–1861, p. 17 (1982); T. Jefferson, A Bill for
Proportioning Crimes and Punishments (1779), reprinted in The
Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John
Marshall 207–209 (C. Cullen & H. Johnson eds. 1977) (describing
petition for commutation based in part on 5-month delay);
Pratt v.
Attorney Gen. of Jamaica, [1994] 2
A. C., at 17 (same in United Kingdom) (collecting cases). And,
for reasons I shall describe,
infra, at 29–33, we cannot
return to the quick executions in the founding era.
3
The upshot is that lengthy delays both
aggravate the cruelty of the death penalty and undermine its
jurisprudential rationale. And this Court has said that, if the
death penalty does not fulfill the goals of deterrence or
retribution, “it is nothing more than the purposeless and needless
imposition of pain and suffering and hence an unconstitutional
punishment.”
Atkins, 536 U. S., at 319 (quoting
Enmund v.
Florida, 458 U. S. 782, 798 (1982) ;
internal quotation marks omitted); see also
Gregg, 428
U. S., at 183 (joint opinion of Stewart, Powell, and Stevens,
JJ.) (“sanction imposed cannot be so totally without penological
justification that it results in the gratuitous infliction of
suffering”);
Furman, supra, at 312 (White, J., concurring)
(a “penalty with such negligible returns to the State would be
patently excessive and cruel and unusual punishment violative of
the Eighth Amendment”);
Thompson, 556 U. S., at 1115
(statement of Stevens, J., respecting denial of certiorari)
(similar).
Indeed, Justice Lewis Powell (who provided a
crucial vote in
Gregg) came to much the same conclusion,
albeit after his retirement from this Court. Justice Powell had
come to the Court convinced that the Federal Constitution did not
outlaw the death penalty but rather left the matter up to
individual States to determine.
Furman,
supra, at
431–432 (Powell, J., dissenting); see also J. Jeffries, Justice
Lewis F. Powell, Jr., p. 409 (2001) (describing Powell, during his
time on the Court, as a “fervent partisan” of “the
constitutionality of capital punishment”).
Soon after Justice Powell’s retirement, Chief
Justice Rehnquist appointed him to chair a committee addressing
concerns about delays in capital cases, the Ad Hoc Committee
on Federal Habeas Corpus in Capital Cases (Committee). The
Committee presented a report to Congress, and Justice Powell
testified that “[d]elay robs the penalty of much of its deterrent
value.” Habeas Corpus Reform, Hearings before the Senate Committee
on the Judiciary, 100th Cong., 1st and 2d Sess., 35 (1989 and
1990). Justice Powell, according to his official biographer,
ultimately concluded that capital punishment:
“ ‘serves no useful purpose.’ The
United States was ‘unique among the industrialized nations of the
West in maintaining the death penalty,’ and it was enforced so
rarely that it could not deter. More important, the haggling and
delay and seemingly endless litigation in every capital case
brought the law itself into disrepute.” Jeffries,
supra, at
452.
In short, the problem of excessive delays led
Justice Powell, at least in part, to conclude that the death
penalty was unconstitutional.
As I have said, today delays are much worse.
When Chief Justice Rehnquist appointed Justice Powell to the
Committee, the average delay between sentencing and execution was 7
years and 11 months, compared with 17 years and 7 months today.
Compare BJS, L. Greenfeld, Capital Punishment, 1990, p. 11 (Table
12) (Sept. 1991) with
supra, at 18–19.
C
One might ask, why can Congress or the States
not deal directly with the delay problem? Why can they not take
steps to shorten the time between sentence and execution, and
thereby mitigate the problems just raised? The answer is that
shortening delay is much more difficult than one might think. And
that is in part because efforts to do so risk causing procedural
harms that also undermine the death penalty’s
constitutionality.
For one thing, delays have helped to make
application of the death penalty more reliable. Recall the case of
Henry Lee McCollum, whom DNA evidence exonerated 30 years after his
conviction. Katz & Eckholm, N. Y. Times, at A1. If
McCollum had been executed earlier, he would not have lived to see
the day when DNA evidence exonerated him and implicated another
man; that man is already serving a life sentence for a rape and
murder that he committed just a few weeks after the murder McCollum
was convicted of.
Ibid. In fact, this Court had earlier
denied reviewof McCollum’s claim over the public dissent of only
one Justice.
McCollum v.
North Carolina, 512
U. S. 1254 (1994) . And yet a full 20 years after the Court
denied review, McCollum was exonerated by DNA evidence. There are a
significant number of similar cases, some of which I have discussed
earlier. See also DPIC Innocence List,
supra (Nathson
Fields, 23 years; Paul House, 23 years; Nicholas Yarris, 21 years;
Anthony Graves, 16 years; Damon Thibodeaux, 15 years; Ricky
Jackson, Wiley Bridgeman, and Kwame Ajamu, all exonerated for the
same crime 39 years after their convictions).
In addition to those who are exonerated on the
ground that they are innocent, there are other individuals whose
sentences or convictions have been overturned for other reasons (as
discussed above, state and federal courts found error in 68% of the
capital cases they reviewed between 1973 and 1995). See Part I,
supra. In many of these cases, a court will have found that
the individual did not merit the death penalty in a special
sense—namely, he failed to receive all the procedural protections
that the law requires for the death penalty’s application. By
eliminating some of these protections, one likely could reduce
delay. But which protections should we eliminate? Should we
eliminate the trial-related protections we have established for
capital defendants: that they be able to present to the sentencing
judge or jury all mitigating circumstances,
Lockett v.
Ohio, 438 U. S. 586 ; that the State provide guidance
adequate to reserve the application of the death penalty to
particularly serious murders,
Gregg, 428 U. S. 153 ;
that the State provide adequate counsel and, where warranted,
adequate expert assistance,
Powell v.
Alabama, 287
U. S. 45 (1932) ;
Wiggins v.
Smith, 539
U. S. 510 (2003) ;
Ake v.
Oklahoma, 470
U. S. 68 (1985) ; or that a jury must find the aggravating
factors necessary to impose the death penalty,
Ring, 536
U. S. 584 ; see also
id., at 614 (Breyer, J.,
concurring in judgment)? Should we no longer ensure that the State
does not execute those who are seriously intellectually disabled,
Atkins, 536 U. S. 304 ? Should we eliminate the
requirement that the manner of execution be constitutional,
Baze, 553 U. S. 35 , or the requirement that the inmate
be mentally competent at the time of his execution,
Ford v.
Wainwright, 477 U. S. 399 (1986) ? Or should we get rid
of the criminal protections that all criminal defendants
receive—for instance, that defendants claiming violation of
constitutional guarantees (say “due process of law”) may seek a
writ of habeas corpus in federal courts? See,
e.g., O’Neal
v.
McAninch, 513 U. S. 432 (1995) . My answer to these
questions is “surely not.” But see
ante, at 5–7 (Scalia, J.,
concurring).
One might, of course, argue that courts,
particularly federal courts providing additional layers of review,
apply these and other requirements too strictly, and that causes
delay. But, it is difficult for judges, as it would be difficult
for anyone,
not to apply legal requirements punctiliously
when the consequence of failing to do so may well be death,
particularly the death of an innocent person. See,
e.g.,
Zant v.
Stephens, 462 U. S. 862, 885 (1983)
(“[A]lthough not every imperfection in the deliberative process is
sufficient, even in a capital case, to set aside a state-court
judgment, the severity of the sentence mandates careful scrutiny in
the review of any colorable claim of error”);
Kyles v.
Whitley, 514 U. S. 419, 422 (1995) (“[O]ur duty to
search for constitutional error with painstaking care is never more
exacting than it is in a capital case” (internal quotation marks
omitted));
Thompson, 556 U. S., at 1116 (statement of
Stevens, J.) (“Judicial process takes time, but the error rate in
capital cases illustrates its necessity”).
Moreover, review by courts at every level helps
to ensure reliability; if this Court had not ordered that Anthony
Ray Hinton receive further hearings in state court, see
Hinton v.
Alabama, 571 U. S. ___, he may well
have been executed rather than exonerated. In my own view, our
legal system’s complexity, our federal system with its separate
state and federal courts, our constitutional guarantees, our
commitment to fair procedure, and, above all, a special need for
reliability and fairness in capital cases, combine to make
significant procedural “reform” unlikely in practice to reduce
delays to an acceptable level.
And that fact creates a dilemma: A death penalty
system that seeks procedural fairness and reliability brings with
it delays that severely aggravate the cruelty of capital punishment
and significantly undermine the rationale for imposing a sentence
of death in the first place. See
Knight, 528 U. S., at
998 (Breyer, J., dissenting from denial of certiorari) (one of the
primary causes of the delay is the States’ “failure to apply
constitutionally sufficient procedures at the time of initial
[conviction or] sentencing”). But a death penalty system that
minimizes delays would undermine the legal system’s efforts to
secure reliability and procedural fairness.
In this world, or at least in this Nation, we
can have a death penalty that at least arguably serves legitimate
penological purposes
or we can have a procedural system that
at least arguably seeks reliability and fairness in the death
penalty’s application. We cannot have both. And that simple fact,
demonstrated convincingly over the past 40 years, strongly supports
the claim that the death penalty violates the Eighth Amendment. A
death penalty system that is unreliable or procedurally unfair
would violate the Eighth Amendment.
Woodson, 428 U. S.,
at 305 (plurality opinion);
Hall, 572 U. S., at ___
(slip op., at 22);
Roper, 543 U. S., at 568. And so
would a system that, if reliable and fair in its application of the
death penalty, would serve no legitimate penological purpose.
Furman, 408 U. S., at 312 (White, J., concurring);
Gregg,
supra, at 183 (joint opinion of Stewart, Powell, and Stevens,
JJ.);
Atkins,
supra, at 319.
IV
“Unusual”—Decline in Use of the Death
Penalty
The Eighth Amendment forbids punishments that
are cruel and
unusual. Last year, in 2014, only seven States
carried out an execution. Perhaps more importantly, in the last two
decades, the imposition and implementation of the death penalty
have increasingly become unusual. I can illustrate the significant
decline in the use of the death penalty in several ways.
An appropriate starting point concerns the
trajectory of the number of annual death sentences nationwide, from
the 1970’s to present day. In 1977—just after the Supreme Court
made clear that, by modifying their legislation, States could
reinstate the death penalty
—137 people were sentenced to
death. BJS 2013 Stats, at 19 (Table 16). Many States having revised
their death penalty laws to meet
Furman’s requirements, the
number of death sentences then increased. Between 1986 and 1999,
286 persons on average were sentenced to death each year. BJS 2013
Stats, at 14, 19 (Tables 11 and 16). But, approximately 15 years
ago, the numbers began to decline, and they have declined rapidly
ever since. See Appendix A,
infra (showing sentences from
1977–2014). In 1999, 279 persons were sentenced to death. BJS 2013
Stats, at 19 (Table 16). Last year, just 73 persons were sentenced
to death. DPIC, The Death Penalty in 2014: Year End Report 1
(2015).
That trend, a significant decline in the last 15
years, also holds true with respect to the number of annual
executions. See Appendix B,
infra (showing executions from
1977–2014). In 1999, 98 people were executed. BJS, Data Collection:
National Prisoner Statistics Program (BJS Prisoner Statistics)
(available in Clerk of Court’s case file). Last year, that number
was only 35. DPIC, The Death Penalty in 2014,
supra, at
1.
Next, one can consider state-level data. Often
when deciding whether a punishment practice is, constitutionally
speaking, “unusual,” this Court has looked to the num-ber of States
engaging in that practice.
Atkins, 536 U. S.
, at
313–316;
Roper,
supra, at 564–566. In this respect,
the number of active death penalty States has fallen dramatically.
In 1972, when the Court decided
Furman, the death penalty
was lawful in 41 States. Nine States had abolished it. E. Mandery,
A Wild Justice: The Death and Resurrection of Capital Punishment in
America 145 (2013). As of today, 19 States have abolished the death
penalty (along with the District of Columbia), although some did so
prospectively only. See DPIC, States With and Without the Death
Penalty, online at
http://www.deathpenaltyinfo.org/states-and-without-death-penalty.
In 11 other States that maintain the death penalty on the books, no
execution has taken place for more than eight years: Arkansas (last
execution 2005); California (2006); Colorado (1997); Kansas (no
executions since the death penalty was reinstated in 1976); Montana
(2006); Nevada (2006); New Hampshire (no executions since the death
penalty was reinstated in 1976); North Carolina (2006); Oregon
(1997); Pennsylvania (1999); and Wyoming (1992). DPIC, Executions
by State and Year, online at
http://www.deathpenaltyinfo.org/node/5741.
Accordingly, 30 States have either formally
abolished the death penalty or have not conducted an execution in
more than eight years. Of the 20 States that have conducted at
least one execution in the past eight years, 9 have conducted fewer
than five in that time, making an execution in those States a
fairly rare event. BJS Prisoner Statistics (Delaware, Idaho,
Indiana, Kentucky, Louisiana, South Dakota, Tennessee, Utah,
Washington). That leaves 11 States in which it is fair to say that
capital punishment is not “unusual.” And just three of those States
(Texas, Missouri, and Florida) accounted for 80% of the executions
nationwide (28 of the 35) in 2014. See DPIC, Number of Executions
by State and Region Since 1976, online at
http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976.
Indeed, last year, only seven States conducted an execution. DPIC,
Executions by State and Year,
supra; DPIC, Death Sentences
in the United States From 1977 by State and by Year, online at
http : / / www . deathpenaltyinfo .org / death - sentences - united -states-1977-2008.
In other words, in 43 States, no one was executed.
In terms of population, if we ask how many
Americans live in a State that at least occasionally carries out an
execution (at least one within the prior three years), the answer
two decades ago was 60% or 70%. Today, that number is 33%. See
Appendix C,
infra.
At the same time, use of the death penalty has
become increasingly concentrated geographically. County-by-county
figures are relevant, for decisions to impose the death penalty
typically take place at a county level. See
supra, at 12–13.
County-level sentencing figures show that, between 1973 and 1997,
66 of America’s 3,143 counties accounted for approximately 50% of
all death sentences imposed. Liebman & Clarke 264–265; cf.
id., at 266
. (counties with 10% of the Nation’s
population imposed 43% of its death sentences). By the early
2000’s, the death penalty was only actively practiced in a very
small number of counties: between 2004 and 2009, only 35 counties
imposed 5 or more death sentences,
i.e., approximately one
per year. See Appendix D,
infra (such counties colored in
red) (citing Ford, The Death Penalty’s Last Stand, The Atlantic,
Apr. 21, 2015). And more recent data show that the practice has
diminished yet further: between 2010 and 2015 (as of June 22), only
15 counties imposed five or more death sentences. See Appendix E,
infra. In short, the number of active death penalty counties
is small and getting smaller. And the overall statistics on
county-level executions bear this out. Between 1976 and 2007, there
were no executions in 86% of America’s counties. Liebman &
Clarke 265–266, and n. 47; cf.
ibid. (counties with
less than 5% of the Nation’s population carried out over half of
its executions from 1976–2007).
In sum, if we look to States, in more than 60%
there is effectively no death penalty, in an additional 18% an
execution is rare and unusual, and 6%,
i.e., three States,
account for 80% of all executions. If we look to population, about
66% of the Nation lives in a State that has not carried out an
execution in the last three years. And if we look to counties, in
86% there is effectively no death pen-alty. It seems fair to say
that it is now unusual to find capital punishment in the United
States, at least when we consider the Nation as a whole. See
Furman, 408 U. S., at 311 (1972) (White, J.,
concurring) (executions could be so infrequently carried out that
they “would cease to be a credible deterrent or measurably to
contribute to any other end of punishment in the criminal justice
system . . . when imposition of the penalty reaches a
certain degreeof infrequency, it would be very doubtful that any
exist-ing general need for retribution would be measurably
satisfied”).
Moreover, we have said that it “ ‘is not so
much the number of these States that is significant, but the
consistency of the direction of change.’ ”
Roper, 543
U. S., at 566 (quoting
Atkins,
supra, at 315)
(finding significant that five States had abandoned the death
penalty for juveniles, four legislatively and one judicially, since
the Court’s decision in
Stanford v.
Kentucky, 492
U. S. 361 (1989) ). Judged in that way, capital punishment has
indeed become unusual. Seven States have abolished the death
penalty in the last decade, including (quite recently) Nebraska.
DPIC, States With and Without the Death Penalty,
supra. And
several States have come within a single vote of eliminating the
death penalty. Seelye, Measure to Repeal Death Penalty Fails by a
Single Vote in New Hampshire Senate, N. Y. Times, Apr. 17,
2014, p. A12; Dennison, House Deadlocks on Bill To Abolish Death
Penalty in Montana, Billings Gazette, Feb. 23, 2015; see also
Offredo, Delaware Senate Passes Death Penalty Repeal Bill, Delaware
News Journal, Apr. 3, 2015. Eleven States, as noted earlier, have
not executed anyone in eight years.
Supra, at 34–35. And
several States have formally stopped executing inmates. See
Yardley, Oregon’s Governor Says He Will Not Allow Executions,
N. Y. Times, Nov. 23, 2011, p. A14 (Oregon); Governor of
Colorado, Exec. Order No. D2013–006, May 22, 2013 (Colorado);
Lovett, Executions Are Suspended by Governor in Washington,
N. Y. Times, Feb. 12, 2014, p. A12 (Washington); Begley,
Pennsylvania Stops Using the Death Penalty, Time, Feb. 13, 2015
(Pennsylvania); see also Welsh-Huggins, Associated Press, Ohio
Executions Rescheduled, Jan. 30, 2015 (Ohio).
Moreover, the direction of change is consistent.
In the past two decades, no State without a death penalty has
passed legislation to reinstate the penalty. See
Atkins,
supra, at 315–316; DPIC, States With and Without the Death
Penalty,
supra. Indeed, even in many States most associated
with the death penalty, remarkable shifts have occurred. In Texas,
the State that carries out the most executions, the number of
executions fell from 40 in 2000 to 10 in 2014, and the number of
death sentences fell from 48 in 1999 to 9 in 2013 (and 0 thus far
in 2015). DPIC, Executions by State and Year,
supra; BJS, T.
Snell, Capital Punishment, 1999, p. 6 (Table 5) (Dec. 2000)
(hereinafter BJS 1999 Stats); BJS 2013 Stats, at 19 (Table 16); von
Drehle, Bungled Executions, Backlogged Courts, and Three More
Reasons the Modern Death Penalty Is a Failed Experiment, Time, June
8, 2015, p. 26. Similarly dramatic declines are present in
Virginia, Oklahoma, Missouri, and North Carolina. BJS 1999 Stats,
at 6 (Table 5); BJS 2013 Stats, at 19 (Table 16).
These circumstances perhaps reflect the fact
that a majority of Americans, when asked to choose between the
death penalty and life in prison without parole, now choose the
latter. Wilson, Support for Death Penalty Still High, But Down,
Washington Post, GovBeat, June 5, 2014, online at
www . washingtonpost . com / blogs / govbeat / wp /2014 / 06 / 05 / support - for - death - penalty-still-high-but-down;see
also ALI, Report of the Council to the Membership on the Matter of
the Death Penalty 4 (Apr. 15, 2009) (withdrawing Model Penal Code
section on capital punishment section from the Code, in part
because of doubts that the American Law Institute could “recommend
procedures that would” address concerns about the administration of
the death penalty); cf.
Gregg, 428 U. S., at 193–194
(joint opinion of Stewart, Powell, and Stevens, JJ.) (relying in
part on Model Penal Code to conclude that a “carefully drafted
statute” can satisfy the arbitrariness concerns expressed in
Furman).
I rely primarily upon domestic, not foreign
events, in pointing to changes and circumstances that tend to
justify the claim that the death penalty, constitutionally
speaking, is “unusual.” Those circumstances are sufficient to
warrant our reconsideration of the death penalty’s
constitutionality. I note, however, that many nations—indeed, 95 of
the 193 members of the United Nations—have formally abolished the
death penalty and an additional 42 have abolished it in practice.
Oakford, UN Vote Against Death Penalty Highlights Global
Abolitionist Trend–and Leaves the US Stranded, Vice News, Dec. 19,
2014, online at https :
/ / news . vice . com / article / un - vote - against - death -penalty - highlights - global-abolitionist-trend-and-leaves-the-us-stranded.
In 2013, only 22 countries in the world carried out an execution.
International Commission Against Death Penalty, Review 2013, pp.
2–3. No executions were carried out in Europe or Central Asia, and
the United States was the only country in the Americas to execute
an inmate in 2013.
Id., at 3. Only eight countries executed
more than 10 individuals (the United States, China, Iran, Iraq,
Saudi Arabia, Somalia, Sudan, Yemen).
Id., at 2. And almost
80% of all known executions took place in three countries: Iran,
Iraq, and Saudi Arabia. Amnesty International, Death Sentences and
Executions 2013, p. 3 (2014). (This figure does not include China,
which has a large population, but where precise data cannot be
obtained.
Id., at 2.)
V
I recognize a strong counterargument that
favors constitutionality. We are a court. Why should we not leave
the matter up to the people acting democratically through
legislatures? The Constitution foresees a country that will make
most important decisions democratically. Most nations that have
abandoned the death penalty have done so through legislation, not
judicial decision. And legislators, unlike judges, are free to take
account of matters such as monetary costs, which I do not claim are
relevant here. See,
e.g., Berman, Nebraska Lawmakers Abolish
the Death Penalty, Narrowly Overriding Governor’s Veto, Washington
Post Blog, Post Nation, May 27, 2015) (listing cost as one of the
reasons why Nebraska legislators re-cently repealed the death
penalty in that State); cf. California Commission on the Fair
Administration of Justice, Report and Recommendations on the
Administration of the Death Penalty in California 117 (June 30,
2008) (death penalty costs California $137 million per year; a
comparable system of life imprisonment without parole would cost
$11.5 million per year), online at
http://www.ccfaj.org/rr-dp-official.html; Dáte, The High Price of
Killing Killers, Palm Beach Post, Jan. 4, 2000, p. 1A (cost of each
execution is $23 million above cost of life imprisonment without
parole in Florida).
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. They concern the infliction—indeed the unfair,
cruel, and unusual infliction—of a serious punishment upon an
individual. I recognize that in 1972 this Court, in a sense, turned
to Congress and the state legislatures in its search for standards
that would increase the fairness and reliability of imposing a
death penalty. The legislatures responded. But, in the last four
decades, considerable evidence has accumulated that those responses
have not worked.
Thus we are left with a judicial responsibility.
The Eighth Amendment sets forth the relevant law, and we must
interpret that law. See
Marbury v.
Madison, 1 Cranch
137, 177 (1803);
Hall, 572 U. S., at ___ (slip op., at
19) (“That exercise of independent judgment is the Court’s judicial
duty”). We have made clear that “ ‘the Constitution
contemplates that in the end our own judgment will be brought to
bear on the question of the acceptability of the death penalty
under the Eighth Amendment.’ ”
Id., at ___ (slip op.,
at 19) (quoting
Coker v.
Georgia, 433 U. S. 584,
597 (1977) (plurality opinion)); see also
Thompson v.
Oklahoma, 487 U. S. 815, 833, n. 40 (1988) (plurality
opinion).
For the reasons I have set forth in this
opinion, I believe it highly likely that the death penalty violates
the Eighth Amendment. At the very least, the Court should call for
full briefing on the basic question.
With respect, I dissent.
APPENDICES
A
Death Sentences Imposed 1977–2014
B
Executions 1977–2014
C
Percentage of U.S. population in States that
conducted an execution within prior 3 years