<< Additional Nominee for FBI Director: Karen P. Tandy | Main | Open Jobs at Justice >>

Death Penalty Opponents, Chasing Their Tails

Abolitionist Fordham Law Professor Deborah Denno has a book review out endorsing the prediction by another abolitionist, Professor Carol Steiker of Harvard, that the death penalty will be eliminated by the Supreme Court when it "seems right"  --  an intriguing phrase Prof. Denno does not further explain.

SL&P carries an enlightening quotation from Prof. Denno's piece, the last paragraph of which I'll quote below (emphasis added) and then analyze:

[T]he Review expands on some key contributors to the death penalty's decline that may have been obscured by the all-encompassing nature of the Steikers' regulation argument -- for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers' prediction -- that, when abolition seems right, it will come by way of a "Furman II" Supreme Court decision -- to readily comport with the death penalty's trajectory over the last fifty years.

The odd thing is that Prof. Denno, though a capital punishment expert, seems to have next to no idea of what the "death penalty's trajectory over the last fifty years" has actually been.
Fifty years ago was 1967.  From the middle of that year, and for the next ten years (or until 1977) there were no executions in the United States.  So far this year (mid-May), there have been ten executions.  Over the last five years, there have been 165 executions (although the number has been declining year-by-year).

In 1972, executions were effectively outlawed by the 5-4 decision in Furman v. Georgia.  After legislative revisions in the states, it was re-instituted in 1976 by a 7-2 vote in Gregg v. Georgia.

From that day to this, the "trajectory" of the death penalty has been this: One thousand four hundred fifty-two executions.  Executions rose steadily in the 18 years from 1981-1999. They declined steadily for the next 18 years, roughly (although not exactly) coinciding with a very sharp decline in the murder rate.  See this chart.

Arkansas recently executed four killers in the space of ten days, and conducted the first double execution in many years.  These were undertaken after numerous, last-minute appeals were rejected by the Supreme Court.

A little less than two years ago  --  that would be 48 years into the 50-year trajectory  --the Court's majority found expressly that capital punishment is constitutional, Glossip v. Gross.  Four Justices dissented, two of them (Sotomayor and Kagan) on grounds particular to the death penalty protocol used in that case, and two (Breyer and Ginsburg) on the grounds that the death penalty had become (odd as that phrase may and should sound) unconstitutional in all circumstances.

Justice Breyer is 78.  Justice Ginsburg is 84.  The President of the United States is a known supporter of capital punishment.  His only Supreme Court appointee so far is Justice Neil Gorsuch, also known to be a supporter of capital punishment.

Bottom line:  If the "trajectory" of the death penalty over the next 50 years is, as Prof. Denno predicts, likely to resemble its trajectory over the last 50, then the only way I can think of quickly that Prof. Denno could have reached her conclusion that we're headed for permanent abolition via "Furman II" is that she has been smoking some of that stuff I occasionally blog about.

But even if I'm wrong about that, Prof. Denno's "Furman II" would be followed 48 months later by "Gregg II"  --  and then by well over a thousand executions.

Leave a comment

Monthly Archives