As someone who lives in a red state and has practiced capital defense in Georgia and Alabama, my view for some time has been that the death penalty is not going anywhere any time soon. And while the dominant message from legal experts and commentators in recent years has been that the death penalty is on the decline,1 the results of this past election might suggest otherwise. The three referenda regarding capital punishment on the 2016 ballot — in California, Nebraska, and Oklahoma — were all resolved in favor of the death penalty.2 These votes could be taken to signal a resurgence of public support for — or at the very least, a reluctance to completely abandon — the most severe punishment available under the law.
Indeed, for those representing capital defendants in Georgia, last year only confirmed the death penalty’s brutal persistence. While the imposition of new death sentences in Georgia has declined,3 the number of executions reached an all-time high in 2016; in fact, Georgia led the nation in total number of executions, with nine (Texas was second, with seven).4 Thus, while prosecutors and jurors have exhibited an increasing reluctance to seek and impose death, voters and legislators throughout the country have chosen to leave their capital punishment schemes intact. The machinery of death continues to grind away at a brisk pace.5
How can we reconcile these seemingly contradictory phenomena, and what effect does or should the obstinacy of the death penalty in certain states, like Georgia, have on its constitutionality? Taken together, they might suggest that the path to abolition is not as clear or as sure as many commentators think.6 They may also complicate the applicability of proportionality doctrine, which, in exploring whether death is an appropriate sentence for certain offenses or offenders, relies on an assessment of society’s contemporary values with respect to the question at hand. In this Commentary, I suggest that difficulties in accurately assessing public sentiment with respect to the death penalty’s general appropriateness, weaknesses in the empirical case for a national consensus regarding abolition, and the Court’s institutional limitations may all prompt justifiable skepticism of judicial abolition grounded in proportionality analysis.
In Courting Death: The Supreme Court and Capital Punishment, Carol Steiker and Jordan Steiker provide an incredibly thorough and insightful overview of the American death penalty and its legal history. Toward the end of the book, they suggest that the death penalty in the United States will come to an end through judicial abolition and that the most promising vehicle for that holding is proportionality analysis.7 At the most general level, proportionality inquires whether the penalty of death is an excessive punishment for the crime or whether the defendant possesses the requisite level of culpability to justify the imposition of a death sentence.8 In determining which punishments are so disproportionate as to fall within the Eighth Amendment’s prohibition on cruel and unusual punishment, the Court has traditionally asked whether such punishments offend “the evolving standards of decency that mark the progress of a maturing society.”9 Under this framework, the Court has held that capital punishment is a disproportionate penalty for certain groups, such as minors10 and persons with intellectual disabilities;11 certain offenses, such as the crime of rape;12 and for defendants whose role in the crime was minor and who did not possess a culpable mental state.13
As a practical matter, proportionality analysis under the Eighth Amendment has two components: objective indicia of contemporary values and application of the Court’s independent judgment.14 Objective evidence under the first part of the analysis typically consists of legislative activity (how many states authorize death for this crime, or this category of offender), sentencing juries’ behavior (how often juries vote to impose death for this crime, or this category of offender), and the actual number of executions conducted for members of a particular group (for example, minors) or for a particular offense (for example, child rape).15 The Court uses these metrics as a proxy for society’s underlying views on the matter.16 For example, in Atkins v. Virginia,17 the Court explained:
[T]he large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon.18
Where legislative trends have changed over time, the Court has taken into account the speed of such change and the consistency of its direction.19 The authors of Courting Death argue that other evidence of “broader societal and professional consensus,” including the professional opinion of expert legal organizations like the American Bar Association and the American Law Institute, or international norms, could also fit comfortably within the “objective evidence” prong of the Court’s proportionality doctrine.20 In contrast to the evidence-based first prong, the Court’s “own judgment” often involves consideration of whether the imposition of a death sentence will further the penological goals of retribution and deterrence.21 Under this second part of the proportionality framework, the Court has also considered or could consider, as the authors point out, factors such as arbitrariness, discrimination, and the risk of wrongful conviction.22
To the extent proportionality analysis aims to ferret out public sentiment,23 there is a question whether the metrics used by the Court would provide an accurate proxy for the public’s views on the death penalty’s general appropriateness. As social scientists have demonstrated, single-question measures of public opinion — one could conceive of state referenda similarly, given their positioning vis-à-vis the broader public — do not always accurately capture the complexity of attitudes regarding the death penalty.24 Moreover, people may answer questions about their views on the death penalty differently depending on whether they are asked as a juror or as a voter.25 There is some evidence that removing the question from the abstract and placing it in a specific context may affect the way individuals respond. For example, one study has shown that people are less likely to be punitive when faced with the details of a specific case than when asked about a certain type of crime in the abstract.26 This research may help to reconcile voters’ unwillingness to let go of the death penalty as an abstract matter27 with juries’ decreased willingness to impose the death penalty in individual cases.28 Such apparent contradiction might also be accounted for by individuals who, while opposed to the death penalty in most cases, may be hesitant to remove it as an option in more extreme cases or in specific situations.29
Setting aside the question of what can actually be gleaned about contemporary values from opinion polls, jury verdicts, or legislation, the authors emphasize recent trends in legislative abolition and legal experts’ increasing consensus that the death penalty cannot be administered in a fair or impartial manner.30 In the authors’ view, one of the strengths of proportionality analysis is that it provides a vehicle for translating these developments into a constitutional prohibition. From outside the “bubble,”31 however, the authors’ application of proportionality would likely receive harsh criticism. One point the Court has made clear throughout its proportionality opinions is that “national consensus” is key to its findings regarding the constitutionality of a given practice.32 Given that objective evidence must demonstrate national consensus, one might argue in this case (as have dissenters in other cases33) that any evidence of consensus around the general appropriateness of the death penalty is far from “national.” As the authors point out, the number of states that have abolished the death penalty is not “particularly impressive,” coming in at nineteen.34 Even considering the four additional states that have gubernatorial moratoria in place, one would have to acknowledge that the nature of the moratorium may not suggest anything about individual voters’ views of the death penalty (or those of the voting majority). And, by no fault of the authors, given the book’s publication prior to the results of the 2016 election, the direction of the change is no longer consistent.35 As for the decreased number of executions in recent years, that could be attributed to other external factors, including problems with obtaining the drugs used in lethal injection and related litigation.36 In states like Georgia, where such challenges have been made more difficult by the fact that details regarding the sources of drugs and the identities of those involved in the execution are state secrets,37 the rate of executions is higher than ever.38
Instead of national consensus, the evidence demonstrates that trends toward abolition have failed to permeate the “death belt” — those states in the deep South (and, as a broader matter, the swath of the country bordered by Texas and Oklahoma on the west, and Nebraska, Missouri, Kentucky, and Virginia on the north) that have typically embraced the death penalty.39 Many of these states have not only maintained the death penalty as a possible punishment, but have also actively resisted attempts to curtail its reach. Consider, for example, recent attempts in Alabama40 and Mississippi41 to reintroduce the firing squad as an available method of execution, in light of increased challenges to lethal injection procedures. Another example is Texas’s insistent use of its “special issue” jury instructions to deny capital defendants their right to meaningful consideration of constitutionally relevant mitigating evidence — and the Texas courts’ repeated approval of such use — even though the Supreme Court has deemed their application unconstitutional on multiple occasions.42
Although the Court’s regulation of the death penalty has limited its imposition, it has also left many openings for active death penalty states to ensure its continued application. In other words, states desiring to push forward with the death penalty can often find a way to do so. Death penalty jurisprudence is replete with such examples including, most prominently, many states’ hasty enactment or re-enactment of their capital punishment schemes in the wake of Furman.43 On a more granular level, consider the practical impact of Georgia’s requirement that capital defendants seeking exemption from the death penalty prove their intellectual disability beyond a reasonable doubt.44 While this standard does not directly contravene the Court’s holding in Atkins — to the contrary, it exploits an explicit loophole45 — in practice it has made it nearly impossible for capital defendants to prove intellectual disability.46
Moreover, many states are not as ready as the Court (or at least some of its members) to accept the views of expert legal organizations. One example of this is apparent in Alabama state courts’ understanding of “prevailing professional norms” in assessing claims of ineffective assistance of counsel under Strickland v. Washington.47 In a study I conducted several years ago of the Alabama courts’ interpretation of this standard, in only twelve of eighty-six cases citing such language from Strickland did the court cite to the ABA Guidelines.48 “In only four of these cases . . . did the court rely on the Guidelines as a benchmark for reasonable performance. In the other eight cases, the court cited the Guidelines only to reject their applicability, echoing Strickland’s caveat that such sources are merely guides.”49 Instead, Alabama courts were much more likely to rely on precedent, their own judgment, or local practice norms.50 While this is only one example and does not bear directly on the question at hand, it certainly suggests that some courts would not agree that the ABA’s views should overshadow their own judgment. Similarly, they may be less likely to find international norms persuasive.
But, the argument goes, states like Alabama and Georgia are anomalies. Current empirical evidence demonstrates that actual use of the death penalty has become a localized phenomenon, concentrated in a few states and arguably even a handful of counties.51 Thus, it is a prime candidate for constitutional extinction. There have certainly been other areas of Court-driven constitutional change in which prior to a holding of unconstitutionality, the South had become an outlier, or was more extreme in its treatment of the issue — for example, same-sex marriage and racial segregation. And in those cases, objectors were quick to accuse the Court of imposing its own policy judgment on the states, as they surely would if the Court were to declare the death penalty unconstitutional as a matter of proportionality. The Court is in many ways a countermajoritarian institution,52 and scholars have long struggled with how to reconcile its institutional nature with our democratic structure.53 This problem is exacerbated, however, when the Court bases its analytical framework on its own assessment of the public’s values and then translates that assessment into a constitutional prohibition on the states. In contexts like same-sex marriage and school desegregation, the Court relied on its understanding of what equal protection and due process require to invalidate the laws at issue; while trends in popular sentiment may have been atmospherically relevant, they did not provide a basis for the Court’s holding.54 Proportionality, in contrast, relies directly on a determination of contemporary values, or “evolving standards of decency.” While both frameworks inevitably involve some amount of subjective judgment, only proportionality purports to rely on an objective assessment of whether the American people perceive something as acceptable. In the proportionality context, therefore, it may be difficult for the Court to maintain a veneer of impartiality in the face of a weak evidentiary case.
In writing this, I do not intend to defend the death penalty as it is currently administered. But it may be worth devoting more time to considering the relative legitimacy of the various avenues proposed for judicial abolition. The authors of Courting Death argue that proportionality analysis is best suited for the task, in contrast to an approach based solely on arbitrariness or discrimination, in part because arguments based on the latter would depend heavily on empirical evidence.55 The authors explain that producing empirical evidence is both expensive and time-consuming, and that such evidence is often limited in terms of temporal and geographic scope.56 Yet the authors may also underestimate proportionality’s flaws, including its own reliance on informal, and perhaps imprecise, empirical analysis of statutes, executions, and the direction and consistency of change.57 There is also the question of institutional legitimacy, and whether the Court has any advantage over the legislative branch in determining what the public feels is an appropriate punishment. While both require some level of interpretation, approaches relying on fundamental fairness arguably fall more comfortably within the judicial role than those that compel the Court to constitutionalize its perception of dominant trends in the application of the death penalty. Thus, arguments based on fairness and the elimination of arbitrariness may warrant more thorough consideration.
Ultimately, the question of whether someone’s life should be taken as punishment for a crime is a deeply personal and moral decision. But the question of whether the death penalty is administered fairly and impartially is one squarely within the Court’s domain. The difficulty with proportionality analysis is that it falls somewhere in the gray area between those two realms — particularly as applied to the death penalty’s very existence. It channels the Court’s legal understanding of what it means to be cruel and unusual while simultaneously asking whether most people would conclude that someone truly deserves to die as punishment for the acts they have committed. Some may view proportionality analysis as an effective tool to force states that are out of step or too stubborn to recognize what is right, to align with the will of a bare and righteous majority. But when the will of that majority is not clearly discernable, and a significant number of voters and states continue to express support for the death penalty, a decision based explicitly on an assessment of contemporary values may place a strain on the Court’s institutional legitimacy.
* Assistant Professor, Georgia State University College of Law.