With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current limitations become a distinct possibility. And that is where we are today.
This essay aims to show that the true core of what the Eighth Amendment demands is not consistency but a “deserts-limitation”—a requirement that no person receive the death penalty who does not deserve it. That is a goal on which even conservatives could agree. It is also a goal that many of the existing death penalty doctrines help to fulfill. Thus, this essay aims to explain why a conservative Court should not repudiate the heart of existing Eighth Amendment jurisprudence on capital selection.
Introduction
Beginning in 2015, many proponents of abolishing the death penalty dared to imagine that the Supreme Court might soon inflict a coup de grâce to capital punishment.1 In Glossip v. Gross,2 Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, issued an extraordinary dissenting opinion calling for a categorical challenge to capital punishment and laying out a variety of supporting arguments.3 Believing that Justice Breyer was signaling that Justice Anthony Kennedy, who had long been moderate on the death penalty,4 might be ready to provide the fifth vote for abolition, anti-death penalty lawyers geared up to bring such a challenge to the Court.5 When Justice Antonin Scalia died in February 2016, abolitionists became even more hopeful that judicial abolition was near.6 After a Democratic president—if not Barack Obama, then his expected Democratic successor, Hillary Clinton—appointed a liberal Justice to replace the conservative Justice Scalia, abolitionists believed there might be five Justices ready to declare the death penalty unconstitutional even without Justice Kennedy.7
But, alas, it was not to be. After the Republican majority in the Senate stalled on Obama’s nominee, Merrick Garland, and Republican Donald Trump’s surprising victory over Hillary Clinton for the presidency, Justice Scalia was replaced by Justice Neil Gorsuch, who is expected to interpret the Eighth Amendment narrowly.8 The basis for hope was not lost, but it was back to a five-vote victory dependent on Justice Kennedy. However, in 2018, even those dreams evaporated when Justice Kennedy announced his retirement.9 With the appointment of Justice Brett Kavanaugh, a solid conservative, to replace him, there is no longer any basis to believe that there are five votes to promptly end the death penalty.10
The central question now about the Supreme Court and capital punishment is whether the story will turn decidedly negative for those who had hoped the Court would abolish the sanction. With five conservative Justices, abolitionists may fear that the Court will roll-back regulations on when states can impose death sentences. In its most pronounced form, conservative change could mean abandoning the “individualized sentencing” doctrine from Woodson v. North Carolina,11 which requires states to conduct a separate sentencing trial in capital cases.12 In softer form, change could involve allowing mandatory death penalties in certain extreme cases and limiting the evidentiary breadth of the individualized-sentencing rule, which the Court described expansively in Lockett v. Ohio.13 Along with abandoning or limiting the individualization doctrine, conservative change could involve overturning one or more of the Court’s “proportionality” rulings that categorically limit the use of the death penalty for some types of crimes and some types of offenders, such as minors.14 The most vulnerable example may be Kennedy v. Louisiana,15 in which the Court categorically rejected the death penalty for child rape.16
While conservatives have plausible reasons to roll back those doctrines, I offer a retributive argument that is decidedly non-liberal for the Court to substantially retain them. My argument does not focus on an originalist approach to interpreting the Cruel and Unusual Punishments Clause.17 Since 1958, in Trop v. Dulles,18 the Court has consistently purported to interpret the clause according to “evolving standards of decency,”19 and I accept that methodology. Even so, I contend that the Court should reject as implausible the commonly repeated rhetoric that the clause mandates consistency in the use of the death penalty.20 The Court’s Eighth Amendment doctrines on capital sentencing support only a single, more modest goal—that no person should receive the death penalty who does not deserve it, a concept I call the “deserts-limitation.”21 Believing this deserts-limitation to be a sensible understanding of how the Eighth Amendment applies to capital punishment, I urge conservatives to accept it and acknowledge that, in the main, current doctrines on “individualized sentencing” and “proportionality” serve it.
I. The True Command of the Eighth Amendment: Consistency or a Deserts-Limitation?
The Eighth Amendment as it applies to capital selection is simply about ensuring that no person receives the death penalty who does not deserve it. As I have argued before, if consistency were the aspiration of Eighth Amendment regulation, “a system involving unrelenting harshness in the imposition of death sentences should succeed, while a system giving officials discretion to extend merciful reprieves should fail.”22 As Professor Randall Kennedy has noted, where race-of-victim discrimination predominates, which is typical, a state could pursue consistency by increasing the death-sentencing rate for killers of blacks to match the death-sentencing rate for similarly-situated killers of whites.23 Yet, the profound ironies in any view that the prohibition on cruel and unusual punishments is indifferent between leveling up and leveling down24 may help explain why the Court has not seriously pursued the “consistency” view.25 The call for “consistency” has essentially operated as only a rhetorical flourish,26 although one that has obscured the first question to be addressed by the Eighth Amendment: When is capital punishment appropriate for an individual offender? Only after we answer that question should we ask the “consistency” question: Must everyone for whom the death penalty is appropriate receive it? We will see that the answers reflected in capital-sentencing doctrines are that the death penalty is only appropriate under the Eighth Amendment when an offender deserves it and the Eighth Amendment is not offended by undeserved leniency.
II. The Value of Capital-Selection Doctrines in Protecting Against Undeserved Death Sentences
In this Section, I aim to show that the core of existing capital-sentencing jurisprudence implements a deserts-limitation and that, even for a conservative Court, it makes sense to honor that principle. The individualized-sentencing and proportionality doctrines comprise the core of capital-sentencing jurisprudence and conservatives should concede that these doctrines have a plausible Eighth Amendment explanation. At the same time, I concede that a conservative Court could logically reject a less-important doctrine known as the “narrowing” rule.27 Under that doctrine, a state must require the jury to find an “aggravating circumstance” to justify a death sentence, and the circumstance must supposedly “genuinely narrow” the class of people who may be subjected to the death penalty.28 The Court has rationalized the narrowing rule as an effort to promote consistency.29 However, the effort has accomplished little, if anything. And in any event, consistency is not an Eighth Amendment aspiration that can justify regulation as opposed to abolition.30 If any death penalty doctrine warrants repudiation, it is the narrowing rule.
A. Individualized-Sentencing Doctrine
The Supreme Court’s individualized-sentencing doctrine requires states to conduct an expansive penalty trial—after conviction at the trial on the merits—in all capital cases. This doctrine is central to what makes death so much more difficult for states to impose and maintain on appeal than a prison sentence. Regardless of how aggravating the circumstance and narrowly defined the capital crime, the state must provide a separate penalty trial31 at which the defendant has an opportunity to present mitigating evidence to avoid capital punishment.32 According to Lockett, the defendant must be free to present, and the sentencer must be free to consider as a basis for reprieve, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”33 With the benefit of this broad evidentiary standard,34 the best capital defense lawyers can make a powerful case for sparing almost any defendant, if only so that jurors can avoid the emotional weight for the rest of their lives of having voted for the death penalty.35
The individualized-sentencing doctrine also makes death penalty trials and appeals expensive and slow. Jury selection is protracted because of the requirement to discover and excuse jurors whose views on the death penalty would prevent them from being fair to both sides at sentencing.36 The sentencing trial itself can also become extended where defense counsel and the prosecutors present many witnesses. And because of that sentencing trial, many additional issues arise, which can extend the appellate litigation and sometimes require a new sentencing hearing.37 The rarity of capital-sentencing trials exacerbates those effects because neither judges, prosecutors, nor defense attorneys have typically tried many capital cases to a sentencing verdict and thus make more errors. Many of those complications might disappear if states could simply impose a mandatory death penalty upon conviction of certain crimes.
Putting aside policy considerations, the Eighth Amendment grounding for requiring the sentencing trial and imposing the expansive Lockett rule38 is also questionable. The most plausible explanation is that the Cruel and Unusual Punishments Clause39 imposes a deserts-limitation on the use of the death penalty. The sentencing trial is not suited to resolving the utilitarian question of crime deterrence. That issue is one for legislatures to decide on a categorical basis rather than sentencers to decide in individual cases, particularly when the sentencers receive no relevant data about the deterrent effects of capital punishment generally.40 Moreover, the aim could not be to ensure “consistency” or “non-arbitrariness,” given that the ability of the jury under Lockett to extend mercy41 and the absence of controls to limit reprieves at other stages of the selection process promotes inconsistency.42
Yet the defect is not with the idea that a jury should spare any defendant who does not deserve death. In theory, that idea makes sense under the Eighth Amendment because it probably comports with the societal consensus about justice. The conundrum arises because the Court cannot specify with much precision when a death sentence is deserved because there is no clear societal consensus on this issue. The Lockett rule punts on that problem by merely articulating a broad definition of what evidence a jury may consider when deciding to impose the death sentence without clarifying what issue the sentencer is to resolve, and by what standards, based on that evidence.43 Should jurors sentence only the most culpable offenders to death? Should they spare those who have done many good acts in the past but are extremely culpable for their charged crime? Under the current doctrine, it is unclear. As the doctrine stands, jurors can impose death based on concepts as abstract and unproven as a prosecutor’s plea that if they do so it will deter future crime by other offenders.44 Because of this weakness in the doctrine, if consensus quickly dissolves over how to refine the deserts-measures, it is unclear why the Court should reject legislative judgments about how to structure the capital-sentencing decision, even if they seek to impose automatic death sentences for some crimes.
Logically, the Court could achieve the goal by relying on the “proportionality” doctrine, discussed below, and eliminating the individualized-sentencing doctrine completely. A conservative Court could articulate some basic protections that it thinks reflect the societal consensus about deserts, such as a rule that minors should not receive the death penalty, and, with those protections in place, it could avoid claiming that the Eighth Amendment tells states how to run capital-sentencing trials. If legislators conclude, for example, that a prisoner serving life imprisonment without the possibility of parole who kills a prison guard should receive a death sentence automatically, the Court could abstain from interfering. Indeed, why should the Court, when unable to explain the precise problem, rule that jurors hearing the Lockett evidence are, mysteriously, more appropriate decision-makers than legislatures to resolve not only whether the offender fits in the category of the deserving but also how that category should be defined?
There are also good reasons to criticize the breadth of Lockett’s evidentiary mandate. Allowing offenders to present anything about their character, record, or crime potentially makes the sentencing inquiry not just about their “culpability” for their capital offences but also, or instead, about their “general-deserts” based on all of their life’s works.45 Under Lockett, the Court has held that capital defendants are free to introduce sentencing evidence about their life that lacks a “nexus” to their capital crimes.46 The defendant was good with dogs as a child. He was nice to his siblings. He displayed talent and dedication in his middle-school art class. Is such evidence relevant? There is doubt whether a societal consensus exists that the offender’s positive attributes and good deeds should matter rather than only his moral responsibility for an act of homicidal brutality. Lockett arguably goes too far.47
However, despite all of these plausible reasons to roll-back the individualized-sentencing doctrine, there are also reasons for even conservatives to favor retaining the doctrine largely as it is. First, there is a wide range in the culpability of those who commit murder and thus are subject to the death penalty. Murder includes many unintentional killings,48 and even many people convicted of murder who intended to kill are mentally ill or impaired.49 The culpability range has gotten modestly narrower in recent years due to the Court’s proportionality decisions. In the new millennium, for example, the Court has categorically shielded intellectually disabled people50 and juveniles51 from capital punishment. Those decisions arguably help protect against some undeserved death sentences on the view that almost all members of those groups fall on the very low end of the culpability spectrum. Yet, the Court has not done much more with the proportionality doctrine in capital-murder cases, and without rulings that protect more people convicted of murder who have diminished culpability, the individualized-sentencing doctrine arguably remains crucial. Before the need for individualized sentencing would conceivably disappear, the Court would have to shield people convicted of murder who are seriously mentally ill and who are guilty but lacked an intent to kill.52 Without those protections, allowing defendants to plead their low culpability to a sentencing jury could still help avoid the imposition of the death sanction on the undeserving. We cannot be sure. Juries may not consistently honor evidence of low culpability, given that they are not required to give it any weight and are not told that the ultimate issue concerns “deserts,” even with individualized-sentencing rules in place.53 Nonetheless, if juries regularly do weigh such evidence in focusing on deserts, that helps protect against death sentences that amount to retributive excess.
Whether we should maintain the broad Lockett test of relevant evidence covering general-deserts is more debatable, but it might also help to avoid undeserved death sentences. One can see why that is so by asking whether prosecutors should have the chance to present the offender’s record of unrelated crimes and convictions. Many of us, perhaps most, would probably think this evidence relevant to what the offender “deserves,” even if, given the alternative of life imprisonment without parole, we do not need to worry about social protection. But why are all of an offender’s other unrelated crimes relevant to their culpability for the charged crime? There is no compelling explanation. Also, from the defense perspective, what if a capital defendant who is incarcerated pending trial steps in to save a guard from attack by risking their own life? Or what if that capital defendant acted heroically during war-time military service? In Porter v. McCollum,54 the Supreme Court reversed a death sentence for ineffective assistance of counsel in failing to investigate and present at sentencing, among other things, evidence of Porter’s heroic military service in the Korean War.55 Is that evidence relevant to whether an offender “deserves” the death penalty? Maybe most of us, including most conservatives, would say yes, although the information has nothing to do with his culpability for the capital crime. Those examples suggest that general-deserts is a measure we care about, suggesting that the Lockett test is correct.
B. Proportionality Doctrine
The Supreme Court’s capital-proportionality doctrine holds that the Eighth Amendment categorically prohibits the death penalty for some offenses, such as rape, and some offenders, such as the intellectually disabled.56 The existence of the individualized-sentencing doctrine may be reason enough for the Court not to have categorically protected any group of capital offenders through this proportionality doctrine. Both the individualized-sentencing and proportionality doctrines aim to help ensure that no person receives the death penalty who does not deserve it. Yet the imposition of categorical barriers reflects a lack of trust in juries in individual cases to get the deserts-determination correct. Conservatives could plausibly conclude that at least a few people convicted of murder who are, for example, intellectually disabled or under eighteen, deserve the death penalty. Nonetheless, the Court has shielded from the death penalty everyone in those groups. The Court has also prohibited the death penalty for crimes on the fringes of the felony-murder doctrine,57 and all non-homicide crimes against individual persons, even child rape.58 Conservatives who accept the deserts-limitation could plausibly reject all of those decisions on grounds that the individualized-sentencing doctrine correctly allows a more discriminating approach.
Conservatives could also plausibly object to some of the Court’s proportionality rulings more than others. Probably the most objectionable is the Court’s protection of adults convicted of raping children in Kennedy.59 Rape of a child under the age of twelve, as the Louisiana statute proscribed,60 can easily be considered as heinous as an act of murder that could carry the death penalty. Such a crime is typically calculated, and the harm to the victim is potentially severe. The Court was testing the limits of its credibility in claiming a societal consensus against the death sanction in all such cases. Even President Obama, as a candidate, said that he disagreed with the Court’s decision in Kennedy.61
On the whole, however, the Court’s proportionality rulings arguably do appropriately protect against undeserved death sentences. The Court has only categorically shielded a small portion of people convicted of murder from a possible death sentence, and they are generally on the very low end of the culpability spectrum, which, overall, furthers a deserts-limitation. For example, even if culpability should be the primary deserts-limitation, and one believes that a small number of intellectually disabled people convicted of murder are culpable enough to deserve death, there is still great difficulty in determining which ones they are, even with the best expert assistance and top-notch defense counsel. Relegating all of those offenders to imprisonment for life without parole avoids death-penalty mistakes without much cost.62 Conservatives who are charitable could agree.
There is also strong evidence that decisionmakers sometimes err on desert-judgments due to racial bias when given the death option in certain kinds of cases involving defendants of marginal culpability. The historical data on the racialized use of the death penalty for rape of adult victims, where consent and mistake as to consent are possible defenses, makes this point. From 1930, when national statistics began to be kept, to 1972, when the Court struck down standardless systems of imposing the death penalty in Furman v. Georgia,63 405, or eighty-nine percent, of the 455 men executed for rape were African-American, and “virtually all . . . were accused of raping white women.”64 At the same time, it appears that “no white man has ever been executed for raping a black victim.”65 Those statistics imply mistakes in desert-judgments based on racial prejudice, which surely helps explain why the Court, in Coker v. Georgia,66 declared the death penalty disproportionate punishment for the rape of an adult victim,67 although it avoided discussing the racial-bias problem.68
This potential for error based on racial bias might also be a reason never to allow the death penalty for child rape.69 The argument may be more tenuous than for adult rape. Rapes of very young children by adults are arguably more consistently despicable than rapes of adults in that a heinous level of wrongdoing is almost always premeditated and without a plausible defense of mistake regarding consent. On the other hand, the level of violence and trauma involved can still vary widely with child rape, leaving plenty of space for racial biases to operate, and thus, to produce erroneous death sentences. On that view, Kennedy70 was correct. But, if a conservative Court were to disagree, it should at least not overrule Kennedy71 unless it leaves the individualized-sentencing doctrine largely intact.
C. The Narrowing Rule
The Supreme Court’s narrowing rule requires that states articulate “aggravating circumstances” and that the capital-sentencer find at least one aggravating circumstance present in order to impose a death sentence.72 This rule warrants repudiation more than any other aspect of capital-sentencing law. This “narrowing” doctrine arose under the pretense of being required by Furman’s purported call for non-arbitrariness in capital sentencing when, in 1976, the Court upheld three new capital-sentencing statutes that actually allowed for arbitrariness.73 In upholding those statutes as constitutional, the Court pointed to provisions in the statutes that required an aggravating circumstance in order to impose a death sentence. The Court claimed that these provisions showed that the statutes promoted consistency.74 This narrowing rule, and the ideal of consistency that purportedly underlies it, could be seen as justification for rolling-back the individualized sentencing doctrine. Because such narrowing categorically—and through legislation—limits who is subject to the death penalty, the argument goes, individual sentencing is less critical to ensure that only the deserving receive the death penalty.
But the proposition that the narrowing rule actually promotes this goal is wildly unrealistic. For example, Georgia’s statute75 was one of those under scrutiny, and with ten statutory aggravating circumstances that together covered almost all murders,76 no serious narrowing occurred.77
To be sure, individualized sentencing also conflicts with the goal of achieving consistency in capital sentencing because individual juries still decide who receives the death penalty and who does not. However, this argument is a red herring. As we have seen, the Eighth Amendment as a regulatory tool is about a substantive standard—the deserts-limitation—not the idea that there is justice in equality. The Court has never required that sentencing systems limit the articulation of aggravating circumstances.78 For nearly three decades, the Court has declined to require that individual aggravating circumstances genuinely narrow who is subjected to the death penalty.79 That means there is still no meaningful narrowing required. The Court’s reluctance to demand substantial narrowing makes sense if the Cruel and Unusual Punishments Clause80 regulates capital sentencing simply by revealing a substantive standard that only the deserving should receive the death sanction.
On that view, conservatives should not use the purported “equality” mandate of Furman as a reason to neuter the individualized-sentencing doctrine. It would be more consistent with the deserts-limitation to repudiate the idea that the Eighth Amendment demands consistency and, thus, eliminate the narrowing rule.
III. Symbolism and Other Forces Favoring the Status Quo
Death sentences have become increasingly uncommon since the 1990s,81 and there may be few, if any, states that want to revert to a robust use of the sanction. The penalty brings problems beyond those caused by Supreme Court regulation that make its use, except in the most extraordinary cases, a questionable policy. For example, concerns about the conviction and condemnation of innocent persons helped convince New Mexico officials to abolish the death penalty in 200982 and Illinois officials to do so in 2011.83 Studies in many states have also revealed evidence of race-based prosecutorial decision-making at stages other than sentencing.84 There is also doubt that the death sentence deters crime more than a life sentence without the possibility of parole.85 Those kinds of concerns favor avoiding the death penalty. States may thus see benefits in providing a separate sentencing trial and in following Lockett’s broad evidentiary standard, even if not required to do so by the Supreme Court. We should not forget that in the pre-Furman era, the movement among states had been toward allowing a separate and expansive capital-sentencing inquiry.86 To the extent that such views hold sway today, there may be few, if any, states that will ask the Court to significantly roll-back restrictions on the death penalty.
If only a small number of states seek to overturn doctrines favorable to capital defendants, a conservative Court majority might decline to reverse course because there is little to be gained and more to be lost. As we have seen, the Court’s capital-sentencing law generally can be understood to serve an Eighth Amendment goal of ensuring that only the most deserving offenders suffer the death penalty. While that is far from perfect justice to those conservatives who believe that many who deserve the sanction gain reprieves, it is a worthwhile form of justice nonetheless.
The symbolism of the death penalty also remains sharply disputed. Capital-sentencing law is in some sense like a contested monument in a corner of a town square. One group sees white supremacy, while another sees the American dream. For some, it represents a history of racial oppression and savagery. For others, it represents the idea that by our good and bad deeds the world will know us and we might get what we deserve. The Court’s work on capital-sentencing doctrines since the 1960s may have had only a modest influence in promoting fairness and thus influencing the debate about the meaning of the death penalty. Nonetheless, the Court’s restrictions on the death sanction have been viewed as important constitutional reforms to many, and thus the Court could receive substantial criticism for attempting to roll them back. And as we have seen, these existing restrictions generally further the fundamental goal of the Eighth Amendment. On that view, a conservative Court may believe it has more important matters on which to weather the controversy involved with backtracking on past decisions.
Conclusion
When viewed in its totality, the Supreme Court’s capital sentencing jurisprudence reveals a motivating principle of ensuring that only offenders who deserve the death penalty receive it. The doctrines that have been developed under this jurisprudence may seem imperfect both to those who believe that no one deserves the death penalty and to those who believe that many people who deserve the death penalty evade it. However, on whole, the Supreme Court’s current death penalty doctrines help achieve a worthy goal. From an abolitionist perspective, it would be a mistake to roll-back these protections and subject more people to the death penalty in the name of consistency. And from a conservative perspective, any attempt to roll-back these protections to capture more offenders who they believe deserve the death penalty would not be worth the political, symbolic, and human costs.