Evolving Standards of Decency in Justice System

Deadly Justice, Ch 17 Pass the Gregg test, or fail the Furman test? (Also catch-up from last time on evolving standards) March 21, 2022 Baumgartner, POLI 203, Spring 2022 1

Some announcements first Guest speaker on Wed March 30: Lynden Harris, editor of RHRN. Come with your questions about the people involved, the process of gathering these stories. Go to Hidden Voices website and check it out ahead of time: https://www.hiddenvoices.org/ She will be here in person. Guest speaker phoning in for part of the lecture on Monday April 4 Marc Bookman, Exec Director of the Atlantic Center for Capital Representation in Philadelphia Attorney for Terry Williams, currently imprisoned in Pennsylvania (See links and resources on the class website. Please make sure to read the chapter by Bookman about Williams. Also if you can, watch the Death Row Stories episode about the case.) Baumgartner, POLI 203, Spring 2022 2

Catch-up from last time Evolving standards of decency What that means How contested it is Foreshadow to our class on March 28, about the possibility of an extension of Roper v. Simmons, eliminating the death penalty for those under 18. Why 18? Baumgartner, POLI 203, Spring 2022 3

Evolving Standards of Decency Weems v. United States (1910): Eighth amendment is not fastened to an absolute but may acquire meaning as public opinion becomes enlightened by a humane justice Trop v. Dulles (1958): Eighth amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society Atkins v. Virginia (2002): DP not available for intellectually disabled. Roper v. Simmons (2005): DP not available for juveniles How were those considered? Let s look at Atkins and Roper Baumgartner, POLI 203, Spring 2022 4

Atkins v. Simmons (2002): No death penalty for those with intellectual disabilities (IQ < 70) But consider the relatively recent decisions in the other direction Penry v. Lynaugh (1989): ok to execute those with disabilities So what happened between 1989 and 2002? That was a pretty quick change. The Court noted several things: State legislatures changed laws on the topic, generally in the direction of restriction Scientific understanding changed General level of use declined The Court just changed the interpretation, 13 years later Baumgartner, POLI 203, Spring 2022 5

Roper v. Simmons (2005): No DP for juveniles But go to DPIC and search in the execution database, click on juvenile: we ve done it 22 times, including 13 times in the period of 1998 through 2003: https://deathpenaltyinfo.org/views-executions Thompson v. Oklahoma (1988): no one under 16 Stanford v. Kentucky (1989): ok to execute 16, 17 year olds So again, in 1989 it s ok, then in 2005 it s not: a big change in 16 years Baumgartner, POLI 203, Spring 2022 6

So, what happened so quickly? In 1989, these things were AFFIRMED; in 2002 and 2005, they were REJECTED Re-read pp. 323-324 of the book Lots of different indicia were cited by the Court: how many states allow it (trend, rather than number); how often it has been done (e.g., actual use, no matter what the law); The direction of legislative actions Direction / development of social science research on juveniles International trends, decisions from other countries many other factors cited, including the Court s own judgment Very strong reactions / rejections from the Originalists Scalia, Rehnquist, Thomas, O Connor: no consensus, in fact a majority of states allowing DP also allow it for juveniles, so no legislative / elected officials have rejected it. Evolving standards a very interesting issue, very contentious Baumgartner, POLI 203, Spring 2022 7

Would the original constitution have allowed execution of a 7 year old? Justices Stevens and Ginsberg, concurring in Roper v. Simmons: https://supreme.justia.com/cases/federal/us/543/551/concurrence.html Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (describing the common law at the time of the Amendment s adoption). Baumgartner, POLI 203, Spring 2022 8

Very strong reactions from the others Justice O Connor agrees with this prohibition, but dissents anyway, based on the idea that SOME 17-year olds may deserve death: https://supreme.justia.com/cases/federal/us/543/551/dissent.html Wow was Justice Scalia unhappy with all this. And several other justices joined his dissent. He did not like: How the consensus was calculated The use of own judgment The use of international norms Many other elements of the decision: this is no way to run a legal system https://supreme.justia.com/cases/federal/us/543/551/dissent2.html Baumgartner, POLI 203, Spring 2022 9

So what can we say about evolving standards? It s clear that we no longer do many things that we once did, particularly hundreds of years ago. So this is an important part of the constitution. It s also clear that conservative Justices object to the very concept of evolution they believe in and focus on the original meaning of the constitution, at the time it was written. A wide variety of indicators are used to judge whether societal standards are changing, but some justices regard these as irrelevant. The constitution does prohibit cruel and unusual punishments: So therefore some assessment of whether a punishment is unusual versus relatively common is part of the constitution. But, no guidance on how unusual is too unusual That s why we litigate and fight through the courts to get a Supreme Court ruling! Baumgartner, POLI 203, Spring 2022 10

The Roper Extension argument Around March 28 we ll be talking about the current movement to push for an extension of the age limit of Roper, 18, to 21. Evolving standards of decency Evolving standards of neuro-science Sorry fellas but this entire argument is that the male brain is not fully developed until a later age, beyond 21. Nothing personal! Baumgartner, POLI 203, Spring 2022 11

OK, on to the last chapter of Deadly Justice Given all the evidence we have considered, does the modern (that is, new and improved death penalty system achieve the goals of the Justices in Gregg v. Georgia (1976), or does it still have the flaws that the Justices rejected in Furman v. Georgia (1972)? Pass the Gregg test, or flunk the Furman test? Baumgartner, POLI 203, Spring 2022 12

Passing the Gregg test Narrow targeting Substantial proportion Proportionality review: it should only apply to the worst of the worst. Free from bias: Race, gender, class, type of attorney, etc. Free from caprice: it should not be weirdly random, for example based on geography (e.g., not a randomly selected handful of offenders, like being struck by lightning ) These were all problems noted in Furman, and were supposed to have been fixed by the complicated new system imposed over the years starting with Gregg Baumgartner, POLI 203, Spring 2022 13

Wonton and freakish, like being struck by lightning (among convicted murderers) One justice s opinion focuses on the capricious and arbitrary nature of the punishment Many of those given the death penalty are NOT guilty of the most heinous crimes. Concern about impact of race here, but no clear finding that race drives it. No procedural safeguards to guarantee fairness Extreme rarity of the punishment: who gets selected, it is like being struck by lightning Note: One solution to this freakishness would be to make the death penalty mandatory. North Carolina did this, in fact, in response to the ruling. Baumgartner, POLI 203, Spring 2022 14

Deterrence Is it acceptable to punish on person more severely just to make an example ? Does that mean that we are treating a human life as an object, merely a means to an end? Is it constitutionally acceptable to treat a person as an object, or is that inhumane? Given the low rate of usage of capital punishment, is there any deterrent value, anyway? Note the difference in the Deterrence argument now that more contradictory and inconclusive studies have been done, compared to the situation in 1976, when it was more widely accepted. Baumgartner, POLI 203, Spring 2022 15

How many homicides, and how many are in death penalty states? Baumgartner, POLI 203, Spring 2022 16

Is it still like being struck by lightening? Yes. Executions: max of 0.6 per 100 homicides Death Sentences: never as much as 2 per 100 homicides Baumgartner, POLI 203, Spring 2022 17

Death Sentences: A low number compared to homicides. Executions: Even Lower Baumgartner, POLI 203, Spring 2022 18

Geographic Concentration: Even greater now. Before Furman After Gregg Baumgartner, POLI 203, Spring 2022 19

Geographic Concentration: Executions in particular Executions by state Death Sentences by state Baumgartner, POLI 203, Spring 2022 20

Other statistical elements clear from the chapters previously discussed I won t review the evidence about cost, racial bias, deterrence, and so on here. Clearly, the system fails the Furman test on these and other matters Baumgartner, POLI 203, Spring 2022 21

A litany of old problems still here: Low rate of use invites caprice and arbitrariness Geographical concentration: even worse extra-legal disparities: Race, gender, etc. For sure. Narrow targeting and substantial proportion : Nope. Deterrence: at issue in Gregg, but a settled matter now. No evidence. Further, note that the justices in Furman suggested that even if there was a deterrent value, killing a person in order to dissuade another from homicide is not fair to the person killed: does not comport with human dignity. Evolving standards: cruel AND unusual so use matters. Baumgartner, POLI 203, Spring 2022 22

New problems not discussed in Furman Innocence: over 185 found to be innocence Reversals: over 70 percent reversed Stays: typical, sometimes many times, or at the last minute Delays: typically now over 20 years from sentence to execution, often longer All these can be considered elements of torture) Unwillingness of governors to commute death sentences (This was previously more common, very rare in the modern period; see next slide) Cost (Changes the political calculus, if not the moral / legal issues) Baumgartner, POLI 203, Spring 2022 23

Governors almost never commute death sentences: 306 total, but most of these associated with mass decisions, not individual mercy. Baumgartner, POLI 203, Spring 2022 24

So, what can we say? You ve read the entire book now, what do you think? I d love to have your suggestions for a second edition. What new material should we include? What topics need more attention, besides just being updated? What did you find confusing? What topics need more attention, because they are so interesting and deserve more treatment compared to what they received? What topics can we skip, how can we shorten / condense the book? Was there any fluff? Please feel free to email with any suggestions. Baumgartner, POLI 203, Spring 2022 25

This Wednesday we do a review and an exercise. Come with questions and things you d like to talk about. We ll also do a quick exercise and discuss. Baumgartner, POLI 203, Spring 2022 26