Why and How the Supreme Court Should End the Death Penalty

Abstract

In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion. The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty. The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.