INTRODUCTION :: Political life is sometimes tragic. As a conservative instrument for safeguarding the government’s obligation and ability to control the governed (which, as Madison reminds us, is a prerequisite for the exercise of self-control on the part of the government), and for preserving tolerable political and social order, our constitutional framework recognizes the necessity of exercising sovereign power to define and enforce criminal and penal laws against its citizens, sometimes in aggressive and seemingly harsh ways. On occasion, this means that the state will determine, based on the lived experiences and moral sentiment of the community as expressed by its political institutions, that some wrongdoers should be punished with death. No aspect of modern penal law is subjected to more efforts to influence public attitudes or to more intense litigation than the death penalty. The inquiries (they are distinct) concerning the constitutional propriety and political wisdom of capital punishment, then, reflect substantially our acknowledgment that who and how we punish are defining characteristics of the political community.
The contemporary discourse on capital punishment, however, also offers important commentary on the broader-and dangerous-modern impulse to satisfy public appetites and relieve the citizenry of the pains of life in a democratic republic, an impulse that has become all too prevalent in the contemporary American legal and political mind. The impulse has its roots, of course, in the modern concern for rights -a concern which, when validated, necessarily constrains official power. Such constraints are not necessarily undesirable. But when the vindication of rights implicates, indeed contravenes, the community’s sovereign power to express tolerably a moral sentiment about defining and punishing crime, particularly when courts do so in the name of an abstract and perfected version of “liberty” that seeks to maximize human dignity through autonomous individualism and minimize reasoned restraints to control the people, these actions have unique potential to intolerably undermine the government’s ability to control the people and compromise the prescribed roles of political institutions in the constitutional structure. In related ways, this impulse also is rooted in modern government’s continuing obsession with placating the factious spirit and passions of an increasingly demanding public, an obsession that would have been troubling to members of the Founding generation who devised a constitutional system that consciously places some distance between the government and the governed. Formal institutional arrangements-the institutions and the “auxiliary precautions” that anchor them-are therefore critical to preserving proper equilibrium in the day- to-day exercise of self-government of and by human beings rather than angels, guided by the power of reason.
For now, however, capital punishment in America is withering towards its death- slowly, gradually, and incrementally-but surely nonetheless. Particularly in light of the many newsworthy events that marked capital punishment law and practice during 2005, which was an important year in the life of the death penalty, much has been written recently about this trend. This commentary, however, consistently overlooks the complex institutional consequences of the primary factors affecting the death penalty’s demise. Although crime statistics, public concerns about actual innocence, and legislatively-adopted sentencing alternatives are cited as factors, two other simultaneous developments deserve special focus as noteworthy contributors: a mass media-television, film, news organizations, and the Internet-that possesses enormous potential to influence and shape public attitudes and perception of capital punishment; and a legal regime that, with the blessing and generous assistance of the United States Supreme Court, has defined political opposition to capital punishment as a proper subject for constitutional litigation, which is increasingly successful. Both, in their own ways, can affect the integrity of the institutional arrangements of our constitutional republic, though as a contributor to the demise of capital punishment, the former is more attenuated; the latter is the more deeply troubling.
Indeed, the federal judiciary, and the Supreme Court specifically, is not merely a participant in the demise of capital punishment it is a driving force, without which much of the progress of contemporary abolitionists would be more significantly constrained. We have seen its likeness in the past, when in 1972, Furman v. Georgia first killed capital punishment, albeit temporarily, in the modern era by invalidating existing laws and requiring entirely new systems of “guided discretion” in imposing the death penalty. The Furman-era dismantling was sudden and wholesale, not incremental, as the dismantling is occurring today. Indeed, perhaps it is the complex post-Furman “process” regime that has made contemporary abolition so cumbersome and slow. Although the Rehnquist Court, in particular, revived a sense of deference to political action that respected the criminal justice system’s interest in comity, finality, and federalism, the Court never quite overcame its post-Furman compulsion for specialized rule-making in death penalty cases. The Court, rather, continued employing its confusing, confused, and ultimately unprincipled “death is different” rationale for intervention, which in recent years has culminated in an unprecedented (and, frankly, arrogant) description of the Court’s role in capital litigation. Atkins v. Virginia, which recognized a categorical exemption from capital punishment for the mentally retarded, and Roper v. Simmons, which recognized a categorical exemption for those who commit their offense while under the age of eighteen, are leading recent examples, though by no means the only ones in the categorical exemption area. They are also examples of the modern incrementalist strategy for killing capital punishment: As per se challenges to capital punishment are unlikely to succeed, death penalty opponents today instead target narrow and discrete death penalty practices primarily through litigation, creating seemingly small but significant court victories that, over time, slowly erode the scope and availability of death sentencing. Thus, the Court’s understanding and enforcement of its largely uncircumscribed role in restricting the government’s ability to employ capital punishment, and in interfering with fair and reasonably conducted capital litigation proceedings, may be welcome news for death penalty opponents. Indeed, notwithstanding public misunderstanding about the proper role of the Court, public respect for the Court’s pronouncements is quite high, and thus the Court has awesome potential to influence public perception, opinion, and action (or inaction) on this subject and others. But this judicial phenomenon-what the authors of the Deconstitutionalization of America have aptly termed the “judicialization of American life” -has only weakened the Court’s legitimacy as an independent voice for the rule of law and has undermined the vitality both of political institutions and of responsible self-government in America.
Whether a decent and just society should punish wrongdoers with death is, like political life itself, complicated. Even those of us (in my case, retributivists) who think that it should (indeed, that in some circumstances, it must, in order to remain decent and just), are compelled to acknowledge the concerns that animate the opposition on that question. This Essay, though, does not rehash the arguments concerning the political wisdom and expediency of capital punishment. Rather, as a constitutionalist critique, this Essay explains that there is great danger to constitutional and republican government when those arguments, and public opinion and public sentiment associated with them, become the foundation for judicial action.
Accordingly, I seek here to reexamine, indeed to reformulate, the national discourse on capital punishment by urging greater consideration of the consequences for form-the forms of the Constitution and its institutional arrangements-that attend contemporary death penalty jurisprudence. This Essay identifies capital litigation as a factor significantly affecting the vitality of capital punishment in modern America, and one in which arguments about the wisdom and desirability of death penalty practices find expression in requests for judicial relief. This Essay thus offers a normative critique of two significant strands of recent Supreme Court death penalty cases. Primarily, it examines those recent cases involving categorical exclusions from capital punishment-Atkins and Roper-both of which have simultaneously distorted the objective national consensus standard and rendered it irrelevant in light of the Court’s intolerably immodest understanding of its own authority under the Eighth Amendment. Secondarily, this Essay examines those cases involving reliance on federal collateral litigation to restrict imposition of capital punishment, cases that appear to soften the traditionally rigorous standards for collateral relief. These actions are helping to incrementally erode capital punishment, though in a manner distinct from the Furman-era dismantling. More importantly, I argue that omnipotent and omniscient judicial regulation of capital sentencing endangers the political institutions responsible for controlling the people in our constitutional system. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state law enforcement interests, the Court diminishes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional media for filtering out public passions and building coalitions for responsible democratic action to control the people. Consequently, this Essay concludes that essentially political arguments are now-more than ever before-dominating both the Supreme Court’s capital punishment jurisprudence and constitutional litigation involving the death penalty in ways that threaten the Court and constitutional democracy.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital