Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

The First Stage of the War: Major Successes for Death Penalty Abolitionists in the 1960s and Early 1970s

This war began back in the mid-1960s. At the time, death penalty advocates held out little hope that they could succeed with a direct, categorical constitutional challenge to the death penalty itself, so they devised a strategy for bringing a series of broad procedural challenges to the way states imposed the death penalty (such as challenges to jury selection, and to verdict forms in capital cases) in the hope of gumming up the works for as long as possible.

This "sand in the machine" strategy, as one death penalty abolitionist called it, enjoyed considerable success. The number of executions started falling precipitously in the late 1960s, as the abolitionist legal challenges worked their way through the judicial system.

Indeed, the abolitionists were so successful that, by the early 1970s, the Supreme Court was prepared to tackle the overarching question of whether the death penalty, in itself, violated the Eighth Amendment's prohibition on "cruel and unusual" punishment. And in the 1972 decision Furman v. Georgia, a bare 5-4 majority of the Court's Justices struck down every death penalty statute in the country on that ground.

Furman, however, was an inherently unstable opinion. Each of the five justices in the majority wrote a separate opinion giving a different rationale for why the death penalty violated the Eighth Amendment. Moreover, the key swing vote, Justice Byron White, seemed to suggest that the death penalty would probably be constitutional if it were imposed more regularly.

Meanwhile, the dissenters were unified in wondering, not unreasonably, how a punishment that the Constitution explicitly contemplates (as when it says a person cannot be deprived of "life" without due process) could be held to be unconstitutional across the board.

The Mid-1970s and Mid-1980s: A Major Loss for Abolitionists, as Capital Punishment is Held Constitutional, But Significant Successes on the Procedural Front

A mere four years later, in 1976, the Court relegated Furman to the dustbin of history. In Gregg v. Georgia, the Court reversed course and declared that states could carry out capital punishment; to do so did not inherently violate the Eighth Amendment. At the same time, however, the Court promised to carefully regulate the death penalty process, in order to ensure that a heightened level of due process - a level appropriate to this unique form of punishment -- was observed. In other words, the Court said that states could have the death penalty, so long as they imposed it with special care.

Unfortunately, this Solomonic effort to resolve the dispute over the legality of capital punishment was a disaster in practice. Many states took seriously the Court's pledge to let them move forward with executions. Dozens reinstituted the penalty.

But by the same token, death penalty abolitionists took advantage of the Court's promised regulation of the death penalty process to tie up almost every capital case in a welter of appeals and habeas petitions. After all, each day gained was another day of life for the inmate.

They were able to do so for two key reasons. First, the death penalty defense bar was filled, at the time, with tactical geniuses - drawn, perhaps, by the profound stakes, the ability for clever maneuvering to make a difference, and the complexity of the area of law. Second, because death penalty cases are often rife with errors, the talented defense attorneys drawn to death penalty work had plenty of raw material for multiple rounds of appeals, including appeals raising many novel issues that the Supreme Court itself had to decide.

For the decade after Gregg, the abolitionists enjoyed significant success at the Court. While the more conservative justice fumed, the anti-death penalty forces had enough support at the Court to basically maintain a death penalty moratorium.

In the Late 1980s, a More Rightward-Leaning Court Begins to Cut Back on Both Death Penalty Defendants' Rights, and the Procedures to Which They Had Been Entitled

After the mid-1980s, however, as the Court's ideological balance shifted rightward over time, the tide turned. In the 1987 case of McCleskey v. Kemp, the Court, by a 5-4 vote, rejected the last major systemic challenge to the death penalty - a claim that Georgia's system of capital punishment was rife with racial discrimination and, thus, violated the constitutional guarantees of due process and equal protection.

After McCleskey, the Court also started cutting back significantly on the rights of death penalty defendants and foreshortening the appellate process in capital cases. Gradually, with fewer weapons in the death penalty defense arsenal, the number of executions began to rise.

Despite this shift, however, the Supreme Court and the rest of the federal judiciary never really gave the states a green light on capital punishment. There was always another procedural question to be litigated; there were always delays in finding competent attorneys, problems with the fairness of trials to be hashed through, and doubts about which types of criminals, of what age and mental capacity, truly deserved to die. More recently, there have also been pressing concerns about the very real possibility of executing the innocent - concerns that have arisen from incidents in which exculpatory DNA evidence has revealed that innocent persons have been convicted, including for capital offenses.

As a result, the lines on death rows became ever longer, the delays between conviction and execution became no shorter, and the costs of the whole system became ever greater.

The Three Death Penalty Factions on the Current Court

Inside the Court, this persistent state of affairs created rage within conservatives like Justices Antonin Scalia and Clarence Thomas, who think the judiciary has no business micromanaging the system of capital punishment and, to the contrary, has an obligation to allow states to carry out a penalty that the Constitution permits them to impose.

On the opposite side of the political spectrum, however, the Court's liberals lament the callousness of the conservatives in light of the deep flaws in how states actually carry out their death penalty systems, and the conservatives' refusal to accept the simple truth that the death penalty - final and irrevocable - is simply "different" from other punishments and must be treated accordingly.

Finally, in the middle lies a group of justices who would like to end the death penalty stalemate but who are not prepared to completely deregulate capital punishment, as Scalia and Thomas would have it. These justices, seeking a middle ground, have yet to find a workable solution to a bitter stalemate that is now almost five decades old.

How Baze v. Rees Illustrates The Court's Unending Death Penalty Conflict

The recent decision in Baze v. Rees, the lethal injection case, aptly illustrates this entire state of affairs.

The Court's lead opinion, a three-judge plurality written by Chief Justice John Roberts, rejects petitioner's challenge to Kentucky's three-drug cocktail for carrying out lethal injection because, on the evidence presented, petitioner had failed to show that Kentucky's methods "create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death."

But what about the other 35 states which use virtually identical lethal injection protocols?

As other justices pointed out in their own opinions, the Court's ruling leaves open the possibility that other petitioners, in other cases from other states, might be able to adduce greater evidence that, in actually carrying out their own protocols, their own states actually deviate from those protocols in ways that create the "substantial risk" that the plurality admits would render such a system constitutionally infirm. In other words, the Court's holding may have invited up to thirty-five highly fact-specific further challenges.

A likely result of Baze, therefore, is another round of litigation in the lower courts. It seems likely, moreover, that each of the many lethal injection challenges likely to follow on Baze's heels will succeed or fail based largely on extensive discovery into how individual states actually carry out each and every execution - as well as based on whether a given death penalty defendant draws a sympathetic or unsympathetic judge.

This, in turn, of course, will mean substantial delays in many cases, while death penalty abolitionists figure out how to open yet another front in this endless war. The more things change…

Inside the Court, meanwhile, Justice John Paul Stevens took the occasion of Baze to declare that, after more than 30 years' experience with death penalty cases, he had come to the tragic conclusion that the system is irretrievably broken, and is maintained only because our elected representatives have abdicated their responsibility to think hard about it true costs and benefits. Accordingly, Stevens called on the Court to re-examine the death penalty's constitutional foundation anew.

Stevens's call echoed, to many observers, a similar pronouncement by another Justice, also informed by a long and illustrious career: Justice Harry Blackmun's statement, "From this day forward, I no longer shall tinker with the machinery of death."

It was no surprise, then, that Steven's declaration in Baze drew from Scalia as harsh a personal rebuke as I can ever remember reading in a judicial opinion: Scalia accuses Stevens of trying, with supreme arrogance, to set himself up as a philosopher king who "reigns over all."

There would seem to be no escape from all this. The judiciary, like the country as a whole, is in a complex equipoise over the death penalty. Some are for it aggressively. Some oppose with equal passion. Many are okay with the principle, but have doubts about actual practice. And this means we will stumble along rather pointlessly, with a death here and a death there. with little rhyme or reason to what we do, but a terrible bitterness at our own indecision.