Maryland Gov. Robert Ehrlich allowed an execution to proceed last month. Hardly big news, since the United States has averaged close to 40 executions per year over the last 25 years, with a nontrivial number occurring in states outside the deep South. What’s notable about the Steven Oken execution, however, was that Ehrlich changed the wording in the script handed him by his predecessor—he refused to apologize for the death penalty.
In 2002 Maryland’s Democratic governor, Parris Glendening, ordered a moratorium on all executions until a state-commissioned academic study could satisfy him that the death penalty was not being inflicted unfairly. The University of Maryland then issued its study, concluding that, yes, troublesome racial disparities still existed in the Maryland system. But Ehrlich was unimpressed, concluding that his own case-by-case review of death sentences could ensure their fairness. Since we execute far too few killers to really influence the murder rate, the best way to understand the modern American death penalty is to see it in the way an anthropologist might assess cultural symbolism: Acting under severe constraints imposed by our own constitutional system, we execute some people here and there, episodically confessing worry and even shame that we’re not quite sure about what we’re doing. Then we nervously try it all again. Politically, we can’t live without capital punishment. Morally, we have some trouble living with it. So we impose just enough of it to keep the art form alive.
To be sure, capital punishment isn’t going away in the United States. No state death penalty law is going to be legislatively repealed or judicially abolished in the lifetime of anyone reading this article, because the big political and legal debates over it were pretty firmly settled a few decades ago. Instead, the public reassessment of the death penalty takes the form of these episodic apologies, or short-term suspensions of its use; aftershocks, in effect, of the moral agonizing of those earlier debates. Maryland was the second state, along with Illinois, in which a formal moratorium on executions was imposed, and the possibility for more moratoriums is now being argued in legislatures of other states, most notably North Carolina. But if you view a moratorium as a sort of act of state self-criticism—whereby one branch of government or another confesses that it has administered the death penalty in a way it finds embarrassing—there’s a longer history to the moratorium movement and more instances of it than most of us realize.
It’s worth remembering how Justice John Harlan admonished the Supreme Court before it set out on its own experiment in fine-tuning capital punishment. In the 1971 case McGautha v. California, he warned: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” In the famous Furman v. Georgiacase the next year, the Supreme Court, by a 5-4 vote, struck down all existing death penalty statutes because they left juries with largely unconstrained discretion to decide which murderers (and occasionally rapists and kidnappers) to execute, thereby inviting both unpredictable and flagrantly racially discriminatory outcomes. Some of the justices took the occasion of Furman to utter a cri de coeur, apologizing for the use of the death penalty as an instrument of racial and political oppression in American history and declaring that it should, in an act of social redemption, be abolished altogether. Another set of justices made a more partial apology, agreeing that these laws were befouled by unfairness but promising that a better, fairer death penalty could still be created. That route proved the more attractive, and about three-fourths of the states then passed new death penalty laws to satisfy the Supreme Court. These new laws constrained jury discretion with a menu of substantive criteria to decide death versus life and also put in place new procedures—especially a separate penalty-phase trial—to implement them. The Supreme Court approved those statutes in 1976, and executions soon resumed.
But after a decade under the new laws and 80 or so executions, in the 1987 case of McCleskey v. Kemp the Supreme Court faced the claim that if the new, better death-penalty system was an experimental effort at redemption, it had failed. The defendant there offered evidence that even the new statutes proved to be rife with empirically demonstrable racial discrimination, because a major factor in determining whether a convicted killer got death rather than life was the race of his victim. Surprisingly, in his majority opinion, Justice Lewis Powell was not only willing to accept the statistical evidence, he even seemed to concede that a kind of racial discrimination, perhaps a half-conscious kind, probably extends throughout all phases of the criminal justice system. Indeed, it was for that rather morally ambivalent reason that Powell rejected McCleskey’s claim. Powell feared that to reverse this particular death sentence would be to effectively declare American criminal justice wholly illegal, since even though it’s almost impossible to prove racial motivation in any one case, we all know deep down that racial bias infects the judgments of all the discretion-wielding figures in the criminal justice system—judges, prosecutors, and jurors. Powell’s was a strange kind of apology. In effect, he apologized for what he had no choice but to continue doing, uttering the constitutional equivalent of, “This hurts me (almost) as much as it hurts you.”
A few years later and in reflective retirement, Justice Powell apologized in an interview for that half-apology, saying he wished he had voted to reverse in McCleskey. At about the same time, Justice Harry Blackmun, who had rejected the defendant’s claims in both 1972 and 1976, offered his own (full) apology and spontaneously imposed his personal one-ninth of a constitutional moratorium. In a published opinion he suddenly and dramatically announced that he would categorically vote to reverse any death sentence that came before the Supreme Court in any form. As he put it, he would “no longer tinker with the machinery of death.”
As these judicial apologies played out, various states worried over these questions as well, and new forms of apology emerged. New York had not responded to Furman with a new death penalty law, and in the late 1980s and early 1990s, New York’s Gov. Mario Cuomo blocked any reinstatement of the death penalty. But Cuomo was voted out of office (partly on that ground) and the legislature rammed a new law through in 1995. This was a very strange new death penalty law, however. It was an apologetic, even a kind of politically correct one. It set the bar so high for a death sentence, imposing such detailed and complex criteria for aggravating circumstances and such high procedural hurdles, that it seemed almost designed to anticipate and satisfy future constitutional attacks. The result has been a kind of de facto extension of the de facto New York moratorium—no executions have taken place in New York in the decade since.
Then Illinois stepped into line, in the most dramatic fashion. By the late 1990s discrimination and caprice were no longer the major visible issues in attacks on the death penalty. Rather, with the advent of DNA testing and other methods of investigation, the public learned that many death sentences rested on convictions that were categorically false, and the risk of flat-out error weakened popular support for capital punishment. Convinced that the prosecutorial system in Illinois was unable to address these concerns, as well as the old concerns about racism and caprice, soon-to-be-leaving-office Gov. George Ryan simply commuted the death sentences of all 167 death row inmates in his state in January 2003, issuing the most dramatic apology in the recent history of death penalty mercy. The new governor of Illinois has for now sustained the moratorium, but the more interesting new form of confession of public error has been the act of the Illinois legislature itself, in direct response to the Ryan commutation.
New amendments to the Illinois criminal code make New York’s legislative apology seem almost tepid. Some of the changes in the law are careful fine-tunings of the legal protections against abuses of the death penalty—for example, the new law removes mere participation in drug crimes as an aggravating factor that can support a capital sentence. It provides for broad post-conviction access to DNA testing and waives away any state interest in the timeliness of these and other issues. And in an act of gratuitous legislative symbolism, the new law adds the statutory mitigating circumstances of “extreme emotional or physical abuse” and “reduced mental capacity.” This provision may have little legal significance (defendants have a constitutional right to present mitigating evidence anyway), but it stands, perhaps, as a public admonition to, and apology for, the past omissions of capital defense lawyers—or maybe just as an expressive act, unconcerned with any legal effect.
In what may be the most remarkable substantive provision of the new Illinois law, the state appellate court itself is allowed to vacate any death sentence if it finds it “fundamentally unjust as applied to the particular case … independent of any procedural grounds for relief”— thus enabling appellate judges to grant mercy to otherwise properly sentenced capital defendants because, in the view of the appellate court, the technical and procedural rules by which they were supposed to monitor capital sentencing could not capture the moral concerns that society demands. Finally, the new statute legislates huge changes in the criminal procedure rules governing the police. Changes include unusual new requirements for videotaping interrogations, complex new regulation of police line-ups, and restrictions on accusations by informants or uncorroborated eyewitnesses, all going far beyond any constitutional requirements. These and a host of other provisions are essentially apologies for the whole history of abuses by the Illinois police.
So while Gov. Ehrlich last month gave an inverted “I’m not apologizing for what we knew all along” version of the McCleskey opinion, in other states, in various ways, we’re likely to keep seeing varieties of fractional and full apologies over capital punishment. To paraphrase Justice Blackmun, we’re still tinkering with the machinery of death. Ambivalent judicial moderates like Justice Sandra Day O’Connor rule that we cannot execute the retarded (though leaving to the states what the criteria for retardation are) and may yet forbid the execution of those who committed their murders before the age of 18. New York has just learned that even its own politically correct law wasn’t progressive enough; the state’s highest court has blocked administration of the death penalty because of a key legislative glitch. (Under the new law a jury might infer that if it deadlocks at the penalty phase the default would be life with parole, and hence some jurors might be coerced into an undesired death sentence.) Some judges and even some lawmakers will continue to demand that we drop the whole matter and apologize for ever trying. Others will apologize for yet another manifestation of error but promise to get things right next time for sure.
And Justice Harlan? He might be inclined to mutter a few I-told-you-so’s.