An Invitation to End the Death Penalty

The time is now, and this opportunity might not present itself again soon.

U.S. Supreme Court Associate Justice Anthony Kennedy.
Supreme Court Justice Anthony Kennedy may be open to ending the death penalty.

Photo illustration by Juliana Jiménez. Photos by Shutterstock and Chip Somodevilla/Getty Images.

The death penalty in the United States will end.      

In the scholarly community, the debate is over. The proof that capital punishment doesn’t work is as conclusive as the evidence that human activities have caused global warming. After 50 years of research, we know that capital punishment either doesn’t deter or deters very little, and then only if practiced with such regularity that it virtually guarantees errors. We know that since 1973, 156 people have been sentenced to die and subsequently exonerated. We know that whether a murderer is executed is largely the product of the victim’s race and geographic bad luck. We know that the penalty is expensive to implement and, if one is serious about preventing mistakes, cruelly slow.

For these reasons, among others, the international community has largely rejected capital punishment. Of the 193 United Nations members, 137 have abolished the death penalty either by law or practice. In 2013, only 22 countries conducted an execution. Only eight conducted 10 or more: China, Iran, Iraq, Saudi Arabia, Somalia, Sudan, Yemen, and the United States. It’s simply impossible to imagine the United States remaining on this list for much longer.

The question is how much longer.

Those who hope that the end will come sooner rather than later have reached a momentous crossroads. One path requires a plodding march to eradicate the death penalty state by state. This route isn’t entirely hopeless. Indeed, Maryland, Nebraska, and Connecticut have abolished the death penalty since 2013, and four other states have governor-imposed moratoriums. But most of the low-hanging fruit has been picked, and the remaining states will be increasingly intransigent. It’s easy to imagine Texas, which has executed 530 people since 1976, holding out for a very long time.

The potentially faster track is to seize upon Justice Stephen Breyer’s dissent last term in Glossip v. Gross—in which he comprehensively challenged the constitutionality of capital punishment—and push a case to the Supreme Court. This path is not without its own perils, which need to be understood in historical context. In 1963, Justice Arthur Goldberg issued his own maverick dissent against the death penalty. Perceiving an opportunity, the NAACP Legal Defense Fund began a systematic litigation campaign, culminating in a 1972 decision, Furman v. Georgia, ruling that the death penalty as it was then practiced was unconstitutional. The victory was short-lived. Following a massive backlash, the Supreme Court reversed direction four years later and upheld revised capital punishment laws that included modest procedural protections.

Many observers believe that the net of the Legal Defense Fund’s well-intentioned efforts was negative and that the 1976 decision, Gregg v. Georgia, set back the death penalty abolition movement by decades. In the last Gallup poll before Furman, 50 percent of respondents said they favored capital punishment. After Gregg, support soared to 66 percent and reached an all-time high of 80 percent in 1994. The numbers have been dropping since then—down to 61 percent in the latest poll. The risk is that if abolitionists do press a case to the Supreme Court and lose, public opinion might surge again, believing that the court has somehow fixed the problems with the death penalty.

Following Breyer’s dissent, the need to confront this dilemma has taken on an increased sense of urgency. In the New York Times, Adam Liptak made public the split in the death penalty community over whether a case should be pressed to the Supreme Court. As I reported last year here in Slate, it’s a complicated gamble with reasonable arguments on both sides. But those who urge caution today are drawing the wrong lesson from history.

Breyer’s dissent means more than Goldberg’s did. When Goldberg and his law clerk Alan Dershowitz penned the opinion, only one legal scholar had ever advanced the argument that the death penalty constituted cruel and unusual punishment. Certainly no Supreme Court justice believed it to be unconstitutional. Quite consciously, Goldberg was beginning a conversation.

Breyer’s dissent, by contrast, is situated in a judicial-political conflict that has been running for nearly four decades. The modern battle turns entirely on Justice Anthony Kennedy. On one side, it’s clear that Justices Samuel Alito, Antonin Scalia, and Clarence Thomas and Chief Justice John Roberts will never vote against the death penalty. On the other side are Breyer and Justice Ruth Bader Ginsburg, who joined Breyer in saying that the death penalty violates the Constitution. Though they didn’t sign on to Breyer’s dissent, Justices Elena Kagan and Sonia Sotomayor are safe bets to reject capital punishment if and when the issue is ever put before the court again. Everything comes down to Kennedy.

Over the past 13 years, Kennedy has joined a series of decisions limiting the use of the death penalty for juveniles, child rapists who did not kill, and people with mental retardation. In the juvenile and child rapist cases, Kennedy wrote the majority opinions and cast the decisive vote. In Hall v. Florida, another 5–4 case, he again wrote the majority decision holding that mental retardation couldn’t be determined by a hard-and-fast numeric rule, which Florida and other states had used to limit the impact of the Supreme Court’s ban. Executing an intellectually disabled individual, Kennedy wrote, with the colorful rhetoric that characterizes his most passionate opinions, “violates his or her inherent dignity as a human being” and serves “no legitimate penological purpose.”

Breyer isn’t beginning a conversation. He is saying that he believes Kennedy’s vote is available. A student of history, Breyer knows the impact that Goldberg’s dissent had on the bar. Breyer wouldn’t issue a dissent so clearly evocative of Goldberg’s unless he wanted to send a loud and clear message that he believes the time is right for abolitionist leaders to push an Eighth Amendment challenge to the Supreme Court.

Breyer could be wrong, of course. Any student of this history knows that it has been fraught with unpredictable twists and turns. But abolitionists have more reason for optimism than the Legal Defense Fund did in 1972, when no one believed they had a chance of winning Furman v. Georgia, and they also have less to lose. For one thing, there are few, if any, lesser battles to be contested before the Supreme Court. Almost all the exceptions to the death penalty one could imagine have already been carved out. For another, it’s hard to imagine an adverse decision galvanizing support for the death penalty, as it did in 1976.

The truth is that despite decades of public education campaigns by abolitionists and abundant evidence that the death penalty is unreliable and ineffective, the public opinion dial hasn’t moved very much. Since Gregg, support for the death penalty has never dipped below 60 percent in Gallup’s annual poll, and for each of the past seven years it has come in between 61 and 65 percent in favor.

More importantly, public opinion is firmly entrenched in the states that drive the “American” death penalty. Really, it makes no sense to speak of capital punishment as national policy. The death penalty is almost entirely a Southern phenomenon, driven by a handful of states—and really, as research by the Death Penalty Information Center shows, a handful of prosecutors in a handful of counties within those states. Since 1976, Texas has accounted for 37 percent of American executions. Texas plus two other states—Oklahoma and Virginia—are responsible for a majority of executions. In Texas, polling shows 73 percent support for the death penalty. In Oklahoma it’s 74 percent. If capital punishment is going to end in these outlier Southern states, the U.S. Supreme Court will need to act.

Today’s opportunity may not present itself again soon. Justices die. Presidential elections and Senate confirmations are unpredictable. It’s possible to imagine that a stronger majority against the death penalty will emerge on the court someday. It’s just as possible to imagine that another bare majority won’t again emerge this century. That’s why Breyer’s invitation needs to be taken so seriously.

The direction of history’s arrow is clear. Capital punishment will end. But to finish this fight once and for all, abolitionists at some point will need to seize the moment and force the Supreme Court to a decision. There may not soon again be another moment so promising as this one.