The Supreme Court’s Death Trap by Linda Greenhouse
You wouldn’t know it from the death penalty proceeding about to take place in the Boston Marathon case, or from Utah’s reauthorization of the firing squad, or the spate of botched lethal injections, but capital punishment in the United States is becoming vestigial.
The number of death sentences imposed last year, 72, was the lowest in 40 years. The number of executions, 35, was the lowest since 1994, less than half the modern peak of 98, reached in 1999. Seven states, the fewest in 25 years, carried out executions.
California has the country’s biggest death row, with more than 700 inmates. Many more of them die of natural causes — two since mid-March — than by execution. Last July, a federal district judge, Cormac J. Carney, concluding that California’s death penalty had become “dysfunctional,” “random” and devoid of “penological purpose,” declared it unconstitutional; the state is appealing.
But if there’s one place that seems to stand apart from the tide of disenchantment with capital punishment, it’s the Supreme Court. That’s not to say that the court hasn’t issued decisions that have limited the application of the death penalty: Atkins v. Virginia in 2002 ruled out executing defendants with intellectual disability; Roper v. Simmons in 2005 prohibited executing those who murdered before the age of 18; and Kennedy v. Louisiana in 2008 held that states could not make the rape of a child a death-eligible offense.
Those were all closely fought cases, the last two decided by votes of 5 to 4. And in other, less visible cases, the court appears to be floundering, ever more tightly enmeshed in what Justice Harry A. Blackmun called the machinery of death. Recent episodes have been both mystifying to the public and embarrassing to the court.
Adam Liptak, the Supreme Court correspondent for The Times, has highlighted the disturbing way the court handled a challenge to Missouri’s lethal-injection protocol back in January: first, over four dissenting votes, permitting the state to execute Charles F. Warner, one of four inmates who had filed appeals, only to agree a week later to hear the appeals of three identically situated inmates. The court then granted stays of execution to the three and will hear their case, Glossip v. Gross, on April 29.
That bungled judicial performance reflected the fact that while it takes only four justices to agree to hear a case, granting a stay of execution (or a stay of any lower court’s decision) takes five. The distance between four and five can be a lethal chasm.
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