The Supreme Court and the Death Penalty: a Glimpse

Sept. 22, 2011 -- When the Supreme Court rejected Troy Davis' request for a delay in his execution Wednesday night, there were no noted dissents attached to the one-sentence order. But that does not mean there were no justices opposed to the execution. The vote count might forever remain unknown.

No member of the court currently believes that the death penalty is unconstitutional in every application.

The court ruled in 1972 that the death penalty system was unconstitutional because it was being applied in an arbitrary manner. The decision lead to a temporary moratorium, until the court restored the penalty in 1976.

The court has limited its scope in recent years, ruling that it is unconstitutional for the "'mentally retarded" and juvenile offenders younger than 18 who commit capital crimes.

The court has stayed six executions this year, mostly related to claims of ineffective counsel, an issue the court will take up in a separate case this fall.

The court delayed the execution of one man last week: Duane Buck, who claimed race was taken into consideration during the sentencing phase of his trial.

Psychologist Walter Quijano testified that Buck was African-American and his race increases "future dangerousness."

Justice Ruth Bader Ginsburg gave a wide-ranging talk in San Francisco the night the court issued the temporary stay. Asked generally about the death penalty, she said it is a "dreadful part of the business."

Ginsburg talked about how former Justice Thurgood Marshall and former Justice William Brennan had taken the position that the death penalty was always unconstitutional, but that she chose not to follow their lead because if she did, "I would have no voice in what is going on. I would not be able to make things perhaps a little bit better."

At the end of his career on the bench, former Justice John Paul Stevens' view of the death penalty had evolved. Although he voted to reinstate it in 1976, by 2008, he wrote that the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."

For the first time, in a concurrence in a case dealing with lethal injection, Stevens opined that the death penalty was unconstitutional.

Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote separately to address Stevens' concern.

"The conclusion is insupportable as an interpretation of the Constitution," Scalia wrote, "which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes."

Scalia argued that the text of the Constitution recognizes the death penalty as a "permissible legislative choice."

"The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for a 'capital, or otherwise infamous crime,'" Scalia wrote, "and prohibits deprivation of 'life' without due process of law."

Scalia criticized Stevens for "barely" acknowledging a "significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one."

And, as a final blow, he wrote, "I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution."

After he retired, however, Stevens expanded upon his views in a 2010 piece in the New York Review of Books. He wrote about the family and close friends of the victims who "often suffer enormous grief and tangible loss." But he reiterated that the punishment of the defendant "cannot reverse or adequately compensate any survivor's loss."

An execution, he said, "may provide revenge and therapeutic benefits," but "it cannot alone justify death sentences."

He said that many of the thousands of condemned inmates on death row have repented and made positive contributions to society but that the "finality of an execution always ends that possibility."

"More importantly," he added, " that finality also includes the risk that the state may put an actually innocent person to death."