Court Takes Another Step in Reshaping Capital Punishment
By ADAM LIPTAK
Published: March 2, 2005
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After a decade of relative quiet, the Supreme Court has in the last several
years fundamentally reshaped the nation's capital justice system.
It has narrowed the class of people eligible for execution, excluding
juvenile offenders yesterday as it had previously the mentally retarded. It
has rebuked lower courts for sending people to their deaths without adequate
safeguards. And it has paid increasing attention to the international
opposition to capital punishment.
"Early in the 1990's, we reached the high point in deregulating death," said
Franklin E. Zimring, a law professor at the University of California,
Berkeley, alluding to decisions in which the court refused to hear
defendants' claims of innocence because they were raised too late. "Then
there was very little from the Supreme Court through the 1990's. Now, in a
whole series of substantive and procedural decisions, you have a
re-regulation taking place."
Opinions vary about where the process will end.
"The trend seems to be pushing toward the abolition of capital punishment,"
said Rory K. Little, a former Justice Department official who is now a
professor at Hastings College of Law in San Francisco. "But it would be a
mistake to predict that these decisions are leading inexorably to abolition.
It could be that they cut out all the edges and leave the core that everyone
is comfortable with."
Since the Supreme Court's decision banning the execution of the mentally
retarded three years ago, lower courts have struggled with how to determine
whether specific defendants should be removed from death row on that ground.
There will be no such problem when it comes to juveniles.
All 72 men on death row for murders they committed when they were 16 or 17
will be spared their lives under the latest decision and will instead
receive the harshest punishment available, typically life without the
possibility of parole.
"These people will all spend the rest of their lives in prison," said Victor
L. Streib, a law professor at Ohio Northern University whose studies of the
juvenile death penalty were cited in yesterday's decision. "Nobody's getting
Similarly, people who had faced capital prosecutions for crimes they
committed as juveniles can now be sentenced, at worst, only to life terms.
That group includes Lee Malvo, the teenage sniper serving a life term in
Virginia. Prosecutors in Alabama and Louisiana had wanted to try Mr. Malvo
on capital charges for killings there.
Supporters of the death penalty said they were braced for further,
incremental attacks on the use of capital punishment - whether it should be
applied to the mentally ill, older teenagers and defendants claiming racial
"The next battle is the mentally ill," said Prof. Robert Blecker of the New
York Law School. Given the decisions on the mentally retarded and on
juveniles, Professor Blecker said, "it has a certain appeal."
Professor Blecker said he also expected opponents of the death penalty to
try to move up the age separating juveniles from adults. In 1988, the
Supreme Court set the line at age 16. Yesterday, it rose to 18.
"The interim attack may be to go after the so-called teenage death penalty,
so they'll go after 19-year-olds," he said. "Then they will redefine
juveniles to say it should extend to those under 21."
Richard C. Dieter, the executive director of the Death Penalty Information
Center, a research group opposed to the death penalty, said he expected the
role of race in capital punishment to re-emerge.
"Among the issues the Supreme Court decided around the same time as the
juvenile death penalty was race and the death penalty," Mr. Dieter said,
alluding to a 1987 decision holding that the disparities between whites and
nonwhites at the time did not offend the Constitution. "They may be ready to
take another look."
Professor Zimring said he also expected more attention on procedural
"The areas to watch for large developments in are the adequacy of
representation of counsel and harmless error," he said. Opponents of the
death penalty are often critical of the quality of appointed counsel for
capital defendants and the willingness of courts to overlook some
prosecutorial misconduct by calling it harmless.
The extended discussion of international opposition to the juvenile death
penalty in Justice Anthony M. Kennedy's majority opinion may also have
broader implications, legal experts said.
"All over the world, we have been condemned for this," Professor Streib
said. "We've now joined the rest of the world. Maybe the only country that
still does this now is Iran."
David I. Bruck, a capital defense lawyer and the director of the Virginia
Capital Case Clearinghouse at Washington and Lee University School of Law,
said many Americans did not realize the strength of international sentiment
on this issue.
"Had the decision gone the other way," Mr. Bruck said, "it would have been
another Abu Ghraib. The outcry around the world would have been simply
Even beyond the debate over the juvenile death penalty, Professor Zimring
said, the embarrassment of being out of step with the rest of the world on
capital punishment generally may have played a significant role in the
"The United States and Japan are in their own small suburb of the developed
world," he said, referring to the two major industrialized nations that make
routine use of the death penalty. "In the last 10 years, the rest of the
world's opposition to the death penalty has become tremendously important to
the rest of the world. Capital punishment in Europe has become a hotter
topic in Europe in 2005 than it was in 1965, when they were busy abolishing
Professor Blecker said that analysis was based on faulty premises.
"The problem is that when you look at the opposition of other nations," he
said, "they're looking at governments and not people. Every European
government which abolished the death penalty did it in the face of
overwhelming political support."
In each of the last two years, juries imposed only two death sentences on
Yesterday's decision is consistent with those trends, said Joshua K.
Marquis, a co-chairman of the capital litigation committee of the National
District Attorneys Association.
"It's not a harbinger of the end of the death penalty," Mr. Marquis said,
"but simply an indication that the Supreme Court is becoming more
discriminating, as are prosecutors and juries."