Eagleionline

A lukewarm invitation

“The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.” - Justice Stevens, concurring in Baze v. Rees

Justice Stevens’s invitation to review the death penalty is an interesting aside in yesterday’s lethal injection decision.  For the first time, he suggests that he is ready to reject the practice.  Notably, Justice Stevens does not frame his invitation in the context of the case at bar—the Eighth Amendment—but rather seems to base his objection on the fact that death penalty litigation is too costly.  Given that the issue at the heart of the death penalty is whether it is acceptable for the State to execute an individual, Justice Stevens’s approach is striking.  Is it conceivable that the death penalty could be abolished not for its moral stain but for its financial and judicial burdens? Would that be sufficient consolation for opponents of the practice who find it abhorrent that the United States remains as one of just a few countries with the penalty?

Justice Stevens takes a route to abolition that is familiar to me from personal conversations.  Invariably, discussion of execution will include references to the staggering cost of housing a death row inmate, of the staff required to perform executions, and the cost to the legal system.  The logical counterargument is that it would probably be cheaper to execute death row inmates sooner so that the State doesn’t have to foot the bill for food, shelter, and, often, lawyers.  Whenever the conversation reaches this point I am struck by how these concerns are decidedly secondary to the pressing moral question.  However it may help one’s argument to align the interests of the Treasury with the interests of your cause, the task remains to persuade on the fundamental issue about the permissibility of execution.

What would the reaction be on the morning after the United States abolishes the death penalty because it costs too much to litigate? On the one hand, in no way could the country claim to have discarded execution because it conflicts with the Constitution.  The Eighth Amendment would still stand as permissive of execution by various means.  Furthermore, the question would remain as to whether proponents of the death penalty could revive the practice by legislating a more efficient litigation path for death penalty cases.

In short, the answer to the moral and constitutional question of whether it is permissible for the State to execute would still be yes. Because of this, such a ruling’s effect on death row inmates who had already exhausted their appeals, and thereby could no longer tax the judicial system, might still find themselves preparing for execution.

Though his fuller statement on the subject indicates that society’s evolving norms of punishment are at the heart of his analysis, Justice Stevens is clearly impressed by the non-moral costs, which, I believe, misses the point:

[O]ur society has moved away from public and painful retribution towards ever more humane forms of punishment.  State-sanctioned killing is therefore becoming more and more anachronistic.  In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic.  But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim.  This trend, while appropriate and required by the Eighth Amendment’s prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based.

Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?”  See Salinas, 34 Am. J. Crim. L. 39 (2006).  The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

Though I understand the rhetorical importance of emphasizing the financial costs of the death penalty, a weaker invitation to abolish it is hard to conceive.

For an interesting highlight of today’s discussion of the deterrent effects of the death penalty, check this out. I think Scalia’s point about what the Court should be considering (empirical studies of the deterrent effect) is probably applicable to whether the Court should count dollars and cents when engaged in an Eighth Amendment analysis.