column by Todd Chatman, Editor-at-Large
The history of Supreme Court jurisprudence regulating the death penalty in the United States is fraught with controversy. Death penalty opponents have argued that the punishment is "cruel and unusual" in violation of the Eighth Amendment, and that its application too often deprives defendants of their Fourteenth Amendment rights to due process. But in a short line of individual opinions, Justice Clarence Thomas has been very clear that, in his America, the death penalty for certain crimes would never be cruel and unusual, and that the Court would grant much greater deference to states in determining the narrow range of mitigating evidence they allow juries to hear before they consider sentencing defendants to death. In other words, in Justice Thomas' America, states would find the path to the death penalty more open and generally less complex.
While some regions of the U.S. have employed the death penalty since before the nation's founding, abolitionist movements have an equally long history. In the face of continuous challenges from opponents-in courts, legislatures, and the court of public opinion-executions in the U.S. reached a peak of 199 in 1935, before declining to zero in the late 1960s. According to the Death Penalty Information Center (DPIC), public support for the death penalty reached an all-time low of 42% in 1966. The Court began moving toward a recognition of this lack of support in a line of decisions beginning in 1968 with U.S. v. Jackson, followed by McGautha v. California in 1971, and finally by the landmark case of Furman v. Georgia in 1972. In each case, the court considered whether a state's death penalty law gave too much discretion to the prosecutor, judge, or jury, in deciding whether the defendant would live or die.
In Furman, the Court effectively invalidated all of the nation's death penalty laws when it held that the punishment was "cruel and unusual" where it was applied in a discriminatory manner. Because every state death penalty law at the time allowed jurors virtually unfettered discretion in making the life or death decision, all were invalid. In his concurrence to the per curiam decision in Furman, Justice Douglas outlined the Court's concerns. "It would seem to be incontestable that the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." According to DPIC, Furman "set the standard that a punishment would be 'cruel and unusual' if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty."
Furman gave an official imprimatur to the de facto "death penalty moratorium" that had begun in 1967; not a single American was executed in the decade between 1967 and 1977. But the fact that all nine justices wrote a separate opinion in Furman made clear that the Court was still very divided on what, if any, type of death penalty statute would pass constitutional review. After Furman, state legislatures redrew their death penalty statutes in hopes of finding a formula the court would approve. One approach was to remove all discretion in capital sentencing by making the death penalty mandatory for those convicted of capital crimes. However, in 1976, in Woodson v. North Carolina, the Supreme Court held that mandatory death sentences deprived defendants of due process because they failed "to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death."
That same year, in Gregg v. Georgia, the Court explicitly held that the death penalty was constitutional under the Eighth Amendment. However, the Court also interpreted Furman's limits on the death penalty, noting that Furman required that "in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Guided by this reading of Furman, the Court approved death penalty statutes in Florida, Texas, and Georgia that gave juries "guided discretion" in imposing death. Among other safeguards, those statutes divided capital trials into two phases-the guilt or innocence phase, and the sentencing phase-and required that in the sentencing phase the judge must consider, or include in his instructions to the jury, "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any . . . statutory aggravating circumstances which may be supported by the evidence."
Since Gregg, the Court has decided many more cases that have refined its requirements for a constitutional death penalty, two of which Justice Thomas has named as pivotal to his understanding of "the 'mitigating' line of cases" in the Court's death penalty jurisprudence.
First, in Lockett v. Ohio, the Court said Ohio's death penalty law violated the Eighth and Fourteenth Amendments because it too narrowly limited the range of possible mitigating factors a jury could consider when making the decision of life or death. The Court concluded "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."
Second, in Eddings v. Oklahoma, the Court vacated the death sentence of the 16 year-old petitioner because it found the sentence was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases," as the Court had established in Lockett.
Based on these cases, Thomas has repeatedly argued that the Court should overrule Penry v. Lynaugh, yet another of its "mitigating" decisions. According to the majority in Graham v. Collins, the Court in Penry "overturned a prisoner's death sentence, finding that the Texas special issues provided no genuine opportunity for the jury to give mitigating effect to evidence of his mental retardation and abused childhood." The "Texas special issues" in question there allowed the sentencing jury to consider as possible mitigating factors only that evidence that related to, (1) the deliberateness of the crime, (2) the future dangerousness of the defendant, and (3) whether the crime had been provoked.
Dissenting in Tennard v. Dretke (2004) and concurring in Johnson v. Texas (1993) and Graham, Thomas argued that the Court should overrule Penry because, according to his reading, Penry would allow sentencing juries to consider any potential mitigating factors, rather than a limited number of factors as determined by the state. According to Thomas, this would effectively give juries the same unfettered discretion in death penalty sentencing that the court attempted to limit in nearly every death penalty case since Furman.
Although he concurred with the majority in Graham, Thomas wrote separately to argue that in the line of cases leading from Furman , the Court had declared that the death penalty was unconstitutional where it was applied selectively and, as Douglas wrote, where state laws allowed juries to sentence defendants to death based on their prejudices against the defendant's "race, religion, wealth, social position, or class." Yet, Thomas wrote, "Penry reintroduces the very risks that we had sought to eliminate through the simple directive that States in all events provide rational standards for capital sentencing. For 20 years, we have acknowledged the relationship between undirected jury discretion and the danger of discriminatory sentencing-a danger we have held to be inconsistent with the Eighth Amendment." Because Penry "does so much violence to so many of this Court's settled precedents in an area of constitutional law, it cannot command the force of stare decisis" and should be overruled. The majority in Penry summed up the dilemma that had Thomas so exercised in Graham: "In the years since Furman v. Georgia, the Court has identified, and struggled to harmonize, two competing commandments of the Eighth Amendment. On one hand, as Furman itself emphasized, States must limit and channel the discretion of judges and juries to ensure that death sentences are not meted out 'wantonly' or 'freakishly.' On the other, as we have emphasized in subsequent cases, States must confer on the sentencer sufficient discretion to take account of the 'character and record of the individual offender and the circumstances of the particular offense' to ensure that 'death is the appropriate punishment in a specific case.'"
The solution, according to Thomas, is that the Court "should enforce a permanent truce between Eddings and Furman." Quoting Scalia, who wrote separately in Penry (concurring in part and dissenting in part) Thomas argued in Graham that, "[i]n providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, . . . Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence."
In other words, according to Thomas, while sentencing juries should be allowed to consider mitigating circumstances, states should be free to limit those factors, and "the Court's appropriate role is to review only for reasonableness a State's determinations as to which specific [mitigating] circumstances-within the broad bounds of the general categories mandated under Eddings-are relevant to capital sentencing."
On its face, Thomas' argument seems reasonable. Few would argue that the Court should return to the pre-Furman days where, a jury could exercise "unbridled discretion" in imposing the death penalty, a situation that Thomas notes in Graham "practically invited sentencers to vent their personal prejudices in deciding the fate of the accused." Yet, the effect of his argument would be to transfer that discretion from a potentially impartial jury, to inherently interested state legislatures, granting those who write the death penalty laws greater latitude to limit the ways defendants might avoid the "ultimate punishment." What's more, hidden within Thomas' opinion in Graham are the seeds of a more radical solution to the potential problems sentencer-discretion in death penalty cases: Eliminating that discretion altogether through mandatory death penalty laws. Calling the Court's decision in Woodson to invalidate all mandatory death penalty laws "curious and counterintuitive," Thomas suggests that "by eliminating explicit jury discretion and treating all defendants equally, a mandatory death penalty scheme was a perfectly reasonable legislative response to the concerns expressed in Furman." Noting that he has "no occasion here to flesh out [his] disagreement with the Court's prohibition of such schemes," Thomas does not say whether he would have allowed the abused, mentally retarded 16 year-old Penry to be put to death under a mandatory death penalty law. Presumably, that would have been just fine with him.
But Thomas' desire to give states greater discretion in deciding mitigating factors and his support of the mandatory death penalty are not the only ways in which his views of the death penalty differ from those of a majority of his peers. For example, Thomas joined Scalia's dissent in Atkins v. Virginia, where the majority ruled that execution of the mentally retarded is cruel and unusual, and therefore, unconstitutional. Scalia argued that this holding was absurd. "I am not sure that a murderer is somehow less blameworthy if (though he knew his act was wrong) he did not fully appreciate that he could die for it; but if so, we should treat a mentally retarded murderer the way we treat an offender who may be 'less likely' to respond to the death penalty because he was abused as a child. We do not hold him immune from capital punishment, but require his background to be considered by the sentencer as a mitigating factor" (citations omitted).
According to Earl Ofari Hutchinson such opinions are typical of Thomas. "From the time he hit the bench over a decade ago, Thomas has taken a see-no-evil stance on cases involving the beating and torturing of prisoners, corralling prisoners to hitching posts, and executing the mentally retarded," Hutchinson says.
Thomas justifies this trio of arguments to overturn Penry as an effort to clarify death penalty jurisprudence, a way to give states, prosecutors, judges, and juries brighter lines to follow in deciding whether to impose the "ultimate punishment." But while the desire for greater certainty is understandable, it would come at the cost of many more executions.