A Constitution for All Times

11. The Cost of Death

Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended. In 1972, by a vote of 5-4, the Supreme Court struck down all capital punishment statutes in the United States. While three justices were prepared to hold the death penalty unconstitutional under 11. The Cost of Death  a constitution for all times all circumstances, two others focused on the fact that existing statutes led to arbitrary decisions that followed no legal standards. As Justice Potter Stewart put it, capital punishment violated the cruel and unusual punishment clause of the Eighth Amendment because being sentenced to death was like “being struck by lightning.” Many states responded by enacting new capitalpunishmentstatutesthatpurportedtoformalize decision-making. In 1976 the Supreme Court upheld several of these efforts, pointing to key procedural safeguards, such as the creation of a separate penalty phase to determine whether the defendant deserves to die. In this penalty phase, defense counsel can present a broad range of mitigating evidence that may diminish the defendant’s culpability or incline a judge or jury to mercy. But too often the formal safeguards that reassured the Court have proved illusory in practice. Underfunded , untrained, or outright incompetent lawyers often fail to provide their clients even minimally pamela s. karlan  adequate representation. A 1990 study by the National Law Journal found that a quarter of the inmates then on Kentucky’s death row had been represented at their trials by lawyers who were later disbarred, suspended from practice, or convictedofcrimes.AcapitaldefendantinGeorgiawas assigned a lawyer who knew the name of only a single criminal law opinion decided by any court. And however unwilling the Supreme Court has been to ensure that capital defendants receive truly competent representation—its interpretation of the Sixth Amendment’s guarantee of effective assistance of counsel sets the bar so low that courts have upheld convictions in cases where the lawyer was actually asleep during part of the proceedings—it has been even less willing to police systemic unfairness in who is targeted for the most awesome punishment. In McClesky v. Kemp (1987) the Court rejected powerful statistical evidence showing that the death penalty in Georgia was infected by racial disparities: black defendants convicted of killing white victims were far  a constitution for all times more likely to be sentenced to death than any other group. Justice Lewis Powell’s opinion was unusually candid in explaining why the Court could not accept McClesky’s claim: “Taken to its logical conclusion,” Justice Powell wrote, McClesky’s position “throws into serious question the principles that underlie our entire criminal justice system.” Racial disparities marbled the criminal justice system, so they had to be ignored. Because the Court and Congress convinced themselves that death row inmates were dragging out the process of post-conviction appeals, they have dramatically restricted the ability of all defendants to seek habeas corpus, the primary vehicle for bringing constitutional challenges against state court convictions . The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) create a procedural obstacle course that prevents federal courts from addressing the merits of a defendant’s constitutional claims. For example, in its 2011 term, the Court confronted the case of Cory Maples, a death row pamela s. karlan  inmate in Alabama who had been unable to get the federal courts to hear his claim that his trial lawyer was ineffective at his sentencing. The reason? The volunteer lawyers who later represented him moved on to new jobs, and when the state court ruled against his claim, there was no one at their former law firm to receive the letter announcing the decision. The letter was stamped “Return to Sender,” and the deadline for appeal passed before anyone noticed. As a result, lower federal courts accepted the state’s argument that Maples had “defaulted” his claims. Justice Ginsburg’s opinion for the Court in Maples v. Thomas held that because Maples’s attorneys had completely abandoned him, he had shown an external “cause” for his failure to...