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  • State Constitutionalism and the Death Penalty
  • Alan Rogers (bio)

Concerned that the United States Supreme Court's abolition of the death penalty in Furman v. Georgia (1972) would not be sustained, abolitionists turned to state supreme courts. Through their efforts, two states succeeded in realizing that goal: California, briefly, and Massachusetts, where the death penalty remains unconstitutional.1

For more than two centuries before Furman, the battles against capital punishment had raged in state legislatures. Seven states abolished the death penalty in the nineteenth and early twentieth centuries, and in those states that retained the death penalty the average yearly execution rate spontaneously and steadily declined after peaking at 165 in the 1930s. The average number of executions per year was less than half that total two decades later. Death penalty opponents pushed through abolition bills in Alaska, Hawaii, and Delaware in the late 1950s, and during the 1960s Oregon and Iowa abolished capital punishment and four other states greatly restricted use of the death penalty. In 1968, for the first time in American history, no one was legally executed. Cheered by these results, abolitionists abandoned the state-by-state legislative approach in favor of a legal assault on the constitutionality of the death penalty. The initial success of this strategy astonished even its advocates.2

All nine justices filed separate opinions in the 5–4 Furman decision. Conservative state legislators took their lead from Furman's dissenters and geared up within weeks to restore the death penalty. At the same time, liberal jurists in California and Massachusetts turned to state constitutional provisions prohibiting cruel or unusual punishment, and American Civil Liberties Union (ACLU) and NAACP Legal Defense and Educational Fund (LDF) lawyers made that argument in more than a [End Page 143] dozen other states. Abolitionists hoped that a handful of victories would stimulate a state constitutional movement against the death penalty or prevent the Court from reversing Furman and finding the death penalty constitutional.3

This essay will focus on the death penalty and state constitutionalism—the expansion of state rights beyond federal standards—in California and Massachusetts, two of the nation's leading state courts. California State Supreme Court Justice Stanley Mosk was among the first to tout state constitutionalism. He argued that it would allow liberals to experiment with reform and conservatives to strengthen states' rights. Conservatives brushed aside Mosk's olive branch. They assailed the California and Massachusetts courts' abolitionist rulings, arguing that the decisions were simply a new brand of judicial activism that ran contrary to the will of the people and to the Supreme Court's authority. Liberal state jurists countered by arguing that "the application of constitutional principles is not immutable and criminal penalties thought appropriate in 1780 are no longer acceptable in our society." In short, the primary focus of state constitutionalism was the substantive decision to abolish the death penalty and only secondarily about the diffusion of authority.4

Abolitionists used state constitutionalism to attack the death penalty in California and Massachusetts and I argue that it was the existence of what historian Richard Hofstadter, writing generally about the long course of American history, called "moral consensus" or "comity" that caused the courts' decisions to be supported or denounced. According to Hofstadter, comity depends on contending partisans manifesting a basic regard for one another. A commitment to that value tempers partisan strife with civility and reminds competitors that a community's life must go on after a contentious issue is resolved. Comity sustained the Massachusetts Supreme Judicial Court's decision to abolish the death penalty and the absence of political civility doomed the California court's effort to end capital punishment.5

In order to attack the Supreme Court's death penalty decisions, liberal state court jurists did an about-face. The Warren Court had nationalized the guarantees of the Bill of Rights over the objections of many conservative state courts. By the time Chief Justice Earl Warren retired, however, state courts had become more liberal and more protective of individual rights than the conservative Burger and Rehnquist Courts. Therefore, in the 1970s and 1980s, a growing number of state courts chose not to follow the Court's rulings, especially...


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