The Road to Abolition?: The Future of Capital Punishment in the United States

Introduction: Toward and Beyond the Abolition of Capital Punishment

1 Introduction Toward and Beyond the Abolition of Capital Punishment Charles J. Ogletree, Jr., and Austin Sarat Civil societies have historically tried to distinguish the crime of murder from other offenses. Typically, murder has been subject to the most severe punishment and most intense public outcry. Countries with vastly different forms of government and systems of punishment find common ground on the seriousness of the crime committed by a person who causes another human being’s death. The twentieth century, though, witnessed yet another kind of convergence around murder: nations of every political persuasion ended their use of death as a punishment for murder and other crimes.1 They declared the death penalty to be unconstitutional, unacceptably cruel, or a violation of human rights (or all of them). To take but one example, in a major decision by the new democratic court of the Republic of South Africa, the justices, citing various theories to support their conclusion to end capital punishment, abolished the penalty, despite growing concern about crime. Justice Arthur Chaskalson, writing for the court, stated: Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation and tolerance. . . . [T]he framers of our Constitution rejected not only the laws and practices that imposed domination and kept people apart, but those . . . that brutalized us as people and diminished our respect for life. Everyone, including the most abominable of human beings, has the right to life, and capital punishment is therefore unconstitutional.2 2 Charles J. Ogletree, Jr., and Austin Sarat The emergent global consensus marked the United States, with its seemingly intractable attachment to capital punishment, as an outlier. But what was unimaginable only a decade ago—namely, that the United States would join most of the rest of the world in abolishing capital punishment—seems within the horizon of possibility at the time of this writing. At the start of the twenty-first century, we are in the midst of a profound national reconsideration of the death penalty. One of the most powerful and important touchstones for today’s reconsideration of capital punishment is the U.S. Supreme Court’s 1972 decision in Furman v. Georgia.3 The Furman Court ruled that the way capital punishment was then applied violated the Eighth Amendment, and it imposed a moratorium on execution. At the time, Justices William Brennan and Thurgood Marshall wanted to go further and hold the death penalty to be cruel and unusual. Thus Marshall wrote: In striking down capital punishment, this Court does not malign our system of government. On the contrary it pays homage to it. . . . In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.4 Similarly, Brennan argued: The calculated killing of a human being by the State involves, by its very nature , a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose “the right to have rights.” A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a “person” for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, yet the finality of death precludes relief. An executed person has indeed “lost the right to have rights.”5 Introduction 3 He concluded: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment . The function of these principles is to...