The Supreme Court Will Never Kill the Death Penalty, Even With Botched Executions

Capital punishment is constitutional, but the way it's performed may never be. Only the public can shut down the machinery of death—if it sees it killing.

05.01.14 9:45 AM ET

Oklahoma’s botched execution of Clayton Lockett on Tuesday night showed the public how a death row inmate dies. In doing so, the state also showed how the death penalty itself will die.

But first, how it won’t die: The Supreme Court will not declare the concept of capital punishment to violate the Eighth Amendment’s ban on cruel and unusual punishment. The men who drafted and ratified the Bill of Rights had no issue with the ultimate penalty for the ultimate crimes.

That, however, doesn’t excuse the death penalty from being a bloodthirsty anachronism kept alive by the legal anachronism that capital punishment in practice can ever be carried out with the precision the Constitution requires.

Like too many of this country’s hot-button issues, the perpetuation of our death penalty debate can be attributed to the 1970s Supreme Court. In 1972’s Furman v. Georgia, a divided court placed a de facto moratorium on executions. Justice Potter Stewart, voting in the majority, found executions were “so wantonly and so freakishly imposed” as to be “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

While Stewart was opposed to the death penalty as a matter of policy, he refused to join his more liberal colleagues Justices William Brennan and Thurgood Marshall (PDF) in declaring it unconstitutional in all respects. Instead, starting with a case several years earlier, Stewart “had attempted to engineer the end of capital punishment through a procedural decision,” according to Professor Evan Mandery’s definitive account of the era, A Wild Justice: The Death and Resurrection of Capital Punishment in America.

But then came the backlash. When the Court handed down the Furman decision, Gallup polls showed 49 percent of Americans supported the death penalty. Four years later, that number had jumped to 66 percent. States, hearing the people, went back to the drawing board to create statutory schemes designed to eliminate the arbitrariness Stewart found unacceptable.

In 1976, the Supreme Court, including Stewart, endorsed Georgia’s revised execution laws. By a 7-2 vote, the justices in Gregg v. Georgia lifted the moratorium. And for nearly two decades after, public support for the death penalty continued to rise. Then a funny thing happened: since support peaked in the early 1990s, three justices from the Gregg majority abandoned their positions. If the same nine men from Gregg were to hear the case today, the vote would be at least 5-4 to do away with the death penalty for good.

First came Justice Harry Blackmun. In 1994, during his final year on the Court, he wrote, “[f]rom this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.”

That same year, the public learned that Justice Lewis Powell regretted rejecting in 1987 a statistical study (PDF) that definitively established the death penalty’s systemic racial bias in Georgia. But he didn’t leave it there. Speaking to his biographer John C. Jeffries, Powell said he “would vote the other way in any capital case,” including Furman—an admission that spanned nearly his entire time on the Court.

And then came Justice John Paul Stevens. A newcomer to the Court in 1976, he joined Powell and Stewart to engineer Gregg’s resurrection of the death penalty. But in 2008’s Baze v. Rees, he, too, determined the experiment had failed. Quoting a former colleague, Stevens wrote, “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’” In his recently released book, Six Amendments, Stevens takes his position a step further: the Eighth Amendment, he writes, should be revised to read, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Unfortunately, none of the justices from 1976 sit on the Court in 2014. And while the Roberts Court as currently composed may ultimately decide that administering secretly compounded lethal injection drugs as Oklahoma did is unconstitutional, such tinkering with the machinery of death is all we can expect from a majority of the current justices.

But that doesn’t mean the rest of us are incapable of traveling the same road Blackmun, Powell, and Stevens have walked. Dissenting in Gregg, Justice Marshall asserted that “the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and…if they were better informed, they would consider it shocking, unjust, and unacceptable.”

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As of October 2013, 60 percent of Americans favored the death penalty. That’s a downward trend from 80 percent in 1994 and the lowest since Marshall first articulated his hypothesis in Furman in 1972. But more information, more studies, more columns like this won’t fulfill the civil rights icon’s rather condescending hope for his fellow Americans. Rather, it will be stories like the one out of Oklahoma. It will be the shocking play-by-play from inside the death chambers. It will be our bearing witness to our sanitized machinery of death not only when it goes wrong, but also when it goes eerily, bloodlessly right.

Even then, there’s no guarantee that Marshall’s hypothesis can overcome our basic human desire for retribution for victims and society. It was that basic desire that the justices in Gregg relied upon to resurrect the death penalty. It’s that same basic desire that animates our sense of just deserts that Clayton Lockett, who shot 19-year-old Stephanie Neiman and watched as two others buried her alive, endured extra suffering before his fatal heart attack Tuesday night. That same basic desire will survive Oklahoma’s eventual execution of Charles Warner—the man who was supposed to die immediately after Lockett—a convicted rapist and murderer of an 11-month-old baby.

But if anything can overcome our viscerally retributive desire, it is our visceral repulsion to watching human life be extinguished. For all the clamoring to bring cameras into the Supreme Court, there should be equal clamoring to open up executions for all to see. If we can’t bring ourselves to force states to let us bear witness to what’s done in our names, then journalists and activists and lawyers should force us all to do so. Such recordings have been done before as early as 1928 and as recently as this year in the Supreme Court.

The death penalty will survive one botched execution. But as Blackmun, Powell, and Stevens’ drift over decades of exposure show, it may not survive a sustained effort to sear its effects into our psyches.