JURIST Guest Columnist Meghan J. Ryan of Dedman School of Law, Associate Professor of Law, discusses the evolution and future of the death penalty…

Capital punishment in this country has a long and storied history. In the early years, the colonies regularly executed criminal offenders for a variety of crimes, including arson, piracy, and sodomy. These executions were often public in nature. As our country continued to grow and progress, executions continued but became much rarer in practice. The rarity with which executions were imposed perhaps ironically created a constitutional problem. Because being sentenced to death was like being “struck by lightning,” imposition of capital punishment was arbitrary and capricious, which amounted to it being unconstitutional. As a result of this and other concerns, in 1972, the US Supreme Court struck down the death penalty as it was being applied in the states. Despite this difficulty, many states clung to the extreme punishment, and, just four years later, the Court upheld Georgia’s new and revised capital punishment statute, which set the standard for the additional thirty-seven states that reinvested in the death penalty.

Since 1976, the number of states embracing capital punishment has generally hovered around thirty-eight. In recent years, though, several states have explicitly or effectively walked away from the punishment. Since 2004, seven states have abolished the death penalty either through statute or case law: New York (2004), New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2013), Maryland (2013), and Nebraska (2015). This amounts to a change from 76% to 62% of states supporting capital punishment. This shift is significant for a couple of reasons.

First, it suggests that much of the public is changing its views on the issue of capital punishment. This is probably a reaction to the realization that well over 1,500 Americans have been wrongfully convicted in this country. It is also likely a result of greater understanding that imposing capital punishment on an individual is vastly more expensive than feeding, housing, and medicating an inmate for the rest of his life. For example, a recent study [PDF] put the costs associated with an aggravated first-degree murder case in which the death penalty was sought at north of $3 million in the state of Washington, whereas the costs associated with an aggravated first-degree murder case in which the death penalty was not sought was around $2 million in the state.

The second and related reason that the shift in support for capital punishment is significant is that it raises questions about the constitutionality of the punishment. As early as 1958, the U.S. Supreme Court stated that the Eighth Amendment‘s prohibition on “cruel and unusual punishments” “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Actually, this statement in support of the Court’s decision did not have precedential effect, but the Court has repeatedly adopted it as binding law in its subsequent opinions.) This approach to the Eighth Amendment indicates that our interpretation of it may change with time as society evolves. This is despite the fact that U.S. Supreme Court Justices, as well as legal practitioners and scholars, still debate more broadly whether we should take an originalist or living constitutionalist approach to interpreting the Bill of Rights. But this evolving understanding of the Eighth Amendment means that a practice that was once considered constitutional may later become unconstitutional even if the Court does not overrule its prior opinion on the matter. In Atkins v. Virginia, for example, the Court determined that it is unconstitutional to execute intellectually disabled persons even though the Court had—just thirteen years earlier—concluded that this practice was not unconstitutional. Similarly, in Roper v. Simmons, the Court determined that it is unconstitutional to execute juvenile offenders even though the Court had previously concluded that this practice was not unconstitutional. Importantly, the Court reached these contrary conclusions in the later cases of Atkins and Roper without overruling the prior decisions. Instead, the Court concluded that the facts had changed over time—and society’s values had changed—forcing a new, updated meaning of the Eighth Amendment. With this living, evolving understanding of the Eighth Amendment, there is room for even the death penalty to become unconstitutional over time.

In determining whether a punishment practice has become unconstitutional as society has evolved, the Court has looked primarily at whether various jurisdictions have adopted or rejected the practice. This, the Court has explained, is the “clearest and most reliable objective evidence of contemporary values.” The Court has also occasionally examined whether the punishment is actually imposed in practice and whether professional groups or the international community oppose the practice. In Atkins, it took sixteen states withdrawing support from the practice of executing intellectually disabled individuals for the practice to move from constitutional to unconstitutional within a period of thirteen years. These sixteen states were added to the three jurisdictions already prohibiting the practice, as well as to the fourteen states rejecting capital punishment altogether. The Atkins Court also stressed that it is not so much the number of states withdrawing their support for the practice that matters, but it is “the consistency of the direction of change” that is important. In comparison, while just seven states have withdrawn support for capital punishment altogether, the consistency of the direction of change within a short period of time has been remarkable on this issue. No non-death penalty state has adopted capital punishment since 1995. This trend is even more impressive when compared to Roper. In that case, it took just six states to newly abandon the practice for the Court to find it unconstitutional. These six states were added to the twelve states that already prohibited juvenile offender executions, as well as the twelve states that had rejected the death penalty altogether.

The Roper Court did rely on additional considerations, however. The Court was also concerned about factors such as the infrequency which with the practice was employed and juveniles’ general lack of maturity, underdeveloped sense of responsibility, and lesser culpability than adults. Still, when comparing the shift in states’ rejection of executing juvenile offenders with the recent shift in states rejecting capital punishment altogether, the latter is more overwhelming. While a change in just six states’ laws pushed the Court to find unconstitutionality in Roper, we have recently had seven states abandon the death penalty in its entirety. That puts us at nineteen states rejecting capital punishment. In Atkins, that same number of states—nineteen—specifically rejected executing intellectually disabled offenders, and in Roper, just eighteen states specifically rejected the practice of executing juvenile offenders. Employing this method of state-counting, which the Court has emphasized, provides the “clearest and most reliable objective evidence of contemporary values,” it seems that we have reached the territory of possible unconstitutionality of capital punishment.

There remains the issue that capital punishment, unlike the practices of executing intellectually disabled persons or juvenile offenders, is specifically mentioned in the Bill of Rights. How could a punishment contemplated by the Constitution be unconstitutional? First, although the Constitution mentions capital punishment, it does not specifically indicate its constitutionality. It suggests that, if capital punishment is to be employed, there are limits on its use—specifically that “[n]o person shall be held to answer for a capital … crime, unless on a presentment or indictment of a grand jury” (except in particular circumstances); that no one shall “be subject for the same offense to be twice put in jeopardy of life”; and that no person shall “be deprived of life … without due process of law.” Perhaps more importantly, because the Court has explicitly adopted an evolving meaning interpretation of the Eighth Amendment, a punishment that was once constitutional can become unconstitutional over time. This is what happened in Atkins and Roper, and this evolving approach does not provide exceptions for punishments mentioned in the Bill of Rights.

There are a number of reasons why one might argue that capital punishment is unconstitutional. Indeed, the petitioner in Walter v. Pennsylvania suggested that the rarity with which the punishment is employed, and the fact that its imposition is laced with racial bias, means that capital punishment should be found unconstitutional. Perhaps the best argument for unconstitutionality here, though, is based upon the number of states that have rejected the practice. Just as many states have rejected the death penalty as rejected executing intellectually disabled offenders and executing juvenile offenders—numbers that convinced the Court to find these practices unconstitutional. If the trend of abolition continues as it has over the past decade, the death penalty should be something that cannot withstand constitutional challenge. As the Court indicated in Atkins, the direction and consistency of rejecting the punishment will be overwhelming.

Meghan J. Ryan is an Associate Professor at Southern Methodist University Dedman School of Law. She teaches, writes and researches at the intersection of Criminal Law and Procedure, Torts, and Law and Science.

Suggested citation: Meghan J. Ryan, On the Road to Abolition: Capital Punishment and Its Uncertain Future in the United States, JURIST – Academic Commentary, Feb. 24, 2016, http://jurist.org/forum/2016/02/meghan-ryan-capital-punishment.php.