The Jury's Still Out: Capital Punishment & Democracy

By Vitullo-Martin, Julia | Commonweal, August 16, 2002 | Go to article overview
Save to active project

The Jury's Still Out: Capital Punishment & Democracy

Vitullo-Martin, Julia, Commonweal

Since the death penalty in this country is reserved for "a narrow category of the most serious crimes," usually heinous ones, it is fitting that the murders involved in this summer's two precedent-setting Supreme Court decisions are no exceptions. Daryl Atkins, whose appeal produced the Supreme Court decision banning the execution of mentally retarded murderers, had been convicted in Virginia of abduction, armed robbery, and capital murder. After a day of drinking and smoking marijuana, he and an accomplice abducted a serviceman at gunpoint, robbed him of the cash he was carrying, and drove him to an automated teller machine where they forced him to withdraw two hundred dollars. They then took him to an isolated area and--ignoring his pleas to be left unharmed--shot him eight times, killing him. Atkins had sixteen previous felony convictions, several involving wanton violence. In the penalty phase of the trial, the state of Virginia argued that Atkins was a man of "vile dangerousness."

Mustering the evidence of polling data, legislative votes, and world opinion to prove growing consensus, the Supreme Court invoked the Eighth Amendment's ban on cruel and unusual punishment and concluded that "death is not a suitable punishment for a mentally retarded criminal." Overturning a 1989 decision written by Justice Sandra Day O'Connor that upheld such executions, the court cited the "dramatic shift in the legislative landscape." In 1989, sixteen states had prohibited executing mentally retarded criminals. Today, thirty states do.

The 6-3 decision was delivered by Justice John Paul Stevens and joined by Justices O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--a familiar liberal alliance, with O'Connor and Kennedy as swing votes. Chief Justice William Rehnquist dissented, joined by Antonin Scalia and Clarence Thomas. Justice Scalia also filed a dissenting opinion, in which Rehnquist and Thomas joined--the familiar conservative alliance.

"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," wrote Scalia in a scathing eighteen-page dissent. He accused the majority of relying on "feelings" and "intuition" rather than the meaning of the Eighth Amendment. "The arrogance of this assumption of power takes one's breath away," he wrote. "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes."

And there's the rub: current social attitudes. Using the phrase "evolving standards of decency" four times, the majority concluded that a consensus against such executions has developed. Scalia, Thomas, and Rehnquist say it hasn't. Both sides seemed to agree that the Eighth Amendment was written with what Yale Law Professor Akhil Reed Amar calls a built-in escalator clause. That is, over the years society has come to regard as harsh or cruel punishments that were once common and acceptable--triggering the Eighth Amendment ban.

If national opinion is indeed changing about capital punishment, how are the courts to know? The majority's answer is polling data combined with the legislative landscape. The truth is that the nation's Founders had a better answer. They thought long and hard about how to ensure that the evolving conscience of the community would be reflected in judicial decisions. Their solution is called the jury. Just as elections are the constitutional method by which the popular will is expressed to the executive and legislative branches, juries are the expression of the popular will in the judicial branch. If American democracy is working properly, a decline in public support for capital punishment will be reflected in these two popular vehicles--elections and juries.

Which brings us to the summer's second case, Ring v.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Jury's Still Out: Capital Punishment & Democracy


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?