The Jury's Still Out: Capital Punishment & Democracy

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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. …