A legal scholar explains the history of the Court’s death sentence jurisprudence and ponders its future.
Carol Steiker February 22, 2022
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The most conservative Supreme Court in a century has not yet fully put its stamp on the death penalty in America or on conditions of confinement within prisons. Nor, for that matter, have the justices delivered a recent ruling on the ways in which local officials control pretrial detention or impose hefty fines and fees on those who get wrapped up in criminal justice systems. The Eighth Amendment, as the newly constituted Roberts Court sees it, has yet to be written even though public debate over capital punishment, solitary confinement, and excessive bail often drive broader conversations about criminal justice in the United States.
Some trends, however, are apparent. The departure of Anthony Kennedy and Ruth Bader Ginsburg took from the Supreme Court two justices who supported key limitations on the death penalty and expanded protections for prisoners under the “cruel and unusual punishment” clause of the Eighth Amendment. They were replaced by two justices, Amy Coney Barrett and Brett Kavanaugh, whose lower-court records suggest broad support for capital punishment and little appetite for expanded Eighth Amendment protections for prisoners.
The question then is not whether the Court will limit capital punishment further but whether the conservative majority will reverse the limitations on the death penalty that Kennedy and Ginsburg helped establish in the past two decades. In 2002, for example, the Supreme Court in Atkins v. Virginia outlawed the execution of intellectually disabled prisoners. Just two years later, the Court in Roper v. Simmons outlawed the execution of people who committed their capital crimes when they were juveniles. Are the precedents from these cases now vulnerable to a Court that has shown a new willingness to overturn established doctrine?
Some of the same questions may also be asked of the future of the Eighth Amendment as it relates to the use of solitary confinement inside prisons. Tens of thousands of men and women (and juveniles) are held daily in isolated detention across the country — complete statistics are impossible because so many corrections departments won’t share complete records — and many of these prisoners have legitimate claims that their treatment fails to meet the “evolving standards of decency.” That’s the proportionality standard the justices have adopted to evaluate claims under the Eighth Amendment.
For answers to some of the questions, I turned to Carol Steiker, a lawyer, author, and Harvard Law School professor who has enjoyed a rare view of the Supreme Court’s recent history with the Eighth Amendment in general and the death penalty in particular. As we discuss below, Steiker clerked decades ago (as did Justice Elena Kagan) for Justice Thurgood Marshall shortly before he retired from the court. More recently, Steiker co-authored a well-received book with her brother, Jordan Steiker, about the Supreme Court and capital punishment.
Steiker was asked five years ago, when the acclaimed film, Marshall came out, for some insight into how Justice Marshall approached Eighth Amendment law when capital cases came before the court. She recalled, “The death penalty was a big deal in his chambers. He would tell us stories about early in his career when he represented defendants at trial as well as on appeal in death penalty cases. Mostly they were black men accused of crimes against white victims in the South. And one thing he said often is that he always knew when he had an innocent client because that’s when the jury would sentence him to life imprisonment instead of death. And that really stuck in my head.”
Here’s Steiker with her views of where Eighth Amendment jurisprudence is likely headed under the Roberts’ court. She’s particularly intrigued by a line of reasoning offered recently by Justice Neil Gorsuch that suggests the possibility of a sea change in the way the court views “evolving standards of decency.” The interview was gently edited for length and clarity.
COHEN: Let me start with an abstract question. You clerked decades ago for Justice Thurgood Marshall, the only Supreme Court justice to ever represent a death row prisoner. He was, famously, an opponent of capital punishment after seeing firsthand the racial disparities at the heart of what Justice Harry Blackmun once called the “machinery of death.” What do you think Justice Marshall would say about the state of Eighth Amendment jurisprudence today?
STEIKER: It’s not a hard question because Justice Marshall, along with Justice William Brennan, dissented from every death sentence and execution from 1976 — when the Court reinstated the death penalty as constitutional in Gregg v. Georgia and accompanying cases — to when each of them retired from the Court. And Justice Marshall would, in every dissenting opinion, begin it the same way. And I can remember it because I typed it many times. The dissent would read something like: Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution, I would grant the writ of certiorari and vote to vacate the death sentence in this case.
And then, often, Justice Marshall and/or Justice Brennan would go on to say: Even if I didn’t hold this view, that the death penalty is always unconstitutional, I would grant review or I would rule for the defendant if the cases were actually granted. So we know that Justice Marshall along with Justice Brennan adhered to their views expressed in their dissents in Gregg and their majority opinions in Furman v. Georgia in 1972 that the death penalty was per se a violation of human dignity. That was the way that they saw it.
That said, in the time since Gregg was decided, a number of other justices have actually come over to the Brennan and Marshall camp. The first to do so actually did so after his retirement from the Court. Justice Lewis Powell, who was one of the dissenters in Furman. He did not rule the death penalty unconstitutional initially in that 1972 case. He was one of the four Nixon appointees who took that view. Powell ended up writing the majority opinion for the Court in McCleskey v. Kemp, which in 1987 rejected a constitutional challenge to the death penalty on the grounds of racial discrimination, which was well documented.
And the Court said even if that study is valid, which we don’t need to rule on, McCleskey still loses his discrimination claim 5–4. Brennan and Marshall dissented in that case obviously as well. Shortly thereafter Powell retired from the Court and John Jeffries, who later became the dean of the University of Virginia School of Law, wrote an official biography of Justice Powell and interviewed him many times. And in the course of those interviews Justice Powell said that he regretted his vote and opinion in McCleskey and that he had come to the view, a little late, that the death penalty was unconstitutional.
COHEN: My sense is that there was a period about a decade or so ago, when the Court was more evenly split, where there was likely more hope for capital abolitionists or those who want to restrict the instances of capital punishment — we saw it with juvenile offenders, we saw it with intellectual disabilities Do you think Justice Marshall today, in 2021, with a Court that includes Justice Brett Kavanaugh and Justice Amy Coney Barrett and so forth, would think that some of those gains are going to slip away or do you think he would counsel patience and hope that one day there will be a 6–3 split the other way on the Court.
STEIKER: Justice Marshall was a total impact litigation strategist. He was the one who argued Brown v. Board of Education, but that decision did not emerge full-grown from the head of Zeus. He had been litigating civil rights cases for decades so I suspect he would take the long view. He would likely note that several other justices eventually also came around to the Marshall and Brennan view of capital punishment. Justice Harry Blackmun — another of the four Nixon dissenters in Furman — shortly before his retirement in 1994 penned a very passionate denial of cert in Callins v. Collins, where he wrote that he had come to the conclusion that the death penalty is unconstitutional per se.
It was less than a year until Justice Blackmun retired from the Court, but interestingly he started writing dissents in all the remaining death penalty cases, beginning with the phrase Justice Marshall had first used: “Adhering to my view in Callins v. Collins…” He was very self-consciously modeling himself after Marshall and Brennan, neither of whom were still on the Court in 1994. That’s another Furman dissenter and Republican appointee who changed his mind.
Then there was Baze v. Rees in 2008. Justice John Paul Stevens, the Ford appointee who was not on the Court in 1972 for Furman, but who joined the Court shortly before Gregg in 1976. Along with Justice Powell and Justice Potter Stewart, Justice Stevens wrote the controlling plurality opinions in Gregg and the accompanying four cases that basically brought the death penalty back. This was the capital punishment plurality that launched the modern death penalty. But Stevens gets off the boat in 2008 and says: Now I’m convinced that the death penalty is unconstitutional, although unlike Justices Marshall, Brennan and Blackmun before him, Justice Stevens says he’ll continue to uphold the death penalty under Eighth Amendment jurisprudence out of respect for precedent.
And now, most recently, Justice Stephen Breyer wrote that long dissent in Glossip v. Gross, another lethal injection case in 2015, joined by Justice Ruth Bader Ginsburg, saying that the Court should grant a global challenge to consider the constitutionality of the death penalty, not actually saying that they would hold that it is unconstitutional, but offering a lengthy, lengthy opinion about all the problems with America’s death penalty. I think some of the arguments that Justice Breyer made in 2015 are different from the arguments that Brennan and Marshall made in the 1970s, and I think time has shown the power of those arguments.
One was the problem of wrongful convictions. Justice Breyer in Glossip put a lot of weight on evidence that people were sentenced to death for crimes they did not commit. There was less evidence of this back in the 1970s, because we didn’t have DNA testing then, so that’s a powerful new moral and legal argument against capital punishment.
The other problem is the incredible lengthening time on death row, which now averages more than two decades. Justice Breyer has always said that a death sentence is not actually a sentence of execution but rather a sentence of very, very lengthy incarceration, usually decades of solitary confinement, before you are executed, if you ever are. And he’s said that is a very cruel punishment.
COHEN: You could argue also, though you didn’t mention him, that former Justice Anthony Kennedy softened his views on capital punishment. Not to the extent that he was ever a vote for its abolition, but he certainly was a crucial vote for its restriction — twice — and then subsequently defended his view that there must be limitations. Do you see a Republican appointee on the Supreme Court today that you would target as the likely candidate for a similar reversal along the lines of what you have described?
STEIKER: No.
COHEN: I guess the only person one could conceive of having an about-face on the death penalty is Chief Justice John Roberts, but there is no indication that that is in the cards, right? Certainly there’s nothing in his public writing to suggest a change is near.
STEIKER: I think the vetting process for justices has gotten much more political, and so I don’t think we are likely to see the transformations we saw not just with Blackmun and Stevens but with Souter and Kennedy as well. Those were Republican appointees who often were tagged, later in their tenure, as being on the left wing of the Court, and who both penned multiple opinions expressing concerns about the administration of capital punishment.
COHEN: My sense is that when Glossip was decided, six years ago now, there was this optimism among advocates that things were really close to a breakthrough, to more restrictions on the death penalty or even to capital abolition. Here was Breyer, asking for a more complete review, and there seemed to be real momentum toward real change. But we went from a 5–4 majority then with Kennedy as the swing vote to a 6–3 conservative majority, where I guess you would say that the Chief Justice is the most moderate of the six, but clearly no fan of restrictions on capital punishment. Do you get the sense as so many others do that the capital reform window has now closed for a period?
STEIKER: I am on record as saying that. My brother and I wrote a book titled, “Courting Death,” which was published (in a nice little irony) on November 7, 2016, that would be the day before Donald Trump was elected president. We, along with most people we knew, thought that Hillary Clinton had it in the bag and that Merrick Garland would be on the Court. So you’d likely have four plus two possible votes (Garland and Kennedy) to abolish. We predicted rather confidently that the Court would abolish the death penalty under the Eighth Amendment and explained how much of the doctrine to justify doing so was written by Justice Kennedy and could easily bear a reading that abolished capital punishment.
But of course, Merrick Garland never made it to the Supreme Court and Justices Gorsuch, Kavanaugh and Barrett did. I do think that the Court’s Eighth Amendment jurisprudence remains and, contrary to what some other people think, I do not think that this Court will extirpate it, root and branch. If the Eighth Amendment’s jurisprudence remains intact through this conservative era and the practice of capital punishment continues to decline, then at some later point that jurisprudence probably will support a Supreme Court Furman II ruling abolishing capital punishment of the kind we predicted would come sooner rather than later.
COHEN: Let me ask you now about something else you wrote, over a decade ago, about how the development of Eighth Amendment law and advocacy influenced the criminal justice system more broadly, aside from capital punishment. What did you mean back then, what were you seeing that made you write that, and do you think that’s still the case? That the Eighth Amendment is shaping justice and justice reform more broadly?
STEIKER: Oh, for sure. One way in which Eighth Amendment law has affected the non-capital context is the way the Court has used it in the juvenile-life-without-parole context. Those cases are not death penalty cases, and yet the Court has used its powerful Eighth Amendment jurisprudence, first to say that juveniles who don’t kill people cannot get the death penalty. That was Graham v. Florida in 2010. And then to say two years later, in Graham v. Miller, that even juveniles who kill people cannot get mandatory life without parole sentences the way adults can.
But the biggest change has been the development of mitigation evidence. The Court has required individualized sentencing in capital cases, which are not required in non-capital cases. We have all kinds of mandatory sentences in non-capital sentences: three-strikes laws and mandatory minimums and mandatory enhancements, and all that. Only capital defendants have a right to have their life histories presented. But it’s a pretty robust right and consequently capital defense lawyers have really learned how to do that and, as my brother Jordan and I have written about, that has been a big cause of the massive reduction in the use of the death penalty over the last two decades. Lawyers have gotten much better at humanizing their clients and explaining how capital crimes could have happened, and juries are reluctant to impose the death penalty, even in really terrible cases. The power of mitigation in capital cases has inspired many lawyers and public defender offices to investigate and mount mitigation presentations in non-capital cases as well, in an effort to combat some of the overly harsh sentences that drive mass incarceration.
COHEN: So, you are making the point that it’s not just a change in the sensibilities of prosecutors, which we are also seeing in some jurisdictions, but also robust defense work that is causing a decline in capital sentences.
STEIKER: Strong defense work has changed the proclivities of prosecutors. Prosecutors don’t want to lose. A lot of times defense lawyers will bring their mitigation evidence to prosecutors before trial and say: “Hey, look. Look at all this. Our guy will plead to life but you have to give him life.” That’s the way a lot of this happens and a lot of it spills over to non-capital cases. So now a lot of non-capital defense offices now have mitigation teams and mitigation training. Sentencing work has always been the neglected stepchild of defense lawyers, but I think what capital advocacy has shown is how powerful it is and how systemically it can be deployed in the non-capital area.
COHEN: What do you make of the conservative movement for the abolition of the death penalty? Do you think it’s here to stay? Do you think it can survive the broader political cleavage we are seeing? Do you think a Republican president would nominate to the federal bench a lawyer who had argued against capital punishment as applied now in the U.S?
STEIKER: No, I don’t think that’s going to happen. There has always been a solid but small conservative wing of the abolitionist movement, which comes from a few places.
One, religion. The Pope is against the death penalty. People who are Catholic don’t always follow the Pope, but he’s pretty influential. So, people on religious grounds, many of whom are otherwise conservative, oppose the death penalty.
Two, libertarians and anti-big government advocates. À la Grover Norquist, they want to “shrink big government so it is small enough to drown in a bathtub.” The death penalty is the ultimate failed government program: it is hugely expensive and fraught with error. It kind of makes sense that people with either religious or libertarian agendas would oppose the death penalty; George Will has opposed the death penalty for decades.
COHEN: But do you see abolition increasing among conservatives? Are you tracking that? My perception is that the movement is growing in those circles.
STEIKER: I do think that the number of people opposed to the death penalty has grown across the political spectrum. The whole debate has shifted, in terms of what percentage of the population is against capital punishment. This is the first time the Democrats have had an anti-death penalty plank in their national platform and elected a president who came out against the death penalty. But it is not obvious whether the movement away from the death penalty, which is a real thing, is disproportionately being driven by conservatives who have changed their mind or growing support among liberals. I haven’t seen research on that.
COHEN: Now let me ask you about the future. What do you think the arrivals of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the Court mean for the future of Eighth Amendment jurisprudence? Do you agree with the view that the Court’s latest conservative turn dampens any reasonable hope of new restrictions on capital punishment or new Eighth Amendment protections for capital defendants?
STEIKER: This is really interesting. We’ve had a little bit of a hint of where they might be going with this. It comes in the Bucklew case out of Missouri in 2019. Russell Bucklew wasn’t claiming that lethal injection was unconstitutional for everyone. He was saying that he had a medical condition that made it unconstitutional as applied to him; that he would drown in his own blood. He lost. Everyone loses on these lethal injection challenges, it seems.
Now, the Court usually responds to these challenges by saying the same thing: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.” But instead of saying that, which is the way these opinions tend to start, Justice Gorsuch began with the view that the death penalty is not vulnerable to constitutional attack because of originalism. That capital punishment is in the text of the Constitution.
That if you can only be deprived of life, liberty or property without due process of law you can be deprived of life if there is due process of law. That the fact that the Fifth Amendment, the double jeopardy clause, says that you cannot be held twice in jeopardy of life and limb suggests you can be held once in jeopardy of life. And the Grand Jury Clause of the Fifth Amendment says that in capital and otherwise infamous cases you have to have a grand jury indict you. Gorsuch points to the fact that the death penalty is mentioned in the Bill of Rights three times and says “we’re done.” That shows that in 1789 we had the death penalty and we cannot say it is unconstitutional today, because it was not unconstitutional then.
That suggests the possibility that this Court might unwind the whole “evolving standards of decency” doctrine on which the justices have relied for 50 years or more in understanding constitutional limits on the death penalty. That what is cruel and unusual punishment under the Eighth Amendment changes with the “evolving standards of decency that mark the progress of a maturing society,” the famous line from Trop v. Dulles, which held that it was unconstitutional under the Eighth Amendment to strip someone of citizenship for desertion during World War II.
Using the evolving standards of decency doctrine, the Court has built up a whole jurisprudence (this is what I say they can hang a future abolition on), a whole methodology around this, including the cases that say you can’t have the death penalty for offenders with intellectual disability, or for juveniles or for crimes less than homicide, and that you can’t have life without parole sentences for most juvenile offenders. Will the Court uproot those cases, all of them, root and branch? I find that unlikely. I think that’s where you wouldn’t get Roberts; the Chief Justice wouldn’t say you can throw out 50 years of precedent, dozens of cases.
COHEN: But that’s something that is on your radar as a possibility, right? Even if the Chief Justice switches, you still have five conservative justices hostile to death penalty challenges, don’t you?
STEIKER: It’s just a possibility at this point, but an unlikely one.
COHEN: So your sense is that there will be, at best, status quo on the Eighth Amendment’s jurisprudence? That there certainly won’t be an expansion of the limitations on capital punishment with this Court but here isn’t likely to be a reversal of recent precedent.
For example, you don’t anticipate a ruling that says that juvenile offenders can now be executed again, do you?
STEIKER: I don’t expect that ruling at all. I am not saying I think the Court will maintain the status quo without changing anything; I think it is very likely that they will nibble around the edges in lessening restrictions on the death penalty. We saw that with the Court’s shadow docket ruling on the Trump executions. The Court really leaned over backwards in favor of executions, and Justice Sonia Sotomayor wrote an anguished dissent in the last of those cases, the Higgs execution, about how she felt the Court was not respecting its own precedent and not dealing with important Eighth Amendment issues raised in those cases.
I don’t expect maintenance of the status quo, but will the Court completely gut its 50-year precedent about “evolving standards of decency”? No. I don’t think they are going to do that. I don’t think that the Chief Justice is the only conservative on the Court who has some respect for precedent, and honestly, they have other things they want to overrule more.
COHEN: There are always hot spots in Eighth Amendment jurisprudence. Solitary confinement right now is one and if you have any thoughts on that I would love to hear them. But where do you think the action is likely to be in Eighth Amendment law in the next few years? What key issues do you think are likely to make it to and be resolved by the Supreme Court.
STEIKER: I think we are likely to see the same kinds of claims like restrictions on juvenile life without parole. I think most of the Eighth Amendment restrictions that are plausible under current practice for the death penalty have largely made it to the Court.
I think one question is whether people with intellectual disabilities have to show that they were intellectually disabled before the age of 18. The clinical definition of intellectual disability requires proof of onset before the age of 18, but not everyone has or can find an IQ test before the age of 18, even when there is lots of other evidence that they may be intellectually impaired. Then there are people who become brain damaged, and so have the equivalent of intellectual disability, but not as a developmental issue and instead as something that happens in adulthood.
I think that’s an issue that may come up. I think certainly solitary confinement and restrictions on the use of life-without-parole sentences, whether those sentences are ever unconstitutional. I think lawyers will raise these because they have clients who may benefit from them, but as a practical matter this Supreme Court is not really where you want to be with these cases right now. I think they are highly unlikely to win any extensions of Eighth Amendment protections from the Supreme Court, whereas quite a few state courts may make more sense for these cases. Every state has some equivalent of the Eighth Amendment. Sometimes in exactly the same language — “cruel and unusual” punishment. Sometimes “cruel or unusual” punishment. Sometimes in addition to or instead of a requirement of proportional punishment.
Several of these states have interpreted their Eighth Amendment analogues more broadly than the U.S. Supreme Court. Most notably, the Washington Supreme Court declared its own death penalty unconstitutional under its Eighth Amendment equivalent. The Connecticut Supreme Court did the same. The Oregon Supreme Court just applied its state constitution to conclude it would be cruel and unusual to execute those on its death row in light of a recent legislative narrowing of its capital statute. State constitutional litigation is where abolitionist litigators have their best shots at narrowing or abolishing the death penalty right now.
