|Richard Bonnie: “Abolition [of
the death penalty] is not in the cards” at this point.
Posted March 5, 2004
Death Penalty Should Be Narrowed to Fewer
Crimes, Bonnie Says
Given that abolition of the death penalty is unlikely, opponents of
it should press for the crimes to which it can be applied to be sharply
narrowed, U.Va. law professor Richard
Bonnie told the American
Constitution Society March 1.
The death penalty is “anchored in retributive justice,” said Bonnie,
who advocates abolition. He represented the first four men sentenced
to death in Virginia after the Commonwealth reinstated capital punishment
Since World War II there has been a worldwide trend to abolish the
death penalty, he said. The United States is among the last industrial
democracies to still have it. Its continuation in the Soviet Union,
China, and South Africa associates it with repressive regimes and its
elimination in Europe showed it was not necessary. In 1966, 46 percent
of Americans favored abolition. Then support for capital punishment
rose, which Bonnie ascribed to President Richard Nixon's “emphasis
on punitive justice.”
At this point, “abolition is not in the cards,” Bonnie said. He predicted
that capital punishment will continue for the foreseeable future but
possibly with fewer executions.
The Constitution's framers sanctioned the death penalty in the due
process clause of the Fifth Amendment, he said.
As part of the “due process revolution” of the Warren Court in the
1960s, concerns about fairness of the criminal justice system and the
desire to reduce the risk of mistakes, capital punishment came to be
seen as a problem.
There is a “clear record of racism in use of the death penalty in
the South,” Bonnie added.
A second factor was increasing moral sensitivity to the death penalty
by those who impose it. Most Supreme Court appointees had no steadfast
personal opposition to the death penalty at the time of their appointment. “They
didn't see it part of their mission to abolish it,” Bonnie said. “But
the more of these cases they saw, the more concerned they became. Being
responsible for these cases is a serious moral burden for the judges
and attorneys to bear. They start out passive but become opposed.”
In the 1960s the NAACP's strategic attack on the death penalty focused
on jury selection. But additionally, only a very small number of capital
murder convictions actually resulted in the death penalty, which could
arguably make it capriciously imposed. Moreover, condemned men were
disproportionately black or from poor backgrounds.
Before outlawing the death penalty in Furman v. Georgia in
1972 the justices were 6-3 in favor of the death penalty and found
no constitutional defect in it.
Opponents described it as a discretionary system that couldn't be fixed and
shifted the argument against it from focusing on the due process clause to
the Eighth Amendment, which forbids “cruel or unusual punishment.”
“The Court struck down all statutes on the books,” Bonnie said, “and
then temporized, emphasized the death penalty's arbitrariness,” and
hoped legislatures would take up that view and not re-enact capital
punishment laws. But 35 states did, almost immediately. Some made it
mandatory, some put in “guided discretion” clauses that allowed it
in aggravated circumstances.
In 1976 in Gregg v. Georgia, the Court upheld “guided discretion.”
“Post- Furman, abolition is off the table,” Bonnie concludes.
Abolitionists now fear that pushing for an end to it could provoke
a constitutional amendment to allow it.
That leaves three other options, he said. One would
be to push state supreme courts to take the heat for eliminating it.
This was the approach chosen by the U.S. Supreme Court, he said. Second
would be to push for aggressive Court review of each case to look for
errors in the conviction. California tried this and reversed every
death sentence examined on the basis of errors discovered. But most
of the judges involved in the review were then voted out.
The final route is to narrow the class of offenses to which the death
penalty applies, such as limiting it to cases in which a police officer
is killed or a witness is murdered. By choosing option two, the Court
missed many opportunities to develop the final option, Bonnie said,
and “should have been more aggressive” about limiting the death penalty.“
How would they do that? Under the Eighth Amendment certain principles
could be used to reduce the arbitrariness, he said.
First would be to require “clear evidence of a criminal offense proven
to a jury.” Second would be “individuality, looking for extenuating
circumstances in individual cases.”
Third would be the “reliability of the adjudication.” Are the facts
in the case reliable and did they get the full and serious attention
of the jury?
Fourth is proportionality. The death penalty is disproportionately
applied in cases of rape, for accomplices to murder, and for under-age
or mentally ill offenders. The result would be a very small number
of cases where people could receive the death penalty.
The death penalty tends to be more common in cases where the victim
of the crime is white, Bonnie said. “The systemic problem is that in
the aggregate, black perpetrators and victims' lives are discounted.
The problem is you can't prove that in the individual circumstances
of a case.”
“If the Supreme Court takes their adjudication seriously, they don't
have any choice but to develop another line. I don't have any reason
to think they will.”
“They need to see the data on sentencing,” he said. “And continue
to unfold the Eighth Amendment jurisprudence. An aggressive review
is going to make a lot of people angry. They could have done this in
the ‘70s and ‘80s but they backed off from it. There is some receptivity
in the public to making the death penalty fairer. Or Congress could
do this tomorrow.”
• Reported by M. Marshall