Case Western Reserve Law Review Volume 46 Issue 1 Article 3 1995 Canary Lecture: Death: The Ultimate Run-On Sentence Alex Kozinski Sean Gallagher Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Alex Kozinski and Sean Gallagher, Canary Lecture: Death: The Ultimate Run-On Sentence, 46 Case W. Rsrv. L. Rev. 1 (1995) Available at: https://scholarlycommons.law.case.edu/caselrev/vol46/iss1/3 This Front Matter is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CASE WESTERN RESERVE LAW REVIEW VOLUME 46 FALL 1995 NUMBER 1 CANARY LECTURE DEATH: THE ULTIMATE RUN-ON SENTENCE' Alex Kozinskit Sean Gallaghertt In his last term with the Supreme Court, Justice Blackmun threw down the gauntlet on the death penalty, stating, in the great tradition of Justices Brennan and Marshall, "From this day forward, I no longer shall tinker with the machinery of death."2 This left many court-watchers wondering what happened to the view he stated so staunchly twenty-two years ago in Furman v. Georgia,3 1. This article is adapted from a lecture delivered by Judge Kozinski at Case Western Reserve University School of Law as part of the Sumner Canary memorial lecture series. Please address all reprint requests to Judge Kozinski, U.S. 9th Circuit Court, 125 S. Grand Avenue, Pasedena, CA 91105. t Judge, Ninth Circuit Court of Appeals, Pasadena, California. J.D. Michigan, 1994. 2. Callins v. Collins, 114 S.Ct. 1127, 1130 (1994) (Blackmun, J., dissenting from the Court's denial of certiorari). Justice Brennan first articulated his absolute opposition to the death penalty in Furman. Furman v. Georgia, 408 U.S. 238, 305 (1972) (Brennan, J., concurring) ("Today death is a uniquely and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity."). Justice Marshall similarly voiced his conclusion that capital punishment is unconstitutional in Furman. Capital punishment in his view violates the Eighth Amendment because "[tihere is no rational basis for conclud- ing that capital punishment is not excessive ...[and] because it is morally unacceptable to the people of the United States at this time in their history." Id. at 359-60 (Marshall, J., concurring). 3. 408 U.S. 238 (1972). Justice Blackmun dissented in Furman in part because he CASE WESTERN RESERVE LAW REVIEW [Vol. 46:1I when he dissented from the Court's decision to strike down all death penalty statutes then in effect. Apparently, nothing happened to change this view except two decades of death penalty cases. Justice Blackmun concluded that the task the Supreme Court had taken on in Furman-overseeing the administration of the death penalty to ensure it is not "so wantonly and so freakishly im- posed" 4 -was fruitless.5 So he did exactly what he accused the Furman Court of doing: He "just decided that it [was] time to strike down the death penalty."6 With Justice Blackmun's retirement, no sitting Supreme Court Justice, insofar as we know,7 holds the view that the death penalty violates the Constitution. We can take it for granted, then, that the Supreme Court will not abolish the death penalty in the United States within the foreseeable future.8 But that ought not to obscure other questions fairly presented by Justice Blackmun's cry of exas- peration: Is the death penalty morally justified? Does it serve a legitimate societal purpose? Is it worth the resources we are devot- ing to it? Death cases9 consume more and more of courts' time and at- tention these days,'0 and no other cases are quite so grave or felt that '"the advisability of capital punishment is a policy matter ordinarily to be re- solved by the legislature or through executive clemency and not by the judiciary."' Id. at 407 n.4 (Blackmun, J., dissenting) (quoting Maxwell v. Bishop, 398 F.2d 138, 154 (8th Cir.), cert. granted, 393 U.S. 997 (1968), vacated, 398 U.S. 262 (1970)). 4. Furman, 408 U.S. at 310 (Stewart, J., concurring). 5. See Callins, 114 S. Ct. at 1129, 1134-35, 1137 (Blackmun, J., dissenting from the Court's denial of certiorari). 6. Furman, 408 U.S. at 408 (Blackmun, J., dissenting). 7. Some recent murmuring from Justice Stevens suggests, however, that he may be taking up the mantle. See, e.g., Lackey v. Texas, 115 S. Ct. 1421, 1422 (1995) (Stevens, J., respecting the denial of certiorari) (questioning whether the principal purposes of capi- tal punishment (retribution and deterrence) are served by executing a prisoner who has been on death row for 17 years); Harris v. Alabama, 115 S. Ct. 1031, 1037 (1995) (Stevens, J., dissenting) (concluding that an Alabama statute giving the trial judge unbri- dled discretion to sentence a defendant to death is unconstitutional). 8. Even if several Justices were to undergo a complete change of heart and declare the death penalty unconstitutional, it is extremely unlikely that a majority of the Supreme Court would agree with this. The closest the Supreme Court has ever come to declaring the death penalty unconstitutional was in Furman. Since then, the Court has denied every systematic challenge to capital punishment, albeit occasionally by only a narrow margin. See, e.g., McCleskey v. Kemp, 481 U.S. 279 (1987) (5-4 decision) (rejecting the claim that Georgia's capital punishment scheme is unconstitutional because it has a racially discriminatory impact). 9. By "death case" we mean any criminal case in which the death penalty is a possi- ble sentence. 10. The number of death cases reaching the federal courts of appeals has increased 1995] DEATH present quite the same mix of urgency, emotion, complexity, and drama. Somewhat less obviously, the death penalty is also a fasci- nating study of democracy in action. Our process for imposing and carrying out the death penalty reflects an uneasy accommodation between the will of the majority-and a fairly substantial majority at that-who favor the death penalty, and the determined resistance of a small but able minority." The net effect is that we have little more than an illusion of a death penalty in this country.'2 To be sure, we have capital trials; substantially in the past few years. See generally United States Court of Appeals for the Ninth Circuit, Request for Extending Funding for the Ninth Circuit Death Penalty Law Clerk Program (July 28, 1993) (on file with authors). But federal judges do not spend nearly as much time on the death penalty as their counterparts in the state supreme courts, who spend as much as one-third of their time handling capital cases. See, e.g., Robert Sherrill, Death Row on Trial, N.Y. TIMES, Nov. 13, 1983, § 6 (Magazine), at 112 (indicating that the Florida Supreme Court spends one third of its time on death penalty appeals); Gerald F. Uelmen, The Lucas Court's Seventh Year: Achieving a Balanced Menu, L.A. DAILY J., June 8, 1994, Res Ipsa (Magazine), at 8 tbl. 1 (noting that between 1987 and 1994 an average of 28.6% of allopinions published by the California Supreme Court per year were capital cases). The Supreme Court of the United States also spends a remarkable amount of time on death penalty appeals due to its recently acquired role in administering capital punish- ment. See Godfrey v. Georgia, 446 U.S. 420, 438 (1980) (Marshall, J., concurring) ("Nearly every week of every year, this Court is presented with at least one petition for certiorari raising troubling issues of noncompliance with the strictures of Gregg and its progeny." (footnotes omitted)). In an era when the number of published opinions from the Supreme Court has dwindled, the Supreme Court continues to issue a regular stream of opinions in death cases. For instance, in the 1993 term, the Court published only 84 opinions, see David F. Pike, Productivity is Low this Term for High Court, L.A. DAILY J., Dec. 15, 1994, at 1, but seven of those were death penalty cases. U.S. Supreme Court, L.A. DAILY J., Aug. 10, 1994, Res Ipsa (Magazine), at 33, 33-38. By our unofficial count, the Court has issued over 80 full opinions in death penalty cases since Furman. 11. See BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF JUSTICE STATISTICS 1993, at 200-01 (Kathleen Maguire & Ann L. Pastore eds., 1994) [hereinafter SOURCEBOOK] (not- ing that in 1993, 72% of Americans favored the death penalty for murder, while only 21% were opposed). 12. For this phrase we are indebted to Chief Justice Rehnquist, who in 1980 had the following to say about the procedures that must be followed before a death sentence can be carried out: It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital pun- ishment statutes do not violate the Constitution, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the existence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal pro- ceedings.. .. Of the hundreds of prisoners condemned to die who languish on the various "death rows," few of them appear to face any imminent prospect of CASE WESTERN RESERVE LAW REVIEW [Vol.