University of Richmond UR Scholarship Repository
Law Faculty Publications School of Law
2017 Following Finality: Why Capital Punishment Is Collapsing under Its Own Weight Corinna Barrett Lain
Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Civil Rights and Discrimination Commons, Criminal Law Commons, and the Law and Society Commons
Recommended Citation Corinna Barrett Lain, Following Finality: Why Capital Punishment Is Collapsing under Its Own Weight, in Final Judgments: The eD ath Penalty in American Law and Culture (Austin Sarat, ed., Cambridge University Press 2017).
This Book Chapter is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Final Judgments The Death Penalty in American Law and Culture
Edited by Austin Sarat Final Judgments
THE D EATH P ENALTY IN AME RICAN LAW AND CULTURE
Edited by AUSTIN SARAT Amherst Coll ege
University of Richmond
AUG 07 201 7
law Library
CAMBRIDGE UNIVERSITY PRESS CAMBRIDGE UNIVERSITY PRESS
Un ive rsity Pr inting I lorrsc, Cambridge c 11 2 8Bs , United Kingdom
One Liberty Pla1.a, 20th l' loo r, New York, 'IY 10006, US;\ +77 'v\lilli am slow n Road , Port Me lbourn e, vie 3207, ;\ustrn li ;r 4i:>+3h-f, 211d l' loor, f\ nsari Rm1d, Dmyagan j, Delhi - 11 0002, India 79 f\ nso11 Road, li o(i-04/06, Si11 g;1 porc 07<)906
Ca mbridge U11 ive rsit y Pre ss is 1x1rl of tir e Uni ve rsit y of Cambridge . It furtl1 crs tir e U11 ivcrsity's miss io11 by di .ssc lll inaling knowledge in tir e pursuit of cdu c;rl'i on, learn ing, ;md resc www.c;11 nbridge .org Info rm ati on 011 this tit-le: www .carnbridge.org/978 uo7155+80 IJ O I : 10.1017/978 1316658765 (\;) C ISBN 978-1-107-15548-0 1-l List of Contributors /Jage ix Acknowledgments XI Introduction: Starting to Think about I• inality in Capital Cases A11 sti n Sara t Finality and the Capital/Non-Capital Punishment Divide 9 Cari ss a Byrn e 1-l ess ick 2 Following Finality: Why Capital Punishment Is Collapsing under Its Own Weight Corinna Barrett Lain 3 The Time It Takes to Die and the Death of the Death Pen~1lty: Untimely Meditations on the End of Capital Punishment in the United States 52 Jennifer L. Cu lberl 4 Grand Finality: Post-Conviction Prosecutors and Capital Punishment 90 Daniel S. Meclwecl 5 Existential Finality: Dark Empathy, Retribution, and the Decline of Capital Punishment in the United States 123 Daniel LaChance Afterword: Death and the State Jenny Carroll Index VI I 2 Following Finality vVhy Ca/Jital Punishment Is Co lla/Jsing under Its Own Weight Corinna Barrett Lain* Death is different, th e adage goes - different in its seve rity and different in its fina lity. ' Dea th , in its fin ality, is more th an just a punishm ent. Death is th e encl of our existence as we knovv it. It is fin al in an ex istential way. Because death is fin al in an ex istential way, th e Supreme Court has held th at spec ial ca re is clu e when th e penal ty is imposecl. 2 We need to ge t it ri ght. My claim in thi s chapter is that th e constitubonal regulation designed to implement that ca re has led to a se ri es of cascading effects th at threa ten th e continued viability of th e death penalty itself. Getting death ri ght leads to things go ing wrong, and things go ing wrong lead to stales letting go. l am not th e first to see how th e Supreme Co11rt's regulati on of th e death pena lty has led to its des tabi li za ti on over tim e. Others ha ve written abou t it.3 And severa l judges have now brought the conversation full circle, recogni zin g Special ilwnb lo Ron Bac igal, Ji1n Cibso 11 , and Mary Ke ll y Talc for co111 111 cnls 011 an ea rl ier cl ra fl , and lo I-l oll y \Milson and Zack Ma cDonald for their exc cllcni· research ass islancc. Beck v. i\l:1ba1na , 447 U.S. 625, 637 11980) ("As we ha ve oft en stat ed, !here is a signifi cant constilutional difference bciwccn th e dea th penally and lesser punish1ncnts. 'Deat h is a different kill(! of p11 11i slllncnt· fro111 any oth er whi ch 111a y be i111poscd in thi s co untry... . Frolll the point of view of th e defendant, it is different in both its seve rity and its lina lil y.'" ). 'v\loodso n v. North c,1ro li 11a , .µ 8 U.S. 280, 305 (1<)76). For th e Sup re1ll C CcJllrt 's dcd1rnt io11S to lh is effect, sec text acco111panying nolcs 5- 7. Carol <1 ncl Jordan Siciker's work is parlicul arly nolcworl hy in lhis regard . Carol S. Siciker and Jordan M. St·ciker, "Enlrc nclllncnt and/or Deslabilization? J{ eAccl ions on IAno lh er) Two Decad es of Co11slil ut"io1w l Reg1d aiio 11 of C1 pil al Punislllncnl·," Law o· /11 eque1lity (2012): 211; Carol S. Siciker and Jordan M. Stcikcr, "Cosl and Capital Pu nishmcnl : A New Considcralion Transfo nns an Old Dcbai c," University u( Chicago Legal /iurum 12010): 144; Jordan Stcikcr, 'The Am eri ca n Dea lh Pena lly from a Conscqu enlidisl Perspeclivc," '/'exas '/'ech La w Hevie1v 47I1995): 21 4; Jordan Stcikcr, "Restru cl uri ng Pos t-Conviclion Review of J!ecJ eral Conslilulional C laims Ra ised by Sialc Priso ners: Confron ling ihc New J!ace of fo:xc.:css ive Proc.:c duralism," University of Chicago Legal /ion.1111 (i998): )20 . Polfv111i11g Finality: Wh y Cc1/Jital Punishment Is CvllafJsing under Its Oum We ight 31 th e constitutional implications of this ph enom enon. 4 But thus far, th e rol e of Fin ality has received little attention in th e discourse. This chapter aillls to give it its clu e. To make Ill)' point, T First di sc uss th e role of Finality in th e ea rli es t developm ents of th e modern dea th penalty era - constitutional regulation, habeas litiga tion , and th e ri se of a spec iali ze d capital defense bar to naviga te th ose complica ted strudures. Beca use dea th is {med, we need to get it right. Next I turn to th e effects of those developlll ents - a ma ss ive tim e lag betwee n dea th sentence and exec uti on, and with it, th e di scovery of innocents among th e co ndelllned, skyrocketing costs, and concern s about th e conditions of long-term solitary confinement on dea th row. Getting death right leads to things going wrong. Finall y, I exa mine th e cascading effec ts of th ose developments - fa lling dea th sen tences and executions, penological justifi ca ti ons th at no longer make sense, and a growing number of states concluding that capital punishm ent is lllore trouble than it is worth . Things going wrong lead lo slates letting go. ln the end , th e Finality of capital punishlllent is what makes it so rarely Fin al, and so cos tly, cumbersome, and slow that it threa tens to collapse under its own we ight. Befo re getting started, a few caveats merit lll ention. First, we do not know how th e story ends. We ca n see th e traj ectory we are on now, but pred icting th e future is ri sky bu siness - anything ca n happen. Second, even if our current traj ectory continues, some states wi ll cling to th e death penalty no matter how little sense it makes or what th e res t of th e country do es. In short, T exas wil l go clown sw in gin g. Third, th e accumulated we ight of Finality is not th e only fa ctor threa tening th e death penalty's long-terlll feas ibility. Other factors, like declining hom icide rates and problems procuring lethal injection drugs, are also ha ving an impact, but they are not what go t th e ball ro lling and are not my focus here. Fourth and Fin all y, hi story is a bit mess ier th an th e linea r story I tell. Some developrn ents I mention later we re beginning to percolate ea rli er, some I mention ea rli er became stronge r later, and many we re interd epend ent with other developrnents also in play. r dea l with thi s compl ex ity by disc uss ing each development where l beli eve it to have had th e bi gges t impact, recogni zing th e nuances as bes t I ca n along th e way . Cavea ts asid e, my point is simply this: Following Finality all ows us to see th e c11111u lative nature of its heavy burden, and th e we ight of th at burden on th e dea th penalty today. Dea th is indeed different in th e nature of its Finality. But what makes it different may be what leads to its demise. -I C loss ip v. Cross, 576 U.S. _ , __, 135 S. Ct. 2726, 2755-80 (2015) (Breye r, }., dissc nlin g); Baze v. Recs, 553 U.S. 35, 78-87 (2008) (S lcvcns, J., concurring); Jones v. Chappell , 31 F. Supp. 3d 1050 (2014). Jones is disc ussed al lex! acco111 pa11 yi11 g 1iol es i81-82. 32 Corinna Barrett Lain BECAUSE DEATH I S FI NAL, WE NEE D TO GET I T RTGIJT In th e beginning, th ere was regul ahon. Wh en the Supreme Comt revived th e dea th penalty in i976, it did so on th e premi se th Gregg v. Georgia , 428 U.S. 153, 187 ( 1<)76). C regg revived Ili c dcalh pc1w lly ;1flcr lh c Supreme Gour! lwd ndccl it was un conslil11li o11al as th en achninislcrcd in f!tirm an v. Georgia , 408 U.S. 238 ( 1972) . 1 ' Woodso n v. North Cmo lin a, 428 U.S. 280, 305 (1976). 7 Ibid. ~ Gregg v. Georgia . 195-207. ') Ibid., 206-07. 0 ' Sec, for exa mple, Arn vc v. C reech, 507 U.S. 463 (1C)93); Zant v. Steph ens, 462 U.S. 8fo (1CJ 83 ); C lemons v. Mississippi , 4')-f U.S. 738 (1990); Lockcll '"Ohi o 438 U.S. 586 (1978); Hit chcock v. Dnggc r, 481 U.S. 393 ( 1<)87 ); Kansa s v. Ma rsh, 548 U.S. 163 (2006); Cald we ll v. Mississ ippi, 472 U.S. 320 (1985). " Coker v. Georg ia, 433 U.S. 584, 597-98 (1977); Kennedy v. Loui siana , 554 U.S. 407 , 421 (2008). " Ford v. Wai nwright , 477 U.S . 399, 409-10 (1986). Following Vin alily: Why Ca fJital Punishment Is CollafJsing under Its Own Weigh! 3 3 intell ectnally di sa bl ed was co nstitntional, until it was nol". 13 And executing offend ers who committed felony murder but did not th emselves kill or intend to kill was not consbtutional, until it was.'-f Other iss ues add ed to th e heap. Ques ti ons rega rding th e permi ss ibl e bounds of jury selection in capital cases, '5 th e necess ity of proportionality review, '6 th e admissibility of victim impact statements, ' 7 th e minimal responsibilities of co unsel in ca pital cases, 'Ha nd th e constitutional signifi ca nce of racial bi as in th e impos ilion of death"1 are call ed for clarifi ca tion , crowding th e Supreme Court's docke t. By one unoffi cial count, th e Court had iss ued over So opinions in ca pital cases between i976 and i99 5 - roughly four per year in th e first two decades of th e modern dea th penalty era.20 In terms of th e sheer number of capital cases dec id ed, th e Supreme Court's claim to "a n espec iall y vigil anl· conce rn for procedural fairn ess" 2 1 in th e dea th penalty co ntext made sense . But as oth ers have shown, th e Court's regulatory project was largely a fo r; ade - ove r 90 percent of those se ntenced to death before th e Court's i976 rulings were just as dea th-eli gibl e afterwa rds.22 What slowed executi ons wa s not so much th e Court's rulings, but th e fact of litigation itself. And litiga tion required la wye rs - la wye rs to litigate th e la w of capital punishment, and la wyers to litigate claims of lawye rs litiga ting it wrong. In th e first two decad es of th e modern death penalty era , th ere was pl enty of wo rk for both. Whil e some of th e legal wrangling centered around c hiri~ 1 in g th e dea th penalty's contours, much fo cused on th e basic representation that capital defendants received at trial , whi ch was bad - brea thtakingly bad. ' 3 Roper v. Si1rn 11o ns, 5+3 U.S. 55 r (100 5) (overruling Stanford v. Ke ntu cky, +92 U.S. 361 (H)89J) ; Atk ins v. Virginia, 536 U.S. 30+ (2002) (ove rruling Pemy v. Lynm1gh, +92 U.S. 302 (1989j). 14 Tison v. i\ri zo 11<1 , +8 1 U.S. 137 (1987) (ove rruling F11n111nd v. Florida, 458 U.S. 782 (1982)). '' With erspoon v. Illin ois, 39 1 U.S. 510 (1968); Morgan v. Illinois, 50+ U.S. 719 (1992); Uttccht v. Brown 55 r U.S. 1 (1007). 6 ' Pulley v. I larris, .f65 U.S. 37 (198+). '7 Payne v. Tenn essee, 5o r U.S. 808 (199 1) (ove rruling Booth v. Maryland, 482 U.S. 496 (1<)87)) . '~ Strickland v Washi11 gton, 466 U.S. 668 (r98,f). ' 9 l\!lcClcskcy v. Ke rnp, +81 U.S. 279 (1987). Alex Koz inski and Sca n Callagher, "Death: The Ultin ratc Run -011 Sc ntc 11 cc," Case \,\/es/em /{ese n>e LalV HevielV +6, no. l ( 1995 ): 3, ll.IO. Jord In th e ea rl y ye ars espec iall y, capital representation was provided by in experi enced, underp aid , 0 > Roscoe C . Howmd, Jr ., "T he Dcf11 11 ding of th e Post·-Co 11 vict io11 Defense Orga ni za ti ons as a Deni which 111ade navigating th e statute's provisions all th e more diffi cult.3' The only thing cl ea r about th e AEDPA was its purpose: to fru strate federa l review of state co nvi ctions and move th e locus of liti g<1ti on to state habeas corpus, an edifi ce that was itself des igned to fru strate federal review of state convicti ons.32 The AF:DPA was a success, at least by way of lowe r reversal rates,33 but in th e process of curbing federal habeas review, it fed th e monster it tried to tam e. However arca ne and elaborate federal habeas corpu s was before th e AEDPA, it wa s 111any times 111 ore ::ifterwards. Federa l habeas litiga tion continued unabated; indeed, it grew more prodigious over tim e. 3-1 What changed was its focu s. Rath er than ruling on th e merits of claims, federal co urts were mired in ruling on procedural rul es.35 Looking back on th e dense procedural thi cke t th at federa l habeas corpus had become, Jordan Steiker had it ri ght: what Congress meant was to prune th e forest, but wh at it did was acid more trees.36 Once aga in , the complex iti es of ca pital litigation ca ll ed for lawyers. At first that was a probl em. In a se parate (but related) move in 1996, Congress defuncl ecl th e dea th penalty resource centers th at had bee n providing co unsel in federal habeas cases. 37 "We should not be spending federal money to subsidi ze think tanks run by people whose sole purpose is to concoct th eo ri es to fru strate th e implementation of 8 th e dea th penalty," read an open letter to Congress. 3 In th e AEDPA, Congress did its best to shut clown federa l habeas claims. In cl efunclin g th e dea th penalty reso urce centers, it shut clmvn the lawyers who fil ed th em too . But those la wyers did not just pack up and go ho111 e. They found private funding, took positions in th e system elsewh ere, submitted reimbursements, and sometimes worked for fr eeN T'hen came 2000, with its high-profile death row exo nerations and revelations of lawyers fallin g asleep during capital trial s .~0 Over th e next seve ral l ' Lind h v. Mmphy, 521 U.S. 320, 336 ( 1997) ("( l]n a wo rld of silk pmscs and pigs ca rs, th e (Al\DPAJ is not a silk purse in th e art of statut ory drafting."). F Steiker, "Confronting th e New Fa ce of r-:xcessive Proceduralism," 342-4+ n Stcik cr and Slciker, "N o i\llorc 'T'inkcri ng," 387, 1L 70 (c iting sludi cs showing a ..J.O pcrc:c nl federal habe;1s reversal rate in capi tal cases before the Al\ DPA rn 1d 12.; percent reversal rate aft erwards). >- 1 Sec infra disc 11ssion "' notes .f9-5 1. 3; Steiker, "Confron ting th e New Fa ce of J•:xcessive Proccdurnlism," 317 (expl or ing cau ses of "e mergin g proccdmal feti shism" of federa l habeas co rpus in th e wake of th e Al\DPA). 6 3 Ibid. 320 . 37 Co1npare Judi ciary Appropriatio11s Act, 199), Pub. L. No. 103- 317, 108 Stat. 1724, 1750-- 51 (all oca tin g up lo $19.8 million for Death Penalty Resource Centers) with Judi cia ry Appro pri al io11 s Ac t, 1996, Pub. L. No. 104-34, 11 0 Stal. 1321 (providing l'liat "none of th e funds provid ed in this Act shall be av<1il.ible for Death Penalty Reso 11 rce Cent er or Post-Conviction Defe nder Organiza ti ons aft er April 1, 1996"). 38 Howard , "The Defundi11 g of the Post-Conviction Defense Organiz<1 li ons," 915 (qu oting Rep rese ntative Inglis, R., South Cmoli rn1). 39 Mark l-h1nsen, "From Death 's Door: With Federa ll y F11nded Appea ls from Capital Punish ment on th e Way Out, Lmvye rs Arc Wrestli ng with Q11csti ons About v\/h o Will Pursue th e Argu111 cnls lo Keep Condemn ed ln111;1t es," AHA /ouma/ 82, no. 6 (1996): 58-59. ·1 ° Cori1111<1 Barrell' La in , "Deciding Death ," Duke Law Journal 57, no. 1 (2007) : 43-..f )- 36 Corimw Barrett Lain years, qua lity capital de fense becam e vogue. The Supreme Court started en fo rc i11 & its competency standards:P The Am e ri can Bar Associa ti on iss ued new guidelines fo r d efense attorn eys in capital cases:"' And th e 2004 Innocence Pro tecti on Act gave states gran ts to improve th e quality of re prese nt ~1 ti o 11 in state capital cases.-13 A n eW e ra of capital de fense was born . Inadve rte ntly, th e Suprem e Court played a part in creating it. Decades of comtitutio nal regul a ti on added complexity to capital litiga ti on , and th at gave ri se to a speciali zed capital defense bar skilled in harnessing th at complexity and m aking it work fo r th em : H From inveshga ti on , to mitiga ti on , to vo ir dire, to pre ancl post-tri al m o ti ons and collate ral review, th ese lawyers left no stone unturned and no legal argu ment overl ooked. -15 They m ounted a vigorous defe nse, negoti a ted th e case when they could, fo ught tooth and nail at senten c ing, and so ug ht reversal o f death se ntences eve ry step of th e way. They held confe ren ces, conducted training, and shared notes, all with a single obj ective : keeping the ir cli ents ali ve. This is not to say that the world of capital defense had becom e a bed of roses. States with th e most executions still did th e least to provid e capital defendants with 6 th e level of representa ti on one woul d expect when th e stakes were li fe and death .-f And states witho ut fu ll y staffed, speciali zed units dedi cated to litigating capital cases on coll ate ral revi ew still faced a m assive shortage of lawyers willing and able to do th e wo rk. ~ 7 But both had the unintended effect of furth er slowing executions. Poor capi ta l defense at trial left more to litiga te on collateral review, and the dearth o f lawyers to do it c rea ted waitlists - long ones. California today presents a p rime example: its wa it from death se ntence to th e appo intment o f counsel fo r state h ~1b eas review is an incredible 8 - 10 years, and that's just th e beginning of the long and drawn-out p rocess o f coll ateral r ev i cw ." 1 ~ IH In sum, th e death penalty's linality gave ri se to vo luminous constitutio nal reguLi ti on and habeas litiga ti on, whic h gave ri se to complaints abo ut th e la ck of linality in litiga ting capital cases, whi ch th en gave ri se to habeas reform legisla ti on and yet more litiga ti on. Over time, what em erged was a speciali zed capital defense bar well versed in bo th structures, which slowed th e "machinery of dca th "-1'1 even m ore. Ancl that gave ri se to cascading effects of its own. ·" Wiggins v. S111 ith, 537 U.S. 1231 (200 3). ·1' i\BA, "Cuidelines for th e Appo inl 1n e11t and Pc1fornw nec of DeFcnsc Collnse l in Deat h Pe1wlty Cases (rev. ed. 2003)," 1-/ufsl ra Law Heview 3' (2003): 91). -n The Innocence Pro tection Act of 200.1. Pllbl ic La w No. 108-405. +I Stcikcr clll d Stc ikcr, "f'.n lrcnclnnent an d/or Des ta bili za ti on," 232. ·•5 Ibid. ·1r' Scan D. O'flr icn, "Capital Defense L1wye rs: T he Good, th e Bad, allCI th e Ug ly," Michigan Law Heview 105 (2007): 1069-70. ·17 Koz.inski and C,1Jl aghcr, "Dc<1 th : The Ulti nwtc Rlln-On Se ntence" 19. ·1" Jones , .. C happell, 1058. ·1'1 C illins v. Collins, 510 U.S. u41, l l)O (1994) (Blackll11 1n , )., disse nt ing). /<'o llo1ving Finality: 'vVhy Ca/Jita l Punishment fa CollafJsing under Its Own Weight 37 GETTI N G DEATH IU G llT L l•:ADS TO T HI NGS GO I NG WRONG Having disc uss ed how the death penalty's fi nality added complex ity to capital li tigati on, l fo cus here on how that compl exity fun da mentall y changed th e death penalty' s contours along anoth er dimension - tim e. In the mid-1 98os, th e first years fo r whi ch data are ava il able, tli e ave ra ge tim e lag betwee n death sentence and executi on was six years.5° In 1995 , when Congress was consid ering th e AEDPJ\, the ave ra ge tim e lag was el even years.5' In 2016, it was eighteen and a half years.52 One consequence of the mass ive time lag between dea th sentence and exec uti on is a pile-up on death row. Today, just under 3,000 condemned await their fate, a backlog th at wo uld take one exec utio n per clay for the nex t eight years to cl ear, ass umi ng no new death sentences in the meantime.53 T he time it takes to ge t death ri ght, and the pile-up it has produced, have in turn led to yet mo re disrupti ve developments: th e discovery of innocents among th e cond emned, concern s about th e inhumane co nditi ons of long-term solitary confinement on dea th row, and skyro cketing costs. Getting death right leads to things going wrong. Concerns about actual in nocence came fi rst. The problem wasn't new; DNA had been quietly exonerating the condemned since i993. 5-1 Bu t by th e late i99os, ad va nces in DNA had made the technology more ava ila ble, 55 and two other developments occ urred th at were needed to put it to use: lawye rs and time. T he lawye rs th at mad e a difference were not just any lawye rs. T hey were th e new fa ngled va ri ety, th e pro fess ional capital defe nders who had emerged from decades of co nstitutional regulati on and habeas litigati on. These lawye rs we re com mitted to canvass in g th e record for erro rs and co nd ucting th e fact ual in vesti gati ons necessary to make th eir claims sti ck , and in the pro cess, th ey provided an unpreceden ted level of sc ru ti ny to capital convictions. 5(i And because habeas cla ims come wit·h a sta tutory ri ght to counsel in capital cases, 57 these lawye rs were in th e right place, at th e ri ght time, to put advances in fo rensic technology to use. ; <> T racy L. Snell , "Capita l Punishment, 2012 - Slatislical Tables," U.S. De/Jarlme11l of /11 slice, (N C) 245789, May 2014), 14, www.b js.gov/conlenl/p11b/pdf/qmst.pdL 1' Ibid. 1' Deat h Pena lly lnfo nna lion Cc11l er, "f':xec 11li on Lisi 2016," Death Penally lnron 11a li on Center, www. cl ca Ih pena Il yi11 fo.org/exec u Ii o11 -Ii sl·-2016. 53 Deat h Penally In form ati on Cent er, "Dea th Row In mat es by Stal e an d Si1.c of Deat h Row by Year," Dea ll1 Pena lly lnfonnali 01 1 Crnier, www. dcalhpe1ia llyinfo. org/cl cath-row-inmales-slal c a1 1d-sizc-d e;1ll1 -row-ycar?scicl =9&did=188//yea r. ;.i La in, "Decidi ng Dea th," 47. 5'> Dea th Pc11 c11l y Infonnal ion Center, ''fn11 occ 11 c:c and !h e Crisis in tl )c A1ncri ca 11 J)calh Penalty: l ~ xcc 11 ti ve Summary," Dcalh Penall y l11fonnalio11 Cenler, 2004, ww w.dca 1·hpenaliyi11fo .org/ innocc 11 cc-a11d-erisis-amcric:a n-dealh-penally (disc11ssi11 g emergence of more sophislica ied technologies for evaluating DNA evidence ). ,r, Slciker and Stcikcr, "l0:111renchmc11t and/or Deslab ili z;1l ion," 238-39. 17 Stcikcr, 'T he American Dea th Penall y from But a cadre of committed lawyers would have made no difference if th e innocents languishing on death row had not been around to be exonerated . Time, as it turns out, is a necessary (but not suffi cient) condition for vindicating claims o f innocence. O n average, exonerations take just over eleven yea rs, and many take substantiall)' 8 longer. 5 In 2015, for example, fi ve death row inmates were exonerated on a finding of actual innocence.>'1 O ne had been on death row just ten years; th e others had been there between nineteen and thirty. 60 Exonera l"i ons take time, and the death penalty's fin ality has played a c riti cal role in providing it. By th e yea r 2000, th e conve rgence of th ese three developments - time, advances in D NA, and the rise o f a speciali zed capital defense bar - led to a number of high profile exonerations, catapulting the iss ue of innocents on death row into th e national spotlight.61 Ill ino is Governor George Ryan declared a m ora torium on executions in his statefo The book Actual Innocence hit the shelves, chronicling th e sagas of the wrongfu ll y convicted and th e reasons th e system had fail ed thern. 63 And m edi [E]rrors that go to guil t or innocence are exceedingly rare in criminal cases, and even more rare in dea th cases. Even if an error occm s, it is most likely to turn u p sooner rather than la ter. Cases where the defendant is exonera ted years after hi s convicti on became the one-arn1 ed man is found and made lo confess are seen only on lelevision 66 By 2000, it was clear that none of th at was true. No one was even claiming it was anymo re. What marked the death penalty discourse were not claims of competence, 6 but confessions of doubt about th e reliability o f capital convictions. 7 lt was the 5 ~ De in determini ng who among the guilty deserves to di e." Kevin Da vis, "Faith and Fisca l Responsibility Cause Many Conservati ves lo Change Their View of the Dea th Pena lty," A111 erica 11 Har Journal, June 1, 20 15 , www.a baj ournal.eomhnagazin chnticlc/foi th _ . . . . , . , , . . on death row was c1e dit th e strength of th e petiti oner s cla im - th at seventeen years I t t . lf l . - I I l t th e Court ias ye o 1tse cru e and unusual punishment. 77 T wo c ecac es a er, _ l . . . . I I I J1 i sti ces Breyer anc consider a so-call ed Lackey claim on th e men ts, a t ioug 1 78 Kennedy have now join ed in th e calls to do so . . I .· ·1· . . . I , nsid erec s1m1 d l lntern alt onall y, however, a number of tnbuna s 1ia ve co f . . . . . ,. ]er a sentence o · c Ia ims, consistentl y holcl mg th at )rolonge cl mca rcera t1 on unc . . ~ 1 l t 1o 11 of basic death constitutes cru el, in human, and degradin g treatment in vJO a I" · l 7'1 "I . b . cl . li ohrly and 111 ec 1a I1 uman ng i ts . 1 iese ru 1mgs 1i ave ro ug 11t mcrease sc ' . attention to th e conditi ons of death row in th e United States, and th at, in turn, has led to a growi ng public awareness of how we house our condemned. T he fa cts are sobering. [n virtu· a 11 y every state, tIi e con d emnecI are p I1y s1·c a 11 y separa. · te· cl from th e res t of · l · · l l ·t - 11 ovecl from th e t h e pnson popu at1 011 and housed on dea th row, an 1so atec urn 1. ei cI ay. -to - d ay ac t1v1t1· · ·es o f tiI e mam· stream m· st1tuti· ·o n. 80 0 n cl ea th row ' each con- dernned priso ner spends at least 22 hours a day, typi ca ll y 23 , within th e confines of a win dowless cell th e size of a standard parking lot space.81 T hey are through f3e~ slots in doo rs, moni tored by ca meras, and spoken to th rough intercorn s. - Most are not all owed contact visits from fami ly or fri encls.83 Dea th row inmates are typi call y allowed an hour or less of exercise each cl ay, and typi ca ll y that takes place in caged exe rcise pens akin to cl og runs.8-f These are th e conditions of long-term solitary confin ement on death row, and th e concl ernnecl are subj ect to its hallmarks - ex treme isolati on and forced idl eness - for agonizingly long peri ods of tim e. 'Th e result is what has now been named "death row synd ro me," a condition more generall y kn own as "isolati on sickn ess ."85 As it turns out, th e absence of signifi cant human interac ti on for extended peri ods of tim e is bad fo r humans. Even a few days of soli ta 1y confinement will cause a shift in EEC pattern s indica ti ve of cerebra l clysfu ncti on,86 and over tim e, the effects are debilitating. Studi es show th at 77 Ibid. 78 Davis v. r\yala, 576 U.S. _ , _ , 135 S. C l. 2187, 2208-09 (1015) (Kennedy, )., co ncurring); Sm ith v. Ari zona, 552 U.S. 985 (2007) (Breyer, J., disse nting from th e denial of certiornri); Fosler v. Florida, 537 U.S. 990 (1999) (Breyer, )., dissenting from the denial of certiorari). 7 '! G lo"ip v. Gro ss, 2765. 8° C ra ig Haney, "Meni al Health bsues in Long-Term Solitary and 'Supcrnia x' Confin entent," Crime 6 Deli 11q ue11cy 49 (1003) : 125; Mara h Stith McLeod, "Docs the Death Penally Requi re Dea th Row? T he Hann of Legislative Sil ence," Ohio State Law foumal 77 (1016), 523. 8 ' Han ey, "iVlental Health ," 127, q 6; Davis v. A)'ala, 2208- 09. 8, Ameri can Civil Li bert ies Uni on, "A Death befo re Dying: So litary Confin ern enl on Dea th Row," AC LU, 4, Jul y 201), www.aclu .org/sites/defauli/ li les/fi cld_cl oeumeni/deaih befo redyin g report.pdf (<1ecesscd January 10, 2016); Han ey, "Meula l Healt h," 126. 83 I \ mcrican C ivil Liberties Uni on, "A Dea th before Dying," 5. s., Ibid. ; Haney, "Menta l Health ," 126. 85r, ',"' 111 erica n C ivil Liberties Union, "A Death before Dying," 5; Hane)', "Mental Health ," 134-37. 8 Stuart G rassian, "Psychi atric l':ffcc ls of So litary Confin ement," 'v\fa shi11g/011 University Journal of Law 6 Po licy 22 (1006): 331. Fo llowing Finality: 'v\lh y Ca/Jital Punishment ls Colla/Jsi11 g under Its Own Weight 41 prolonged soli ta ry confinement causes severe anxiety, hypersensitivity to stimuli, perceptual distortions and hallllcinations, paranoia, insomnia, diffi c ulty with con centrati on and m emory, con fu sed thought processes, and su icida 1 ideations and 8 behavior. 7 T he impact is similar to th at suffered by victims of severe senso ry deprivati on torture techniquesHk and is exacerbated by th e stress of not knowing when executi on will come, if it ever does. Executi on dates that com e and go, and death wa rrants th at are signed and th en stayed, and th en signed and th en stayed again , are an in nate part of li ving on death row.89 For m any condemned inmates, th e conditions are too much to bear. Some go 10 insane.' Som e commit suicide.9 ' And some drop their appeals and volunteer to be 92 executed Just over 10 percent of th e executed are "volunteers" .'» G ranted, concerns about th e conditions of death row are controversial. Some say th e condemned deserve what th ey get.'H Others say the condemned forfe it th eir ri ght to complain when th eir own appeals are th e reason their executions are delayed95 But whatever on e's view as a normative matter, th e torturous conditi ons of long-term confinem ent on death row as a descriptive matter are diffi cult to deny. For those not concern ed about long-term sol itary confinem ent on death row for humane reasons, another reason may have more swa y - cost. Earl y in th e mode rn death penalty era , cost was a reason to support the death penally; surely it cost less to execute murderers than to feed and house th em fo r th e rest of th eir lives 9 6 Today the opposi te is true. Cost has become one of th e m ost potent argum ents aga inst the death penalty, and th e reason is this: capital punishment costs substantiall y more th an li fe imprisonment at every turn.'17 Start with tri al. Constitutional regulation has fundamentall y changed th e nature of capital trials, and with it, capital defense. T'oday, competent capital representa ti on at tri al is m ark ed by extensive in ves ti ga tion, a fo cus on mitiga ti on, th e pervasive use of experts, and moti ons - lots of th em 9 8 Jury selection imposes additional costs too. "7 Ha ney, .. Mental Health ," 12), 130-31, 137. 8 " Ibid . 132. "'1 G loss ip v. C ross, 2765; i\lllerica n C ivil Libert ies Un ion , .. A Dea th before Dying," 9. '1° Haney, "Mental Hea lth ," l+f; Allleric<1n C ivil Liber ti es Uni on, ";\ Deat h before Dying," 6-7. 9 ' Stciker, "The Allle ri ea n Dea th Penalty frolll a Consequentialist· Perspecti ve," 21 5; G lossip v. G ro ss, 2766. 9' G loss ip v. Gross, 2766. •!l Ibid.; A111 erica11 C ivil Liberti es U11i o11 , "A De;1th before Dying," 8. ,,., Davis v. Aya la, 2210 (T ho111as, J.• concurring). 'II T hompso n v. McNeil , 129 S. C t. 1299. 1301 (Thomas, J., concurri11 gJ . 6 '1 Steiker and Stciker, " J ~ 11tr e n c hm c nt a11 d/o r Destabili za ti o11 ," 231; "Capit ;1I Punishment· in Am erica: Revenge Begins to Seem Less Sweet ," '/'h e Eco 11 0111isl, August 30, 2007, www .econo111i st.comh1ode/9719806. 97 Slcikcr and Stcikcr, uCos t mld Cap ital Pu11ish1nc 11 t," 11 8, 139; Stcikcr and Slcikcr, "Entre nch ment a11cl/or Desta bili za tion ," 23 1; "Capit;il P11nish1n ent in America: Revenge Begins to Seem Less Sweet." 98 Stcikcr and Steikcr, "J\ntre11c h11 1ent and/or Destab ili za ti on," 231; Steikcr ;111 d Steiker, "Cost a11cl Capital Pu11ish111 cnt-, " 139-40. - 42 Corinna Barrett Lain ...... n-capital cases, in Vo1r dire m capital cases takes around fi ve times longer th an in no I , defense ca n part so the prosecution ca n "death qua Ji~, " th e jury, and Ill part so tie I . , is th e ...... , 9'1 Then t ie1e ensure 1t 1s open to th e cons1derat1o n of m1t1 ga tmg evid ence. .t 1 cases . . . . 1 . non-cap1 a tn al itself. Capital cases take ove r three tim es longe r to t1y t ian t I c'cle . .. ·, I . - one o c e i because th ey are more compl ex and consist of essentiall y two tI Id s . . , , .. . ' ' ' 100 ' '., f th e tn al p!OCC SS guilt or mnocence, and one to decide life or death. Every step 0 d 99 Steiker and Stciker, "Cost and C 1pit al Pu nisl11 11cn t," i4i. '°" Kozinski and Gall agher, "Death : T he Ulti mate Run-On Se ntence," 12- 13. '°' Steiker a11 d Stciker, "No More T in kering," 404-05; Steiker and Steikcr, "Cost and Capital Punishment"" 143-44. '°' Steiker and Steiker, "Cost ancl Capit T HI NGS GO l NG WRONG LEA D TO ST AT ES LETTI NG GO T he most recent developments of th e m ode rn death penalty era start with a mass ive drop in executions and dea th sentences, each a product of th e accumulated developments disc ussed thus far. 'T'hose declines, along with th e developments th at ca used th em , have in turn undermined every penological justifi ca ti on for capital '°7 Corilllla Barre tt Laill , "T he Virtues of T hi nkin g Snd l," Un iversily o( Mia111i Law Review 67 (2013): 397' 409. ' 0~ Mears, "'S iudy: Slates Can'I Afford Death Penall y"; C loss ip v. Cross, 2776; David Von Drehlc, "T he List l\xeeution: Why the l\rn of Capita l Pu nishment Is End ing," Ti 111e , April 2015, 29. 0 ' " Corinna Barrdt Lai n, "Passive-Aggress ive l\xecuti ve Power," U11iversity o( Maryla11d Law Review 73 (20 13 ): 229; Sieiker ,me! Steiker, "Cost· and C<1 pital Punishment ," 120. 0 " Stcike r 'i ncl Steiker, "Cost and Capit " 3 De;1th Penally lnformaliun Cent er, "l':xeeuliuns by Year," Death Pe1wlty lnfunnal iun Center, 1vww. cl ea tl1pe11a lly i1 1fu.urg/cxeet1liu11s-yea r. " -1 Ibid . '" Ibid. 6 " James C ibso n and Curi1 nta Ba rre ll Lai n, "Deat h Penally Drugs and th e lnlemali o1 1 129 1 0 dea th penalty, exorbitant costs, ' reli ably strong mitiga ting evidence in most 132 eve ry case,' 3' th e avai lability of L\i\/OP as a se ntencing opti on, and th e likelih ood that hard-wo n dea th se ntences wi ll neve r be ca rri ed out.' 33 All but one of th ese - th e ava il ability of LWOP'H - are cascad ing effec ts se t in motion by th e Supreme Court's attempt to regul ate th e dea th penalty to ge t it right, wh ich was itself drive n by th e Court's recognition of th e uniquely consequential fin ality of dea th. T hi s precipitous decline in dea th se ntences and exec uti ons has, in turn , under mined every penological justifi ca ti on oF capital punishment. ln c::i pa citation is no longe r consid ered to be ::i primary purpose oF capital punishment. T he death penalty once ass ured th::it murderers wo uld never h::ive th e opportunity to terrori ze soc iety aga in , but tod::iy we have LWOP for that - and it costs millions less to maintain -"5 Moreover, both public opinion poll s and th e sentences that juries choose in capital ' ~ 1 Ibid. " 5 Ibid. 6 " Ibid . " 7 Ibi d. 8 " Steikcr and Stcikcr, "Entrenchment and/or Destab ili z.a ti on," 240; Steiker and Stciker, "'Capital Punislrn1 en t: f\ Century," 671-72; St eikcr and Stcikcr, "'Cost· and Capital Punishment," 142. ' " 1 Stcikcr, "The American Death Pena lty fro111 a Consequ cntialist Perspect ive" 216-18, 216 1i. 37; Stciker and Steikcr, "En trc11cl11nc 11t and/or Destabili zat ion," 240; Stcikcr and Stciker, "No More Tinkering," 374-75. 0 " Stei ker and Steiker, "Cost all(] Ciipit al Pun ishment. " 'l' Stci kcr and Stc ikcr, "l':ntn:nchment and /or DestDbili za ti on," 232. "' Ibid. 23+ ' H Sec disc nss ion at Stljml not e 11 7. •1-1 Stcikcr and Stei kcr, "r.ntrcnchmrnt <11lll ior Destab ili za ti on," 234. '15 G lossip v. Gross, 2767 (Breye r,)., disse nting). Corinna Barrett Lain cases both suggest th at when give n th e choice, between LWO P and th e unposition of death , th e public prefers LWO P.'36 The de terrence rationale for th e dea th penalty has also largely focl ecl away. The death penalty's de terrent va lue has always been a point of sharp contention,'37 but· never has it been more attenuated th an today, wh en dea th sentences are disa ppear ing and executions take decacl cs to carry out, if carri ed out at all .'38 What Judge Kozin -ki sa id in i995 is even mo re true now: "T o get executed in America th ese cl ays yo u have to be not onl y a truly nasty pe rson but also ve ry, very unlucky."' 39 Only 1 percent of murderers end up on death row, and among those who do, th e chance of being executed any give n yea r is around 2 percent.'-1° Nowadays, th e death penalty's cost is also part of th e m ix; th e ques ti on is not just wheth er th e death penalty deters, but wheth er it deters mo re th an th e myri ad of oth er crime control m easures that th ose millions might buy instead.'-+' That leaves retribution, th e chi ef justifi ca ti on for th e death penalty toclayq2 The idea that th ose who take a life should forfeit th e irs, if only because th ey deserve it, has a certain intuitive appeal; but here aga in , th e prolonged wa it be tween death sentence and execution (if it ever com es) undermines th e moral force of tha t claim. '43 Killing a killer might sa ti sfy th e retributive impulse, but killing a "poster c hild for recl emption,"' -1-1 a kill er whose life decades later is marked by deep remorse, service to others, and religio us cl evotion ,'-15 often lacks th e sa me sense of satisfa ction. T hose executed are rarely !'li e same people th ey were when th ey committed th e crime, draining th e retributive va lue of th e execution while depriving victims' fami li es of th e cold-hearted kill er whose executi on th ey could feel good about (a lth ough som e feel good about it anyway).'46 Moreover, to th e extent "closure" 36 ' Baze v. Recs, 78 (Steve ns, J., concurring). 7 )...... '3 John Donoh ue, "Docs the Deat h Penally Deter Kil lers?," Newsweek, /\ugusl 19, 2015, www .ncwswcck.corn/docs-dcath-pcnalty-dclcr-k illcrs-36416+ For ;1 recent report by the Na ti ona l Research Council of th e Na ti onal Acadcrny of Scie11ccs, Engi11 ccring, ;md Medicine co nclu d ing t·hat research lo ch1lc has no! shown a dcicrrcnl cffed a11 d therefore should not be used to inform judgmcnls about th e dea th pena ll y, see Na lio11al Resea rch Coun cil, "Deterrence and !he Dea th Pc11 ally," Apr il 18, 2012, www. dcathpenal!yi11fo.org/doc umcnls/NatRcsCouncil Dclcrr.pd f. 38 ' G lossip v. Cross, 2768-69, 2770. '3'1 Koz inski fo r victims' fomili es fi gures into th e retributi ve calculus, today's death penalty falters for anoth er reason as well: it revictimi zes victims, pro longing th eir suffering and torm enting th em with th e ups and dovms of multiple executi on el ates and las t minute staysLf7 If th e onl y consequence of th e current administra ti on of capital punishment was to cast its penological justifi ca ti ons into doubt that wo uld be pro bl emati c enough. But as th e dea th penalty has become more ra re, it has also become more capri cious, exacerbating old pro bl ems and crea ting at least one new one. The old pro bl ems incl ude arbitrarin ess in dea th sentencing and execu ti ons,Lf8 rac ial dispariti es in th e impos iti on of cl eath,'-VI and dea th sentences th at say more about th e lawyering th an the crim e. 150 T he new pro bl em is th e inAu ence of loca ti on. Today, th e single bigges t predictor of a dea th sentence is where th e defend ant is tri ed, a reAection 151 of th e dea th-seeking propensiti es of th e local prosecutor. In 20 15, 21 counties - less th an i percent of th e nati on's total - we re responsibl e fo r all of th e nati on's exec uti ons; indeed, fi ve we re responsibl e fo r 40 percent of th ose exec uti ons alone. 152 Li ke race, th e inAu ence of loca ti on in dea th sentencing feeds int o a large r probl em with th e dea th penalty's applica ti on: th e fa ctors that should expl ain th e impos iti on of death don't, and th e facto rs th at shouldn't, do.153 In short, today's dea th penalty is marked by hi gh cos ts and low returns - and th at has led to ca ll s to let it go. In 2009, th e pres tigious Ameri ca n Law Institute rescinded its model penal code on th e dea th penalty, an important development in part because th e provision served as the model fo r eve ry dea th penalty statute in th e modern era , and in part because of th e AL!'s reaso n for doing so : "th e intra ctabl e and structural obstacles to ensuring a minimall y adequate sys tem of capital punish ment. "15+ Conse rva ti ve oppositi on to th e dea th penalty has also grown ove r tim e. Indeed, it has now give n ri se to Conserva ti ves Conce rn ed About th e Dea th Penalty, a nati onal orga ni za ti on whose rati onale for repeal is perh aps bes t ca ptured by th e wo rds of conse rva ti ve co mm entator George \Vill: "There is no bigger gove rnment '-1 7 Glossip v. Gross, 2769; Koz inski an d Ga llagher, "Dea th : The Uililllalc Run -O n Sentence"+ Ronald J. Tra bak and J. Ma rk Lmc, "The l':xcc ulion of Injusti ce: ;\ Cost and Lack-of-Benefit Analys is of th e Death Penalt y," Loyola Louisiana Law Hevieiv 23 (i989): 129-32. '"~ See th e disc uss ion at in frn no tes 167-69. o.i9 Gloss ip v. Gross, 276!; Ia n Millhi se r, ''Killing a Whi te Person Is J\llllosl the O nl y Reason Murd erers l':vcr Receive the Dcc1t h Penalt y," '/ 'hi11 k Progress, Scpl clll bcr 23, 2015, http :// tl1i11 kprogrcss.o rg/j1isti cc/zo15/09h3/370-162 2/i11 11 rcl crers-<1rc-a l11 10s l·-1 1cvcr-excc ul ccl-ii11l css-t l1 cy kill-a-1vl1 i l c-perso i1 /. 0 • ; Gloss ip v. Gross, 2761. '5' Ibid. For an cxccl lci1 t· re port 011 th e issue, sec Fair Pu nish 111c 11 t Project, "J\111crica's Top Fi ve Dead li est· Prosec ut ors: How Ovcrzc;il ous Pcrso1ia liti cs Drive the Death Pcmilty," Jun e 2016, I1 ttp ://fo i rpi m ish 1nc 1i t.org/wp-co n lei1 t/ 11 ploa cls/zo16/06/l 'PP-Top; Rcport _FI Nf\L. pel f. •1° Ibid. ; Nina Totcnberg, "Why Has Hie Deat h Penalty Grown l11 crcas i11 gly Rare?," NP R, Decc111bcr 7, 2015, www. npr.orgho15 /i 2/07/-1 57403638/why-l ias-tl1c-cl ca ll 1-pc11<1 ll y-grow 11 - i n crcasi ngly-ra re . •1 J Glossip v. Gross, 2759-62. •1-1 Stcikcr and Stcikcr, "No More Tinkering," 35+ Corinn a Ba rrett Lain program than th e one that can kill you."155 'T'h e m edia has chimed in as well , alth ough in th e last seve ra l years, its fo c 11 s has shifted from reporting on th e death 1 6 penalty's problems to predi cting its impending dem ise . 5 But talk is c heap. T he stro ngest indica ti on of th e death penalty's encl is th e n11 m ber of states that have ended it. In th e last decade, seven states have abandoned the death pe nalty as th e ul ti mate sancti on: New Yo rk, New Jersey, Illinois, New M exico, Connecti cu t, Maryland, and Delaware.157 O thers have com e close. Attempts to repeal the death penalty in Montana and New H ampshire fai led by a single vo te, and Nebraska's Republican-contro ll ed legislature actu all y passed a 1 8 repeal measure, only to have th e governor lead a charge to bring it back. 5 In all but one of th e states that abolished the death penalty (D elaware), th e cost of capital punishment - and what th e state was getting fo r it - played a substantial part in th e decision to let it go. Tll inois reporte d that it had spent som e 5100 m ill ion on th e death pe nalty in th e ten years prior to aboli ti on, but had no exec11ti ons during th at tirne.159 New York had spent 5170 million, and N ew Jersey S253 million, in th e modern death penalty era, and li ke lllinois, neith er had a single executi on to show fo r it.16° C onnecticut and New M exico had each exec uted one pe rson in th e m odern era , but were paying S3-5 m illi on a year to 1m1 intain their capital punish m en t systems. 161 And Maryland had executed fi ve people during that ti m e, but had 155 Da vis," Faith and Fisca l Responsibility"; Clarence Page, "The Mos! Unli kely Death-Penally C rit ics," Chicago Tribune, April i2 , 2000, hllp://;i rlicl cs .chicagotribunc.comh ooo-04-12/n cws/ 0004120027_ 1_cb1ti1-pe1ta Il y-c ri ti cs-cxec11Iions-dea1l1-pc11<1 l ty- in fon na tion-ccn ler. ' 16 Von Drehl e, "The Las! Exec ution,"; Wolf ;incl Johnso n, "Courts, Sta les Put Death Penalty on r. ire Support"; Lin coln C 1pl estimated its cost of doing so at just over S32 million per execution. 162 Other co nsid erations facto red into th e dec ision-making c~il cu lu s as well - co ncerns about wrongful co nvictions, rac ial bias, and th e intolerabl e conditions of dea th row among th eni. '63 But th e fact that states were ge ttin g little bang for th e buck appears to have been a tipping-point for repeal - an ominous sign for th e dea th penalty's future, particul arl y in low-executing states .' li -1 In add iti on, th e cascading effects of decad es of constituti onal regul ation of th e death penalty have led to another development portending its demise : th e prospect of judicial abolition. In i972, th e Supreme Court in va lidated th e dea th penalty because it was arbitrary and capricious as th en adlll inistered. 165 A sentence of death 66 was like being struck by li ghtning, Justi ce Stewart falllou sly lam ented' - and today that is literall y tru e. In 2016, 20 people were executed; 36 were stru ck by li ghtning.'67 But th e problem th en, as now, was not just arbitrariness; it was also th e mere fact of th e dea th penalty's infrequ ent use. As Justi ce White explain ed in i972, it was a "nea r trui slll" that a punishment "could so seld om be imposed th at it would cease to be a credibl e deterrent or measurably to contribute to any other end of punishment 16 in th e criminal justi ce sys tem. " )) He we nt on to say that "[a / penalty with such negligibl e returns to the State wou ld be patently excessive and cruel and unusual punishment violative of th e Eighth Amendment.'"69 In Justi ce White's mind, this was exac tly what had become of th e death penalty by th e ea rly 1970s; it had come to be "so infrequ ently imposed that th e threat of exec ution [was] to o attenuated to be of substantial se1vice to criminal justi ce." 17° And that was i972. Fast-Forward to 2016. The dramatic decline in death sentences and executions has made th e death penalty even more arb itrary th an it was 40 yea rs ago, plus it has substantially negated th e penologica l justifi ca ti ons that supported th e death penalty in the first pla ce. Ove r the yea rs, va ri ous Suprelll e Court justi ces have bemoaned th e dea th penalty's arbitrarin ess, as well as its failure to produce executions in a manner that wou ld serve its deterrent and retributi ve purposes (th e form er complaint coming Mexico Coaliti on lo Repea l th e Dca lh Pena lty, "Cost-," www.n1me pca l. org/iss ucs/cosl·; Slc ikcr and Slc ikcr, "Cost and Ca pit al Punish1n cnl-," 121- 22. 6 ' ' Ian Simpson, "!\ibryland Becomes Lilcsi· U.S. Stale lo Abo lisl1 Death Penalty," Heulers, May 2, 20 13, www.rcutcrs.com/arl iclc!t1 s- 11 sa-11w ryl;111cl-dcall 1pcnall y- id US BRl~9 +1 0 TQ2 0 1 3 050 2; Slc ikcr and Slcikcr, "Cost am! C<1p ilal P11nisl111 1cnl ," 120; '61 Si1npson, "Maryland ll cco lll cs L1lcst· U.S. Stale"; Deborah Baker, "New Mex ico Hans Dea th Pcmilly," I-I11(fi11glm1 Post, Apri l 18, 2009, www. h11flinglonpos l. co1n/zoo9/03/i 8/new-mcx ico ba1 1s-dcalh -pcn_n_176666.himl. '''·1 Slciker and Stcikcr, "Cosl and Cap it al Punishm ent ," 162. '"; Furman v. Ceorgia, -108 U.S. 238 (1972). 66 ' Ibid. 309-1 0. 6 ' 7 Dc<1lh Penally lnformalion Center, " l ~xcc 11li o n s by Year;" Nationa l v\/ca lh er Service, "U.S. Lightning Dea ths in 2016: 38," www. li ghlningsa fcly. noa;1.gov/fa l;1)ilies.shiml. 1 ') ~ Ftirllltlll V. c;c.: orgi<-1, ) 11. ' '"1 Ibid ., 312. '7" Ibid ., 313. Corinna Barrett Lain from th e left, th e latter from th e ri ght). 171 J311t mos t recently, those co mplaints have conve rged into a constituti onal catch-22. /\s Jus ti ce Breye r put th e point: A death penalty system th at seeks procedural fairn ess a11d rel iability brings with it dela ys that severely agg ra va te th e cru elty of capital punishment and signifi cantl y u11cl er111in e th e rati onal e for i111posing a sentence of death in th e first place . ... I11 this wo rld , or at least in this Nati o11 , we ca n h Fold in th e fa ct th at th e Justi ces now co nsider soc ietal trends - "evolving standards of decency" - in determi ning wheth er a punishment violates th e "c ru el and unusual punishments" clause and one ca n begin to see th e constitu tio nal case for aboliti on.' 73 Tnd eed, lower courts have alrea dy started making it. In 2015, th e Connec ti cut Supreme Court stru ck cl own what was left of th e state's dea th penalty after its 7 legislati ve repea J. ' -f And in 2014, a federal distri ct co urt in California ruled that the state's death penalty was unconstituti onal, in part beca use "th e exec uti on of a dea th sentence is so infrequent, and th e delays proceeding it so extrao rdinary, th at th e dea th penalty is depri ve d of any deterrent or retributi ve effect it might once have had," and in part because in Cali fo rni a, a sentence of dea th amounted to one "no rati onal jury or legislature could ever impose: li fe in prison, with th e re mote possibility of dea th ."'75 Iro nicall y, th e Ninth C irc uit Court of Appeals reversed th e dec ision on procedural gro unds.' 76 The case had come to th e di stri ct court on habeas, and procedural hurdles should have prevented it from ruling on th e merits of th e claim. '77 So there we stand. T'he fin ali ty of th e dea th penally makes th e stakes too high to impose th e punishment with out substantial protecti ons, but th ose protections come with burdens and th ose burdens come with cos ts. Those costs have led to problems (o r at leas t revealed th em), and th ose problems have beget problems of th eir own . Put it all toge th er and yo u get plummeting dea th sentences and executions, along with more costs, more burdens, and more di ssa tisfaction with the dea th penalty's negligibl e return s. States wa lk away, co urts start taking noti ce, and eve n politi cians are not ca mpaigning on support for th e death penalty like th ey once we re. ' 7 ' Stcikcr and Steiker, "Capit;il Punislrnicnt: A Century," 683; John Pau l Stevens, "On the Death Sente nce," New York Review o( Boob, Dccclllbcr 23, 2010, www. nybooks.com/a rti clesho10/12/ 23/dcath-scnlenee/ (last accessed January 10, 2016); G lossi p v. Gross, 276o, 2762, 2770; Callins v. Colli ns, 1130; Stciker and Stcikcr, "No More T inkering," 388-89. '7' G loss ip v. Gross, 2772. '73 G loss ip v. Gross, 2773, 2749. 7 1 ' · State v. Santi ago, 318 Conn. 1, 55-73 (20 15). '75 Jones v. C happell, 1053, 1063. 76 ' Jones v. Davis, 806 F.3cl 538 (2015). '77 Ibi d., ;38-53. l"ollowing Finality 'Why Ca /Jit:al Pu11i sh111e11l Is Colla/Jsing under Its Own Weight 51 The train , it wo uld seem, has left the station - but one can still imagine it getting derailed. A domes ti c terrorism attack (o r other mass murder) mi ght do it; retribution is a value one can tout at any cos t. A Sllpreme Court ruling that· invalidates th e dea th penalty before th e countiy is ready might also be a way to ki ck-s tart renewed enthusiasm for capital pt1nishment. Afte r all , th e death penalty was dying once before; it was ba cklas h in th e wake of th e Court's 1972 decision abolishing th e dea th penalty that led to its reviva l in 1976.'78 Only thi s much is clea r - th e tTajectory we are on now. If we continue on thi s traj ectory, th e American instittltion of capital punishment wi ll , over time, collapse under its own weight. It may take years, it may take decades, and it may be cut short by co urt intervention. But if current trends continue, it is onl y a matter of tim e -and time is so much of what today's dea th penalty is all abollt. Upon reAection, th ere is something stran gely ka rmi c in th e way the death penalty is winding down, an irony in th e fact that capital punishm ent itself is dying a painstakingly slow dea th on pragmatic grounds. ' 7 ~ Corinna Barrell La in , .. F11rn1an F11n damrnlals," Wa shington La w Review 82 (2007) : +6- 55.