OF CRIMINAL LAW Published at the University of Texas School of Law
AMERICAN JOURNAL OF CRIMINAL LAW Published at The University of Texas School of Law
MASS INCARCERATION AND THE DEATH PENALTY SYMPOSIUM ISSUE
ARTICLES
Law and Loss: Notes on the Legal Construction of Pain Meredith Martin Rountree
Texas Ain't Tuscany: How a Truism Might Further Invigorate Contemporary "Cost Arguments" for Death-Penalty Abolition Gretchen Sween
The Death Penalty and Mass Incarceration: Convergences and Divergences Carol S. Steiker & JordanM. Steiker
VOLUME 41 SPRING 2014 NUMBER 2
AMERICAN JOURNAL OF CRIMINAL LAW
Mass Incarceration and the Death Penalty Symposium Issue
VOLUME 41 SPRING 2014 NUMBER 2
I
Published at The University of Texas School of Law
Copyright AMERICAN JOURNAL OF CRIMINAL LAW 2014 AMERICAN JOURNAL OF CRIMINAL LAW
Published at The University of Texas School of Law
VOLUME 41
REBECA OJEDA Editor in Chief
GRACE WITSIL Managing Editor SAMANTHA JARVIS SARA SCHAEFER PATRICK PRICE ChiefArticles Editor Executive Editors TIM EMMONS Editor-at-Large KATHERINE JORDAN JAMIE FELL Chief Manuscript Editor Articles Editor
MAX AFRICK REBECCA MATA-LASKY JAMES BABIKIAN JACK YEH LISA ELIZONDO NEGAD ZAKY CHRISTOPHER LARSON Manuscript Editors Manuscript Editors
Staff
Jenna Al-Malawi Jessica Johnson Michael Redden Michael Borofsky Bryan Jones Poorav Rohatgi Worth Carroll Paul Knowlton Maritza Sanchez AnneMarie Chiarello Deanna Markowitz Theanna Sedlock Ryan Delgado Trevor Melvin Emily Schomburger Elena Esparza Michael Morehead Chris Soper Brad Estes Colleen Mulholland Alethea Anne Swift Julia Gonzalez Will Odum Nafisa Teague Jeffrey Guidry Ryan Pate Sarah Valenzuela Stancell Haigwood Rebecca Piller Russell Welch Johnathan Hinders Ethan Ranis Adam Whiteside Julia Wilson
Jennifer Laurin Paul Goldman Faculty Advisor Business Manager
ii SUBSCRIPTIONS
The American Journal of Criminal Law (ISSN 0092-2315) is published triannually (Winter, Spring, Summer) under license by The University of Texas School of Law Publications, P.O. Box 8670, Austin, Texas 78713. The annual subscription price is $30.00 except as follows: foreign, $35.00; Texas, $32.48. Please make checks payable to the American Journal of Criminal Law. Complete sets and single issues are available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209.
MANUSCRIPTS
The American Journal of Criminal Law is pleased to consider unsolicited manuscripts for publication, but regrets that it cannot return them. One double-spaced, typewritten manuscript should be submitted to the attention of the Chief Articles Editor along with an electronic copy of the article in Microsoft Word format. WordPerfect submissions will not be accepted. Citations should conform to The Bluebook: A Uniform System of Citation (19th ed. 2010). Except when content suggests otherwise, the American Journal of Criminal Law follows the guidelines set forth in the Texas Law Review Manual on Usage, Style & Editing (12th ed. 2011) and the Chicago Manual of Style (15th ed. 2003). The Journal is printed by Joe Christensen, Inc., P.O. Box 81269, Lincoln, Nebraska 68501.
Views expressed in the American Journal of Criminal Law are those of the author and do not necessarily reflect the views of the editors or those of the faculty or administration of The University of Texas at Austin.
Copyright 2014, The University of Texas School of Law Typeset by the American Journal of Criminal Law
Editorial Offices: American Journal of Criminal Law University of Texas School of Law 727 Dean Keeton St., Austin, TX 78705-3299 Email: [email protected] Website: http://www.ajcl.org
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iii THE UNIVERSITY OF TEXAS SCHOOL OF LAW ADMINISTRATIVE OFFICERS
WARD FARNSWORTH, B.A., J.D.; Dean, John Jeffers Research Chair in Law. JOHN B. BECKWORTH; B.A., J.D.; Associate Dean for Administration and Strategic Planning. ROBERT M. CHESNEY, B.S., J.D.; Associate Dean for Academic Affairs, Charles I. Francis Professor in Law. WILLIAM E. FORBATH, A.B., B.A., Ph.D., J.D.; Associate Dean for Research, Lloyd M. Bentsen Chair in Law. EDEN E. HARRINGTON, B.A., J.D.; Associate Dean for ExperientialEducation, Dir. of William Wayne Justice Ctr. for Public Interest Law, Clinical Professor. KIMBERLY L. BIAR, B.B.A.; Assistant Dean for FinancialAffairs, Certified Public Accountant. GREGORY J. SMITH, B.A., J.D.; Assistant Dean for Continuing Legal Education. MARIA M. ARRELLAGA, B.S.; Assistant Dean for Communications. MICHAEL HARVEY, B.A., B.S.; Assistant Dean for Technology. MONICA K. INGRAM, B.A., J.D.; Assistant Dean for Admissions and FinancialAid. TIM KUBATZKY, B.A.; Executive Director ofDevelopment. DAVID A. MONTOYA, B.A., J.D.; Assistant Dean for Career Services. ELIZABETH T. BANGS, B.A., J.D.; Assistant Dean for Student Affairs. FACULTY EMERITI
HANS W. BAADE, A.B., J.D., LL.B., LL.M.; Hugh Lamar Stone Chair Emeritus in Civil Law. RICHARD V. BARNDT, B.S.L., LL.B.; ProfessorEmeritus. WILLIAM W. GIBSON, JR., B.A., LL.B.; Sylvan Lang Professor Emeritus in Law of Trusts. ROBERT W. HAMILTON, A.B., J.D.; Minerva House Drysdale Regents ChairEmeritus. DOUGLAS LAYCOCK, B.A., J.D.; Alice McKean Young Regents Chair Emeritus. J.L. LEBOWITZ, A.B., J.D., LL.M.; Joseph C. Hutcheson Professor Emeritus. JOHN T. RATLIFF, JR., B.A., LL.B.; Ben Gardner Sewell ProfessorEmeritus in Civil Trial Advocacy. JAMES M. TREECE, B.A., J.D., M.A.; Charles . Francis ProfessorEmeritus in Law. PROFESSORS
JEFFREY B. ABRAMSON, B.A., J.D., Ph.D; Professor of Government; Professor of Law. DAVID E. ADELMAN, B.A., Ph.D., J.D.; HarryReasoner Regents Chair in Law. DAVID A. ANDERSON, A.B., J.D.; Fred & Emily Marshall Wulff Centennial Chair in Law. MARK L. ASCHER, B.A., M.A., J.D., LL.M.; Joseph D. Jamail Centennial Chair in Law. RONEN AVRAHAM, M.B.A., LL.B., LL.M., S.J.D.; Thomas Shelton Maxey Professor in Law. LYNN A. BAKER, B.A., B.A., J.D.; FrederickM Baron Chair in Law, Co-Directorof Center on Lawyers, Civil Justice, and the Media. MITCHELL N. BERMAN, A.B., M.A., J.D.; RichardDale Endowed Chair in Law. BARBARA A. BINTLIFF, M.A., J.D.; Joseph C. Hutcheson Professor in Law, Director of Tarlton Law Library & the Jamail Centerfor Legal Research. LYNN E. BLAIS, A.B., J.D.; Leroy G. Denman, Jr. Regents Professor in Real Property Law. ROBERT G. BONE, B.A., J.D.; G. Rollie White Teaching Excellence Chairin Law. OREN BRACHA, LL.B., S.J.D.; Howrey LLP andArnold, White, & Durkee Centennial Professor. DANIEL M. BRINKS, A.B., J.D., Ph.D.; Associate Professor; Co-Director, Bernard andAudre Rapport Center for Human Rights and Justice NORMA CANTU, B.A., J.D.; Professor of Education; Professor of Law LOFTUS C. CARSON, II, B.S., M. Pub. Affrs., M.B.A., J.D.; RonaldD. Krist Professor. MICHAEL J. CHURGIN, A.B., J.D.; Raybourne Thompson Centennial Professor. JANE M. COHEN, B.A., J.D.; Edward Clark Centennial Professor. FRANK B. CROSS, B.A., J.D.; HerbertD. Kelleher Centennial Professor of Business Law. JENS C. DAMMANN, J.D., LL.M., Dr. Jur., J.S.D.; William Stamps Farish Professor in Law. JOHN DEIGH, B.A., M.A., Ph.D.; Professor ofLaw and Philosophy. MECHELE DICKERSON, B.A., J.D.; Arthur L. Moller Chair in Bankruptcy Law and Practice. GEORGE E. DIX, B.A., J.D.; George R. Killam, Jr. Chair of CriminalLaw. JOHN S. DZIENKOWSK, B.B.A., J.D.; Dean John F. Sutton, Jr. Chair in Lawyering and the Legal Process. KAREN L. ENGLE, B.A., J.D.; Minerva House Drysdale Regents Chair in Law, Co-Directorof BernardandAudre Rapoport Center for Human Rights andJustice. JULIUS G. GETMAN, B.A., LL.B., LL.M.; EarlE. Sheffield Regents Chair. JOHN M. GOLDEN, A.B., J.D., Ph.D.; Loomer Family Professorin Law. STEVEN GOODE, B.A., J.D.; W James Kronzer Chair in Trial and Appellate Advocacy, University Distinguished Teaching Professor. LINO A. GRAGLIA, B.A., LL.B.; A. W Walker CentennialChair in Law. CHARLES G. GROAT, B.A., M.S., Ph.D.; Professor. PATRICIA I. HANSEN, A.B., M.P.A., J.D.; J. Waddy Bullion Professor. HENRY T.C. Hu, B.S., M.A., J.D.; Allan Shivers Chair in the Law of Banking and Finance. GARY J. JACOBSOHN, B.A., M.A., J.D.; Professor of Government; Professor of Law. DEREK P. JINKS, B.A., M.A., J.D.; The Marrs McLean Professor in Law. STANLEY M. JOHANSON, B.S., LL.B., LL.M.; James A. Elkins Centennial Chair in Law, University Distinguished Teaching Professor. CALVIN H. JOHNSON, B.A., J.D.; Andrews & Kurth Centennial Professor. SUSAN R. KLEIN, B.A., J.D.; Alice McKean Young Regents Chair in Law. JENNIFER E. LAURIN, B.A., J.D.; Professor. SANFORD V. LEVINSON, A.B., Ph.D., J.D.; W. St. John Garwood & W St. John Garwood, Jr. Centennial Chair in Law, Professor of Government. ANGELA K. LITTWIN, B.A., J.D.; Professor. iv INGA MARKOVITS, LL.M.; "The Friends of Joe Jamail" Regents Chair. RICHARD S. MARKOVITS, B.A., LL.B., Ph.D.; John B. Connally Chair. THOMAS 0. McGARITY, B.A., J.D.; Joe R. & Teresa Lozano Long Endowed Chair in Administrative Law.
LINDA S. MULLENIX, B.A., M. Phil., J.D., Ph.D.; Morris & Rita Atlas Chair in Advocacy. ROBERT J. PERONI, B.S.C., J.D., LL.M.; The Fondren Foundation Centennial Chairfor Faculty Excellence. H. W. PERRY, JR., B.A., M.A., Ph.D.; Associate Professor of Law and Government. LUCAS A. POWE, JR., B.A., J.D.; Anne Green Regents Chair in Law, Professor of Government. WILLIAM C. POWERS, JR., B.A., J.D.; President of The University of Texas at Austin, Hines H. Baker & Thelma Kelley Baker Chair, University Distinguished Teaching Professor. DAVID M. RABBAN, B.A., J.D.; Dahr Jamail, Randall Hage Jamail & Robert Lee Jamail Regents Chair, University Distinguished Teaching Professor. ALAN S. RAU, B.A., LL.B.; Mark G. & Judy G. Yudof Chair in Law. DAVID W. ROBERTSON, B.A., LL.B., LL.M., J.S.D.; W. Page Keeton Chair in Tort Law, University Distinguished Teaching Professor. JOHN A. ROBERTSON, A.B., J.D.; Vinson & Elkins Chair. WILLIAM M. SAGE, A.B., M.D., J.D.; Vice Provost for Health Affairs, James R. Dougherty Chairfor Faculty Excellence. LAWRENCE G. SAGER, B.A., LL.B.; Alice Jane Drysdale Sheffield Regents Chair. JOHN J. SAMPSON, B.B.A., LL.B.; William Benjamin Wynne Professor. CHARLES M. SILVER, B.A., M.A., J.D.; Roy W & Eugenia C. MacDonald Endowed Chair in Civil Procedure, Professor of Government, Co-Director of Center on Lawyers, Civil Justice, and the Media. ERNEST E. SMITH, B.A., LL.B.; Rex G. Baker Centennial Chair in Natural Resources Law. DAVID B. SPENCE, B.A, J.D., M.A., Ph.D.; Professor of Business, Government and Society; Professor of Law. JAMES C. SPINDLER, B.A., M.A., J.D., Ph.D.; The Sylvan Lang Professor. JANE STAPLETON, B.S., Ph.D., LL.B., D.C.L., D. Phil.; Ernest E. Smith Professor. JORDAN M. STEIKER, B.A., J.D.; Judge Robert M Parker Endowed Chair in Law. MICHAEL F. STURLEY, B.A., J.D.; Fannie Coplin Regents Chair. GERALD TORRES, A.B., J.D., LL.M.; Bryant Smith Chair in Law. GREGORY J. VINCENT, B.A., J.D., Ed.D.; Professor, Vice President for Diversity and Community Engagement. WENDY E. WAGNER, B.A., M.E.S., J.D.; Joe A. Worsham Centennial Professor. LOUISE WEINBERG, A.B., J.D., LL.M.; William B. Bates Chairfor the Administration of Justice. OLIN G. WELLBORN, A.B., J.D.; William C. Liedtke, Sr. Professor. JAY L. WESTBROOK, B.A., J.D.; Benno C. Schmidt Chair of Business Law. ABRAHAM L. WICKELGREN, A.B., Ph.D., J.D.; BernardJ. Ward Professor in Law. SEAN H. WILLIAMS, B.A., J.D.; Professor. ZIPPORAH B. WISEMAN, B.A., M.A., LL.B.; Thos. H. Law Centennial Professor. PATRICK WOOLLEY, A.B., J.D.; Beck, Redden & Secrest Professor in Law. ASSISTANT PROFESSORS
MARILYN ARMOUR, B.A., M.S.W., Ph.D. LYNDA E. FROST, B.A., M.Ed., J.D., Ph.D. JOHN C. BUTLER, B.B.A, Ph.D. MIRA GANOR, B.A., M.B.A., LL.B., LL.M., J.S.D. JUSTIN DRIVER, B.A., M.A., M.A., J.D. CHARLES E. GHOLZ, B.S., B.S., Ph.D. ZACHARY S. ELKINS, B.A., M.A., Ph.D. BENJAMIN G. GREGG, B.A., Ph.D., M.A., Ph.D. JOSEPH R. FISHKIN, B.A., M. Phil., D. Phil., J.D. SUSAN C. MORSE, A.B., J.D. CARY C. FRANKLIN, B.A., M.S.T., D. Phil., J.D. MARY RoSE, A.B., M.A., Ph.D.
SENIOR LECTURERS, WRITING LECTURERS, AND CLINICAL PROFESSORS
ALEXANDRA W. ALBRIGHT, B.A., J.D.; Senior Lecturer. LYNDA E. FROST, B.A., M.Ed., J.D., Ph.D.; ClinicalAssociate WILLIAM P. ALLISON, B.A., J.D.; ClinicalProfessor, Director of Professor. Criminal Defense Clinic. AHMED GHAPPOUR, B.A., J.D.; ClinicalInstructor. WILLIAM H. BEARDALL, JR., B.A., J.D.; ClinicalInstructor. MARJORIE I. BACHMAN, B.S., J.D.; ClinicalInstructor. DENISE L. GILMAN, B.A., J.D.; ClinicalProfessor, Co-Director of NATALIA V. BLINKOVA, B.A.; M.A.; J.D.; Lecturer. Immigration Clinic. PHILIP C. BOBBITT, A.B., J.D., Ph.D.; DistinguishedSenior KELLY L. HARAGAN, B.A., J.D.; Lecturer, Director of Lecturer. Environmental Law Clinic. HUGH BRADY, B.A., J.D.; Clinical Professor, Director of BARBARA HINES, B.A., J.D.; ClinicalProfessor, Co-Director of Legislative Lawyering Clinic. Immigration Clinic. KAMELA S. BRIDGES, B.A., B.J., J.D.; Lecturer. HARRISON KELLER, B.A., M.A., Ph.D.; Vice Provost for Higher MARY R. CROUTER, A.B., J.D.; Lecturer, Assistant Director of Education Policy, Senior Lecturer. William Wayne Justice Centerfor Public Interest Law. JEANA A. LUNGWITZ, B.A., J.D.; Clinical Professor, Director of Domestic Violence Clinic. TIFFANY J. DOWLING, B.A., J.D.; ClinicalInstructor, Director of JIM MARCUS, B.A., J.D.;.Clinical Professor Actual Innocence Clinic. TRACY W. MCCORMACK, B.A., J.D.; Lecturer, Director of LORI K. DUKE, B.A., J.D.; Clinical Professor. Advocacy Programs. ARIEL E. DULITZKY, J.D., LL.M.; Clinical Professor, Director of F. SCOTT MCCOWN, B.S., J.D.; Clinical Professor; Director of Human Rights Clinic. Children's Rights Clinic. ELANA S. EINHORN, B.A., J.D.; Lecturer. ROBIN B. MEYER, B.A., M.A., J.D.; Lecturer. TINA V. FERNANDEZ, A.B., J.D.; Lecturer, Director of Pro Bono Program.
V RANJANA NATARAJAN, B.A., J.D.; Clinical Professor, Director of LESLIE L. STRAUCH, B.A., J.D.; Clinical Professor. National Security Clinic. GRETCHEN S. SWEEN, B.A., M.A., Ph.D., J.D.; Lecturer. ELIZA T. PLATTS-MILLS, B.A., J.D.; Clinical Professor. MELINDA E. TAYLOR, B.A., J.D.; Senior Lecturer, Executive JANE A. O'CONNELL, B.A., M.S., J.D.; Lecturer, Deputy Director Director of Centerfor Global Energy, International of Tarlton Law Library Public Services. Arbitration, & Environmental Law. SEAN J. PETRIE, B.A., J.D.; Lecturer. WAYNE SCHIESS, B.A., J.D.; Senior Lecturer, Director of Legal HEATHER K. WAY, B.A., B.J., J.D.; Lecturer, Director of Writing. Community Development Clinic. STACY ROGERS SHARP, B.S., J.D.; Lecturer. ELIZABETH M. YOUNGDALE, B.A., M.L.I.S., J.D.; Lecturer. RAoUL D. SCHONEMANN, B.A., LL.M, J.D.; Clinical Professor PAMELA J. SIGMAN, B.A., J.D.; Adjunct Professor, Director of Juvenile Justice Clinic. DAVID S. SOKOLOw, B.A., M.A., J.D., M.B.A.; Distinguished Senior Lecturer, Director of Student Life.
ADJUNCT PROFESSORS AND OTHER LECTURERS
ELIZABETH AEBERSOLD, B.A., M.S. DAVID HALPERN, B.A., J.D. WILLIAM R. ALLENSWORTH, B.A., J.D. ELIZABETH HALUSKA-RAUSCH, B.A., M.A., M.S., Ph.D. ANDREW W. AUSTIN, B.A., M. Phil., J.D. CLINT A. HARBOUR, B.A., J.D., LL.M. CRAIG D. BALL, B.A., J.D. ROBERT L. HARGETT, B.B.A., J.D. SHARON C. BAXTER, B.S., J.D. MARY L. HARRELL, B.S., J.D. KARL 0. BAYER, B.A., M.S., J.D. CHRISTOPHER S. HARRISON, Ph.D., J.D. JERRY A. BELL, B.A., J.D. WILLIAM M. HART, B.A., J.D. ALLISON H. BENESCH, B.A., M.S.W., J.D. JOHN R. HAYS, JR., B.A., J.D. CRAIG R. BENNETT, B.S., J.D. SUSAN J. HIGHTOWER, B.A., M.A., J.D. JAMES B. BENNETT, B.B.A., J.D. KENNETH E. HOUP, JR., J.D. MURFF F. BLEDSOE, B.A., J.D. RANDY R. HOWRY, B.J., J.D. WILLIAM P. BOWERS, B.B.A., J.D., LL.M. MONTY G. HUMBLE, B.A., J.D. STACY L. BRAININ, B.A., J.D. DIRK M. JORDAN, B.A., J.D. ANTHONY W. BROWN, B.A., J.D. JEFF JURY, B.A., J.D. JAMES E. BROWN, B.A., LL.B. PATRICK O. KEEL, B.A., J.D. TOMMY L. BROYLES, B.A., J.D. DOUGLAS L. KEENE, B.A., M.Ed., Ph.D. PAUL J. BURKA, B.A., LL.B. CHARI L. KELLY, B.A., J.D. W. AMON BURTON, JR., B.A., M.A., LL.B. MARK L. KINCAID, B.B.A., J.D. ERIN G. BUSBY, B.A., J.D. ALICE L. KING, B.A., J.D. AGNES E. CASAS, B.A., J.D. MARGARET A. KIRKENDALL, B.A., J.D. RUBEN V. CASTANEDA, B.A., J.D. MICHAEL R. KRWZSENEK, B.S., J.D. EDWARD A. CAVAZOS, B.A., J.D. AMI L. LARSON, B.A., J.D. LINDA BRAY CHANOW, B.A., J.D. JODI R. LAZAR, B.A., J.D. JEFF CIVINS, A.B., M.S., J.D. KEVIN L. LEAHY, B.A., J.D. ELIZABETH COHEN, B.A., M.S.W., J.D. DAVID P. LEIN, B.A., M.P.A., J.D. KEVIN D. COLLINS, B.A., J.D. ANDRES J. LINETZKY, LL.M. JAMES W. COLLINS, B.S., J.D. JAMES-LLOYD LOFTIS, B.B.A., J.D. DANLEY K. CORNYN, B.A., J.D. ANDREW F. MACRAE, B.J., J.D. KEITH B. DAVIS, B.S., J.D. HARRY S. MARTIN, A.B., M.L.S., J.D. SCOTT D. DEATHERAGE, B.A., J.D. LAURA A. MARTINEZ, B.A., J.D. DICK DEGUERIN, B.A., LL.B. LORI R. MASON, B.A., J.D. ADAM DELL, B.A., J.D. PHILIP K. MAXWELL, B.A., J.D. MELONIE M. DEROSE, B.A., J.D. PETER C. MACCABE, B.A., J.D. RICHARD D. DEUTSCH, B.A., B.A., J.D. ANN M. MCGEEHAN, B.A., J.D. STEVEN K. DEWOLF, B.A., J.D, LL.M. BARRY F. MCNEIL, B.A., J.D. REBECCA H. DIFFEN, B.A., J.D. MARGARET M. MENICUCCI, B.A., J.D. DENNIS B. DRAPKIN, A.B., B.E., LL.M., J.D. Jo A. MERICA, B.A., J.D. PHILIP DURST, B.A., M.A., J.D. RANELLE M. MERONEY, B.A., J.D. BILLIE J. ELLIS, JR., B.A., M.B.A., J.D. ELIZABETH N. MILLER, B.A., J.D. JAY D. ELLWANGER, B.A., J.D. JONATHAN F. MITCHELL, B.A., J.D. LISA R. ESKOW, A.B., J.D. DARYL L. MooRE, B.A., M.L.A., J.D. EDWARD Z. FAIR, B.A., M.S.W., J.D. EDWIN G. MORRIS, B.S., J.D. ROSS FISCHER, B.A., J.D. SARAH J. MUNSON, B.A., J.D. SEAN P. FLAMMER, B.A., J.D. HENRY C. MYERS, B.S., J.D. JOHN C. FLEMING, B.A., J.D. JOHN A. NEAL, B.A., J.D. KYLE K. Fox, B.A., J.D. MANUEL H. NEWBURGER, B.A., J.D. GREGORY D. FREED, B.A., J.D. HOWARD D. NIRKEN, B.A., M.PAff, J.D. RYAN M. GARCIA, B.G.S., J.D. DAVID G. NIX, B.S.E., LL.M., J.D. GRETTA G. GARDNER, B.A., J.D. PATRICK L. O'DANIEL. B.B.A.. J.D.
vi LAURA L. PRATHER, B.BA., J.D. SHERINE E. THOMAS, B.A., J.D. VELVA L. PRICE, B.A., J.D. MICHAEL J. TOMSU, B.A., M.B.A.,J.D. BRIAN C. RIDER, B.A., J.D. TERRY 0. TOTTENHAM, B.S., LL.M., J.D. ROBERT M. ROACH, JR., B.A., J.D. MICHAEL S. TRUESDALE, B.A., M.A., J.D. BETTY E. RODRIGUEZ, B.S.W., J.D. TIMOTHY J. TYLER, B.A., J.D. JAMES D. ROWE, B.A., J.D. SUSAN S. VANCE, B.B.A., J.D. MATTHEW C. RYAN, B.A., J.D. LANA K. VARNEY, B.J., J.D. KAREN R. SAGE, B.A., J.D. DEBORAH M. WAGNER, B.A., M.A., J.D. MARK A. SANTOS, B.A., J.D. CLARK C. WATTS, B.A., M.D., M.A., M.S., J.D. JAMES J. SCHESKE, B.A., J.D. WARE V. WENDELL, A.B., J.D. MICHAEL J. SCHLESS, B.A., J.D. RODERICK E. WETSEL, B.A., J.D. AMY J. SCHUMACHER, B.A., J.D. THEA WHALEN, B.A., J.D. DAVID A. SHEPPARD, B.A., J.D. DARA J. WHITEHEAD, B.A., M.S. HON. ERIC M. SHEPPERD, B.A., J.D. BENJAMIN B. WHITTENBURG, B.B.A., M.P.A., J.D. ARTHUR H. SHERMAN, B.B.A, J.D. RANDALL B. WILHITE, B.B.A., J.D. RONALD J. SIEVERT, B.A., J.D. TIMOTHY A. WILKINS, B.A., M.P.P., J.D. AMBROSIO A. SILVA, B.S., J.D. DAVID G. WILLE, B.S.E.E., M.S.E.E., J.D. HON. BEA A. SMITH, B.A., M.A., J.D. ANDREW M. WILLIAMS, B.A., J.D. LYDIA N. SOLIZ, B.B.A., J.D. MARK B. WILSON, B.A., M.A., J.D. JAMES. M. SPELLINGS, JR., B.S., J.D. CHRISTINA T. WISDOM, B.A., J.D. KACIE L. STARR, B.A., J.D. HON. PAUL L. WOMACK, B.S., J.D. WILLIAM F. STUTTS, B.A., J.D. LUCILLE D. WooD, B.A., J.D. MATTHEW J. SULLIVAN, B.S., J.D. DENNEY L. WRIGHT, B.B.A., J.D., LL.M. JEREMY S. SYLESTINE, B.A., J.D. DANIEL J. YOUNG, B.A., J.D. BRADLEY P. TEMPLE, B.A., J.D.
VISITING PROFESSORS
OWEN L. ANDERSON, B.A., J.D. ANDREW KULL, B.A, B.A., M.A., J.D. ANTONIO H. BENJAMIN, LL.B., LL.M. GRAHAM B. STRONG, B.A., J.D., LL.M. VICTOR FERRERES, J.D., LL.M., J.S.D.
Vii AMERICAN JOURNAL OF CRIMINAL LAW
Published at The University of Texas School of Law
VOLUME 41 SPRING 2014 NUMBER 2
Dedication
The staff of the AMERICAN JOURNAL OF CRIMINAL LAW dedicate Volume Forty-one to Andrew E. Taslitz, a prolific writer, an accomplished professor, and a passionate contributor to the development of criminal law. Professor Taslitz dedicated over twenty years to legal academia. After serving as a Philadelphia prosecutor and working at a public interest firm, he published numerous books and over 100 articles during the course of his lifetime. His work covered a wide range of topics, from improvements to criminal procedure, to the intersection of feminism and evidence law, and, most recently, the role of race in the criminal justice system. The Capital Punishment Center invited Professor Taslitz to speak at a symposium on "Mass Incarceration and the Death Penalty," which was hosted at the University of Texas School of Law from March 22-23, 2013. After participating in the symposium, Professor Tasltiz wrote and submitted an Article based on his recent lecture. The AMERICAN JOURNAL OF CRIMINAL LAW was honored to publish the Article "Racial Threat Versus Racial Empathy in Sentencing Capital and Otherwise" in Volume 41-1. Although he will unfortunately not see this published work, the article will be part of Andrew Taslitz's admirable legacy.
viii AMERICAN JOURNAL OF CRIMINAL LAW
Published at The University of Texas School of Law
VOLUME 41 SPRING 2014 NUMBER 2
Mass Incarceration and the Death Penalty Symposium Issue Articles
Law and Loss: Notes on the Legal Construction of Pain Meredith Martin Rountree...... 133
Texas Ain't Tuscany: How a Truism Might Further Invigorate Contemporary "Cost Arguments" for Death Penalty Abolition Gretchen Sw een ...... 151
The Death Penalty and Mass Incarceration: Convergences and Divergences CarolS. Steiker & Jordan M. Steiker...... 189
ix 4 e5
6
3 Article
Law and Loss: Notes on the Legal Construction of Pain
Meredith Martin Rountree*
Abstract
Empirical research into the effects of mass incarceration reveals that the pains of contemporary imprisonment extend far beyond prison walls. This paper surveys how mass incarceration disrupts individual lives in wide-ranging ways, exacerbating existing social disadvantages, alienating families and neighbors, and further marginalizing the communities to which these individuals belong. While these effects are profound, the toll of mass incarceration is almost as invisible as it is potent, building as it does on existing structures of disadvantage. By contrast, the visibility the law accords victim survivors in death penalty cases exacts its own cost. The American death penalty system combines with broader social dynamics to create a sociologically ambivalent role for victim survivors-one that both offers and constrains opportunities to grieve. This paper suggests the need for further empirical research on ways the law influences how individuals reconcile the multiple demands of grief, mourning, and legal participation, as well as how the individual survivor's social resources may influence his or her use of the law. In both cases, however, we see how the law shapes the experience of loss, both on its own and in conjunction with stigma and other social processes.
I. Mass Incarceration ...... 133 II. The Death Penalty ...... 139 III. C onclusion ...... 148
I. Mass Incarceration
David Garland defines mass incarceration as a phenomenon involving both the dramatic increase in the rate of incarceration and size of
133 134 AM. J. CRIM. L. [Vol. 41:2 the incarcerated population, and the "systematic imprisonment of whole groups of the population." 1 That we currently live in an era of mass incarceration is plain. The size of the American prison population exploded in the late 1970s, increasing the incarceration rate by 342% from 1975 to the end of 2005.2 In addition, the "high level of incarceration [has been] unequally distributed." 3 "[S]tate power," Bruce Western observed in his influential book PUNISHMENT AND INEQUALITY IN AMERICA, "flows along the contours of social inequality," 4 and African-Americans have borne the brunt of the burden. 5 While the good news is that the incarceration trend is flattening, extensive research on the impact of mass incarceration warns of far-reaching consequences for labor prospects, health, family, and communities. 6 Bruce Western found that "[t]he basic brute fact of incarceration in the new era of mass imprisonment is that African Americans are eight times more likely to be incarcerated than whites."7 "[L]arge racial discrepancies in incarceration rates [are such that] black children are actually more likely to have an incarcerated mother than white children are to have an incarceratedfather." 8 Western observed that incarceration rates increased especially dramatically among less educated African-American men:
The Bureau of Justice Statistics reports that in 2004, over 12
* Visiting Assistant Professor, Northwestern University School of Law; Ph.D., University of Texas at Austin; J.D., Georgetown University Law Center; A.B., Yale College. I would like to thank the Capital Punishment Center for inviting me to participate in this symposium, as well as the journal staff for its helpful and gracious editorial contributions. 1. MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 1-2 (David Garland ed., 2001). 2. Robert DeFina & Lance Hannon, The Impact of Mass Incarceration on Poverty, 59 CRIME & DELINQ. 562, 563 (2013); see also Christopher Wildeman & Christopher Muller, Mass Imprisonment and Inequality in Health and Family Life, 8 ANN. REV. LAW. SOC. SCI. 11, 12 (2012) (incarceration rate rose from 1 in 500 American adults in 1973 to 1 in 100 in 2000); David Cole, Turning the Corner on Mass Incarceration?,9 OHIo ST. J. CRIM. L. 27, 28 (2011) (noting the "skyrocket[ing]" increase in the U.S. incarceration rate since the mid-1970s); Robert J. Sampson & Charles Loeffler, Punishment's Place: The Local Concentration of Mass Incarceration, in DAEDALUS 20, 21 (2010) (between 1990 and 1994 alone, the rate of imprisonment increased 60%). 3. BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 30 (2006). 4. Id. at 4. 5. See Cole, supra note 2, at 28-29, 33-34 (noting that a disproportionate number of African Americans are incarcerated). 6. See id. at 27, 35 (noting "incarceration has deep and wide ripple effects on the employment opportunities and likely criminal conduct of not only the incarcerated themselves, but their children and other members of their community"); see also infra text accompanying note 26 (citing authority on the negative impacts of incarceration on the health of prisoners after release). 7. WESTERN, supra note 3, at 3. Western refers here to the years from 1970 to 2003, as this period saw a sevenfold increase in the number of people serving more than a year in custody, as well as substantial increases in the number of people in jail or under supervision. All told, in 2003, about 6% of the adult male population was under some kind of criminal justice control. Id. See also Cole, supra note 2, at 34 (noting that although racial disparities in criminal law enforcement have fallen, "the black male incarceration rate remains more than six times greater than the white male incarceration rate"). 8. Michael Massoglia, Glenn Firebaugh, & Cody Warner, Racial Variation in the Effect of Incarceration on NeighborhoodAttainment, 78 AM. SOC. REv. 142, 143 (2013). 2014] Law and Loss 135
percent of black men aged twenty-five to twenty-nine were behind bars, in prison or jail. Among black men born in the late 1960s who received no more than a high school education, 30 percent had served time in prison by their mid-thirties; 60 percent of high school dropouts had prison records.9
This means that "[b]lack men born in the late 1960s are more likely to go to prison than to finish a four-year [college] degree or serve in the military." 10 Tellingly, as incarceration "became a modal life event for young black men with little education," these men expect to be incarcerated over the course of their lifetimes." This experience of incarceration "divert[s] young men from the life stages that mark a man's gradual inclusion in adult society," profoundly degrading his ability to work, form a family, and participate in community life.12 Incarceration therefore exacerbates existing inequalities, as "the inequality is cumulative, deepening the disadvantage of the most marginal men in society[] and ... transmitting the penalties of a prison record from one generation to the next." 13 These men experience significant labor market disadvantages, and not simply because they have been out of the labor market during the period of their incarceration.14 Pettit and Lyons found that "[i]ncarceration had negative effects on wages for all inmates," even among those who had participated in work-release and other prison programs, indicating that the impact of incarceration on wages is not solely attributable to a loss of skills and time out of the workforce." Instead, these data suggest an "enduring stigma." 16 This stigma combines with race to harm African-Americans with criminal records more than whites with criminal records. Devah Pager's experiment involving employer responses to a white job applicant without a criminal record, a white job applicant with a criminal record, a black job applicant without a criminal record, and a black job applicant with a criminal record found that "even whites with criminal records received more favorable treatment (17%) than blacks without criminal records
9. WESTERN, supra note 3, at 3. 10. Id. at 189. 11. Id. at 24. 12. Id. at 5. 13. Bruce Western & Becky Pettit, Incarceration and Social Inequality, in DAEDALUS 8, 12 (2010). 14. See generally WESTERN, supra note 3, at 108-30 (discussing at length how "[t]he mass incarceration of less-educated minority men concealed declining employment and produced phantom reductions in wage inequality"); see also Becky Pettit & Christopher J. Lyons, Incarceration and the Legitimate Labor Market: Examining Age-Graded Effects on Employment and Wages, 43 LAw & Soc'Y REv. 725, 746 (2009) (recognizing the negative stigma attached to former prisoners attempting to enter the labor market). 15. Pettit & Lyons, supra note 14, at 740, 743 (emphasis in original). 16. Id. at 743 (noting that multiple studies recognize that job applicants with criminal records face a persistent stigma that undermines their labor market opportunities). 136 AM. J. CRIM. L. [Vol. 41:2
(14%)."17 While race clearly played a role in the job applicants' prospects,1 8 the existence of a criminal record mattered, affecting African American applicants more severely than white applicants. 19 "While the ratio of callbacks for nonoffenders [sic] relative to ex-offenders for whites is 2:1, this same ratio for blacks is nearly 3:1. The effect of a criminal record is thus 40% larger for blacks than for whites." 2 0 Pager concluded we cannot attribute poor employment prospects solely to "desolate opportunities or deeply ingrained dispositions, grown out of broken families, poor neighborhoods, and little social control." 21 Instead, "mere contact with the criminal justice system, in the absence of any transformative or selective effects, severely limits subsequent employment opportunities." 22 The economic impact of incarceration on these men's lives is so pervasive that African-American men who have been to prison are less economically mobile than those who score in the bottom quintile of the Armed Forces Qualifying Test, an indicator of very low cognitive capacity.23 Using different data, and recognizing that most of those in prison were likely poor and poorly equipped for the workforce before prison, researchers nonetheless recently concluded that "[m]ass incarceration has played a major role in increasing poverty rates."2 4 A burgeoning area of research also suggests incarceration strongly increases the likelihood of future serious health limitations, and this may contribute to at least some racialized health disparities. 25 Importantly, incarceration itself, rather than the length of time in prison, appears to be
17. Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 958 (2003). 18. Pager's study used white and black college students as "tester" job applicants. The testers were 23-year-old college students from Milwaukee who were matched on the basis of physical appearance and general style of self-presentation. Objective characteristics that were not already identical between pairs-such as educational attainment and work experience-were made similar for the purpose of the applications. Within each team, one auditor was randomly assigned a "criminal record" for the first week; the pair then rotated which member presented himself as the ex-offender for each successive week of employment searches, such that each tester served in the criminal record condition for an equal number of cases. By varying which member of the pair presented himself as having a criminal record, unobserved differences within the pairs of applicants were effectively controlled. No significant differences were found for the outcomes of individual testers or by month of testing. Id. at 947. 19. Id. at959. 20. Id. 21. Id. at 938-39. 22. Id. at 960. 23. Western & Pettit, supra note 13, at 14. 24. DeFina & Hannon, supra note 2, at 581; see also Wildeman & Muller, supra note 2, at 12-15 (discussing the complexity in teasing out impacts of incarceration). 25. See Wildeman & Muller, supra note 2, at 19-20 (citing contradictory findings regarding the strength of the effect of incarceration on racial disparities in severe health limitations, but noting studies suggesting a connection between incarceration and race disparities with respect to HIV/AIDS, infant mortality, and life expectancy at birth). 2014] Law and Loss 137
the significant experience. 26 Incarceration also affects the family with attendant racial disparities. The health of the families of those incarcerated may deteriorate, 2 7 and incarceration can compound family instability. "Over half of all prisoners have children under the age of eighteen, and about 45 percent of those parents were living with their children at the time they were sent to prison." 28 As of 2008, 1.75% of white children, 3.5% of Latino children, and 11% of black children-about 1.2 million-had a parent in prison.29 The children of the incarcerated experience stigma in school (leading teachers to have lower expectations of them), earn lower grade point averages, and have lower educational attainment. 30 They may be more likely to go into foster care, when the mother is incarcerated, and become more physically aggressive. 31 Not only are individual lives diminished by encounters with the criminal justice system, but their communities are as well. As punishment is unequally distributed, it is "distinctly concentrated by place" with "a small number of communities bear[ing] the disproportionate brunt of U.S. crime policy's experiment with mass incarceration." 32 This produces a damaging "mutually reinforcing social process [as] disadvantage and crime work together to drive up the incarceration rate. This combined influence in turn deepens the spatial concentration of disadvantage, even if at the same time it reduces crime through incapacitation." 33 Sampson and Loeffler underscore that "the combination of poverty, unemployment, family disruption, and racial isolation is bound up with high levels of incarceration even when adjusting for the rate of crime that a community experiences. These factors suggest a self-reinforcing cycle that keeps some communities trapped in a negative feedback loop." 34 There are other, more explicitly legal impacts on the community.
26. Jason Schnittker & Andrea John, Enduring Stigma: The Long-Term Effects of Incarceration on Health, 48 J. HEALTH & Soc. BEHAV. 115, 120 (2007); Michael Massoglia, Incarceration, Health, and Racial Disparities in Health, 42 LAw & SOC'Y REV. 275, 285 n.6 (2008); see also Michael Massoglia, Incarceration as Exposure: The Prison, Infectious Disease, and Other Stress-Related Illnesses, 49 J. HEALTH & Soc. BEHAV. 56, 59 (2008) (noting that "even after release, the incarceration experience likely invokes a series of secondary stressors that have negative implications for health functioning"). 27. See Wildeman & Muller, supra note 2, at 20 (noting studies regarding increased risk of cardiovascular disease and poor mental health). 28. Western & Pettit, supra note 13, at 14. 29. Id. at 16. 30. Wildeman & Muller, supra note 2, at 24; see also Western & Pettit, supra note 13, at 15 (noting that "children of incarcerated parents . . . are at [a] greater risk of developmental delays and behavioral problems"). 31. Wildeman & Muller, supra note 2, at 24-25. 32. Sampson & Loeffler, supra note 2, at 20, 22; see also James P. Lynch & William J. Sabol, Assessing the Effects of Mass Incarceration on Informal Social Control in Communities, 3 CRIMINOLOGY & PUB. POL'Y 267, 269-70 (2004) (recognizing that the "expansion of incarceration into society has not been randomly distributed in social and geographic space"). 33. Sampson & Loeffler, supra note 2, at 27; see also Lynch & Sabol, supra note 32 (critiquing research on incarceration and communities). 34. Sampson & Loeffler, supra note 2, at 21. 138 AM. J. CRIM. L. [Vol. 41:2
Felon disenfranchisement laws can curtail its political potency.35 Constant unpleasant (or futile) encounters with law enforcement can breed distrust of and cynicism toward law enforcement and legal institutions. 36 These sentiments increase the likelihood, Kirk and Papachristos found, that disputants in those neighborhoods will resort to violence. 37 Prosecuting drug cases in particular gives rise to a snitch culture that can be toxic to a community. 38 Criminal informants are generally given a pass on their illegal activities in exchange for what they tell police.39 In addition, the pervasive use of informants "erode[s] social mechanisms for keeping the peace [in communities] by creating distrust and inviting retaliation."4 0 Since informants generally have information about only those around them, reliance on informants also intensifies the over-policing common to troubled inner-city neighborhoods. 41 Because informants are not always reliable, "[f]alse accusations, mistaken warrants, erroneous raids, and wrongful convictions associated with snitches will be more frequent in communities in which the practice is prevalent," 42 increasing hostility and feelings of disillusionment toward the police. As pernicious as these effects are, it is also true that they are largely invisible to those who are unaffected, precisely because the effects are so concentrated. 43 In addition, because so much of the incarceration binge was
35. See Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. Soc. REv. 777, 796 (2002) (noting that although "ballot restrictions for felons and ex-felons have had a demonstrable impact on national elections, .. . such impact is even more pronounced in local or district-level elections, such as House, state legislative, and mayoral races"). 36. Rod K. Brunson, "Police Don't Like Black People": African-American Young Men's Accumulated Police Experiences, 6 CRIMINOLOGY & PUB. POL'Y 71, 73 (2007); ALEXANDRA NATAPOFF, SNITCHING 114-16 (2009); David S. Kirk & Andrew V. Papachristos, Cultural Mechanisms and the Persistenceof Neighborhood Violence, 116 AM. J. Soc. 1190, 1199-1202 (2011). 37. Kirk & Papachristos, supra note 36, at 1204, 1228 (theorizing that "[l]egal cynicism constrains choices, making it more likely that individuals will undertake 'extraordinary measures' of self-help," Kirk and Papachristos found that neighborhood rates of homicide are positively associated with legal cynicism). 38. NATAPOFF, supra note 36, at 105-07 (describing drug convictions as "high-snitch arenas" and noting that some criminal justice observers "conclude[d] that drug cases almost always involve snitches"). 39. Id. at 109. 40. Id. at 111; see also Alice Goffman, On the Run: Wanted Men in a Philadelphia Ghetto, 74 AM. Soc. REv. 339, 348-51 (2009) (describing how for men who are potentially wanted by the police, "more intimate relations-friends, family, and romantic partners-may pose a threat and thus have to be avoided or at least carefully navigated"). 41. NATAPOFF, supra note 36, at 113. 42. Id. 43. See, e.g., WESTERN, supra note 3, at 86 ("The underclass is thus defined by its social remoteness, its invisibility, as much as by its deprivation. This remoteness has a physical reality (the poor live separately from the middle class), and a social reality (the everyday routines and experiences of the poor are unlike those of the middle class). . . . The poor are invisible not because they are in desperate straits, but because they are beyond the horizon of middle-class social experience."). See also Cole, supra note 2, at 39 ("The fact that incarceration is concentrated on the most vulnerable segments of our increasingly divided society means that even with the highest incarceration rate in the world, most members of the majority do not know anyone in prison."); Sampson & Loeffler, supra note 2, at 20 2014] Law and Loss 139 fueled by the War on Drugs and an enthusiasm for parole revocations,44 these are fairly abstract offenses. While a community may suffer from the open air drug markets, one rarely sees "the community" in court to articulate the costs of U.S. drug policy and over-policing. This is in part because it is a diffuse injury inflicted on disorganized communities. In addition, mass incarceration requires mass-processing tools that intensify the invisibility and de-individuation of its objects. Judges approve plea agreements 45 in somewhat opaque, sometimes inaudible proceedings that allow the spectator only a technical sense of the crime. In some courtrooms, the defendant has only a disembodied presence, as video appearances become commonplace for certain types of hearings.46
II. The Death Penalty
Death penalty cases could not be more different. Not only are murders (and murders that result in the death penalty) rare and sensational occurrences, 4 7 but these crimes overflow with clear victims. Victims range from the person or persons killed, to any witnesses, to the loved ones of the murder victim. On the murderer's side, victims include the murderer's loved ones, his dependents, and, usually, him at some other point in his life. While the substantial media coverage typically associated with death
(proposing that "spatial inequality in punishment helps explain the widespread invisibility of mass incarceration to the average American"). 44. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 93 (2010); see also Cole, supra note 2, at 36 (noting that "the war on drugs [was] responsible for much of the rise in incarceration," and this war "is increasingly acknowledged to be a failure"); Theodore Caplow & Jonathan Simon, Understanding Prison Policy and Populations Trends, 26 CRIME & JUST. 63, 93-97, 102-109 (1999) (arguing that the War on Drugs and parole revocations contributed significantly to the rapid rise in incarceration). 45. See Adjudication Outcome for Felony Defendants in the 75 Largest Counties, Table 5.57.2006, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE (2006), available at http://www.albany.edu/sourcebook/pdf/t5572006.pdf (recognizing that of individuals charged with a felony and subsequently convicted of a crime, 95.6% resolved their cases through plea agreement to a felony or misdemeanor). 46. Courts Nationwide Hold Hearings with Video, CBS NEW YORK (May 8, 2011), http://newyork.cbslocal.com/2011/05/08/courts-nationwide-hold-hearings-with-video/; Bed Soars: At Flagler County Jail, a Daily "Shell Game" Balancing Risk with Overcrowding, FLAGLERLIVE.COM (Apr. 19, 2012), http://flaglerlive.com/37236/flagler-county-jail/. 47. In 2010, there were 14,748 murders and non-negligent manslaughters, a rate of 4.8 per 100,000 people. Estimated Number and Rate (Per 100,000 Inhabitants) of Offenses Known to Police, Table 3.107.2010, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE (2010), available at http://www.albany.edu/sourcebook/pdf/t31072010.pdf. In 2011, 76 new death sentences were handed down; and in 2012, 80 were handed down. The Death Penalty in 2012: Year End Report, DEATH PENALTY INFORMATION CENTER (2012), available at http://deathpenaltyinfo.org/documents/2012YearEnd.pdf. Even in Texas, not every murder is punished with the death penalty. From July 31, 2007 to July 19, 2013, jurors considered capital murder charges in 254 cases, excluding two cases involving only re-sentencing. Jury Charges and Sentences in Capital Cases, TEXAS OFFICE OF COURT ADMINISTRATION (2014) available at http://www.courts.state.tx.us/oca/jurycharges.asp. Of those, seven defendants were acquitted, and five were convicted of less serious offenses. Id. In only 50 of the remaining 239 capital cases did a jury impose a death sentence. Id. These statistics also exclude capital murder cases resolved through plea agreements to non-death sentences. Id. 140 AM. J. CRIM. L. [Vol. 41:2 penalty cases contributes to the visibility of the trial participants, the law of the death penalty also makes these participants highly visible, and highly individualized. 48 The law individualizes the defendant and victim through different mechanisms. Defense counsel must present a full picture of the defendant's humanity, and the jury must be able to consider this evidence in deciding whether to impose the death penalty. The victim's survivors are allowed to present "victim impact statements" during the sentencing phase of the trial that are "designed to show . . . each victim's uniqueness as an individual human being." 49 The victim impact statement represents just one of the several ways the American criminal justice system has gradually formalized roles for crime victims. It first developed a right to certain financial remedies, and then created a greater role in the prosecution and management of the criminal offender.50 This legalistic response to criminal victimization represents a distinct policy choice.5 ' Victim. survivors are now entitled to notification of court proceedings, attendance at court proceedings, and may contribute their views at different stages of the legal process.5 2 In capital cases, in addition to providing "victim impact statements," victim survivors may witness the offenders' executions.53
48. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) ("the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death"); Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death") (emphasis omitted); Williams v. Taylor, 529 U.S. 362, 395-99 (2000) (counsel failed to "fulfill their obligation to conduct a thorough investigation of the defendant's background," which would have enabled them to present evidence of defendant's nightmarish childhood and intellectual impairment); Abdul-Kabir v. Quarterman, 550 U.S. 233, 263-64 (2007) ("before a jury can undertake the grave task of imposing a death sentence, it must be allowed to consider a defendant's moral culpability and decide whether death is an appropriate punishment for that individual in light of his personal history and characteristics and the circumstances of the offense"). 49. Payne v. Tennessee, 501 U.S. 808, 823 (1991) (emphasis and internal punctuation omitted). See also id. at 825 ("death represents a unique loss to society and in particular to his family"); id. at 837 (Souter, J., dissenting) (Payne overturned previous "blanket prohibition[s] on consideration of evidence of the victim's individuality and consequent harm to survivors."). 50. See James R. Acker & Jeanna Marie Mastrocinque, Causing Death and Sustaining Life: The Law, Capital Punishment, and Criminal Homicide Victims' Survivors, in WOUNDS THAT Do NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 141, 145-46 (James R. Acker & David R. Karp eds., 2006) (discussing the Victims' Rights Movement in which this formalized role for victims developed). 51. See Vanessa Barker, The Politics of Pain: A Political Institutionalist Analysis of-Crime Victims' Moral Protests, 41 LAw & Soc'Y REV. 619, 633 (2007). 52. Acker & Mastrocinque, supra note 50, at 147-49. 53. See, e.g., Execution Procedures 710.04-Designation of Witnesses by Director, ARIZONA DEPARTMENT OF CORRECTIONS, available at http://www.azcorrections.gov/Policies/700/0710.pdf ("The Director shall invite ... [a]ny crime victims and survivors of the crime for which the sentence of death will be imposed .. .. "); Security Execution Procedure, Standard Operating Procedure, STATE OF DELAWARE, DELAWARE CORRECTIONAL CENTER, at Policy 2.7, VI.B.1.i, available at 2014] Law and Loss 141
In addition to these formal mechanisms engaging victim survivors in the criminal case, 54 informal techniques can also make them central figures. One longitudinal study of murder victim survivors found:
With one exception, in Texas participants felt either partnered with or protected by the prosecution who developed close, personal ties with them. Prosecutors visited them in their homes, took them to lunch, made sidebar comments to them during the trial, shared inside information about the criminal justice system, and gave guidance and direction to participants' decisions. 55
This legal institutionalization of the victim's role solidifies an already intertwining survivor's experience. As one victim survivor stated, "One of the sad facts about losing a loved one to murder is that there is both a loss and a crime. It is very easy to get wrapped up in the crime element and not deal with the loss aspect of it[.]"56 The legal framing of the crime victim experience offers opportunities some victim survivors are glad to have. In presenting victim impact evidence, some victim survivors report satisfaction that they "would be able to speak in [their] own voices, and attention would be paid."5 7 Participating in the criminal trial can be an attempt "to reestablish a just world." 58 But as one observer notes, victim survivor participation in death penalty proceedings "both create[s] a new . . . duty . . . and provide[s] a venue in which that duty [can] be satisfied." 59 This identification of a new "duty" points to the multiple different roles-the sociological ambivalence-survivors must struggle to reconcile as they become increasingly enmeshed in the criminal justice system.60 They are "pulled in http://www.doc.delaware.gov/downloads/policies/procedure2-7redact_4.pdf (providing for victim representatives to witness execution); Frequently Asked Questions: Victim Survivors Viewing Executions, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/faq/faq_victim-viewingexecution.html (last visited Apr. 26, 2014) (noting that the victim's family and close friends are given the opportunity to watch the execution); Attorney General Ashcroft's Statement Regarding The Execution Of Timothy McVeigh, UNITED STATES DEPARTMENT OF JUSTICE, http://www.justice.gov/opa/pr/2001/April/169ag.htm (last visited April 12, 2001) ("All witnesses will see Mr. McVeigh on the execution table and they will be able to hear any final statement Mr. McVeigh makes."). 54. See JODY LYNEi MADEIRA, KILLING MCVEIGH: THE DEATH PENALTY AND THE MYTH OF CLOSURE 138 (2012) (quoting President Clinton as expressing support for victims' rights legislation because victims "should be at the center of the criminal justice process, not on the outside looking in"). 55. Marilyn Peterson Armour & Mark S. Umbreit, Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison, 96 MARQ. L. REv. 1, 38 (2012). 56. Linda L. White, A Tiger by the Tail: The Mother of a Murder Victim Grapples with the Death Penalty, in WOUNDS THAT Do NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 49, 65 (James R. Acker & David R. Karp eds., 2006). 57. Charisse Coleman, Matters of Life or Death, in WOUNDS THAT Do NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 17, 22 (James R. Acker & David R. Karp eds., 2006). 58. MADEIRA, supra note 54, at 123. 59. Id. at 124. 60. Robert K. Merton & Elinor Barber, Sociological Ambivalence, in SOCIOLOGICAL 142 AM. J. CRIM. L. [Vol. 41:2 cognitively and emotionally opposed directions as the consequence of conflicting normative expectations, attitudes and behavior incorporated in one or more social statuses assigned to the same person." 61 In other words, victim survivors cannot simply grieve, but are instead thrust into a social role that makes multiple and contradictory demands on them. Sociological ambivalence is an attribute of a social system, and is not simply a psychological state or the experience of conflicting emotions.6 2 Instead, it is "rooted within the social structure," 63 and "built into" the experience of the victim survivor, as it emerges from "the broader social and cultural contexts to which people belong." 64 By merging the victim survivor with the role of legal actor so completely, the law constructs an ambivalent role that both offers and constrains survivors' opportunities and duties to mourn, heal, and embody the community's sense of justice. Losing a loved one to murder inflicts unfathomable pain not only because of the personal loss, but also because that loss implicates a criminal justice apparatus that constrains expressions of grief and some of the material aspects of mourning. One study that focused on families grieving a murder reported:
[P]arents found that opportunities for expressing personal pain and sharing intimate feelings were restricted. Grief was subordinate to justice. Murder must be one of the few causes of death in modern society where the private and diverse reactions of bereaved family members are the subject of such official scrutiny. Opportunities for grieving and negotiating meanings are also restricted by police investigation and the timetabling of coroners' [sic] and criminal courts. . . . [T]he legal significance of murder totally overrides any personal significance which the
AMBIVALENCE AND OTHER ESSAYS 3, 6 (Robert K. Merton ed., 1976) (defining sociological ambivalence as "[i]ncompatible normative expectations of attitudes, beliefs, and behaviors assigned to a status (i.e., a social position) or to a set of statuses in a society."); see Sarah Hillcoat-Nalltamby & Judith E. Phillips, Sociological Ambivalence Revisited, 45 SOC. 202, 202-03 (2011) (discussing sociological ambivalence as "the product of conflicting norms and counter-norms associated with particular social positions"); Robert G. Meadow & Carrie Menkel-Meadow, Personalized or BureaucratizedJustice in Legal Services: Resolving Sociological Ambivalence in the Delivery of Legal Aid for the Poor, 9 LAW & HUM. BEHAV. 397, 400 (1985) (referring to "incompatible expectations of behavior which result from a set of statuses in society"); MEGAN COMFORT, DOING TIME TOGETHER: LOVE AND FAMILY IN THE SHADOW OF THE PRISON 12, 16-17 (2008) (discussing sociological ambivalence among women whose visits with husbands or boyfriends in prison organize the women's routines and social lives in oppressive ways, while also facilitating intimate emotional connection with their partners and stabilizing highly disrupted families). 61. Ewa Morawska, Sociological Ambivalence: The Case of East European Peasan-Immigrant Workers in America, 1880s-1930s, 10 QUAL. Soc. 225, 226 (1987). 62. My focus on sociological ambivalence is not intended to deny the intrapsychic ambivalence of death. See Neil J. Smelser, The Rational and the Ambivalent in the Social Sciences: 1997 Presidential Address, 63 AM. SOC. REV. 1, 7 (1998). Instead I seek simply to highlight the less obvious social construction of the experience of death in capital murder cases. 63. Ingrid Arnet Connidis & Julie Ann McMullin, Sociological Ambivalence and Family Ties: A CriticalPerspective, 64 J. OF MARRIAGE & FAMILY, 558, 563 (2002). 64. Merton & Barber, supra note 60, at 5; Hillcoat-Nalltamby & Phillips, supra note 60, at 202 03. 143 2014] Law and Loss
child held for his or her parents.6 5
While grief is subordinated to the demands of the criminal justice system, the social performance of mourning, 66 perhaps inevitably, enters that same system. Demanding the death penalty can become a way for the survivor to perform a relationship with the victim and to establish the survivor as the protector of the victim and uniquely responsible for ensuring the honor of the victim's memory. 67 Thus, one survivor "pushed on the district attorney saying, 'Don't disrespect my son. This [defendant] needs to die[.]"' 68 Sarah Beth Kaufman's ethnography of capital trials documents how death penalty court processes can become sites of mourning rituals and performances. 69 One survivor explained:
The formality of court proceedings would take the act of speaking to the level of public ritual, participated in and acted out, not only by me, but by friends and witnesses, by people the community regarded as authorities, and by a representation of the 70 community itself-those twelve people sitting in the jury box.
Without an affiliation to a church or the military, this person felt court was the only ritual available, as "imperfect [as] the setup" was. 7 1 While mourning is a social activity, embedding it within the legal process carries a cost. "By turning punishment into a site for the rituals of grieving, . . . not only is a private colonization of public processes encouraged, public scrutiny also invades some of the most personal aspects of our lives-the ways we suffer and grieve."72 This ritual becomes particularly fraught for some precisely because their voices matter. Some express anguish that the chance to pay tribute came at a cost in a zero-sum game. They believe that by telling the jury what a good and important person the victim was, they contributed to a death sentence, an outcome not all wanted. One described her victim impact evidence as "a sort of devil's compact." 73 The pull to testify was
65. Gordon Riches & Pam Dawson, Spoiled Memories: Problems of Grief Resolution in Families Bereaved through Murder, 3 MORTALITY 143, 153 (1998). 66. EMILE DURKHEIM, THE ELEMENTARY FORMS OF RELIGIOUS LIFE 400-01 (trans. Karen E. Fields, 1995) ("Mourning is not the natural response of a private sensibility hurt by a cruel loss. It is an obligation imposed by the group. One laments not simply because one is sad but because one is obligated to lament."). 67. Armour & Umbreit, supra note 55, at 39. 68. Id. 69. Sarah Beth Kaufman, Mourners in the Court: Findings from an Ethnography of Death Penalty Trials, in DEATH WORTHY: AN ETHNOGRAPHY OF AMERICAN DEATH PENALTY TRIALS (unpublished dissertation) (on file with author). 70. Coleman, supra note 57, at 21. 71. Id. 72. AUSTIN SARAT, MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION 122 (2005). 73. Coleman, supra note 57, at 21. 144 AM. J. CRIM. L. [Vol. 41:2 powerful even to someone who did not want a death sentence imposed: "The fact that my desire to bear witness overpowered some of my deepest beliefs about right and wrong only added to the confusion and suffering of being a murdered man's sister." 74 Compounding the anguish was the death penalty opponent's recognition that she obtained some relief from the death verdict: "I couldn't help being gratified by what the jury seemed to say: that what was done to [the murder victim] appalled them-appalled them enough to warrant the strongest response legally available." 7 5 Some survivors not only use the trial as a forum to mourn a terrible loss, but also to advance a meaning of the criminal trial beyond its function as an impartial tribunal.
These legal proceedings, and the preparation for them, are the critical justice juncture for survivors. Their attendance allows them to stand in for the victim and to bear witness to justice. Besides scrutinizing the defendant's persona and conduct, survivors' very presence, though silent, is the fulfillment of their duty to hold the defendant personally accountable for his monstrous act and their incalculable suffering. Though bystanders to the main event, their real or mental relationships with the prosecution and defense teams, as well as giving [victim impact statements], gives them preferential access to and membership in this publically historic event. 76
The trial, Jody Lyned Madeira writes, can become a "site of memory work"-a place to "recogniz[e], respect[], and resolv[e] victims' emotional needs . . . through physical presence and participation at legal proceedings." 77 For these survivors, integrating emotion into the proceedings was central to securing what they defined as justice. Without emotion, justice would become "an impoverished concept that was only 'for' the defendant and not bombing victims." 78 The survivors, therefore, are uniquely privileged participants in the proceedings. This privilege enables, but can also require them literally to embody justice. It makes them personally responsible for holding the defendant accountable for his crime. The responsibility for embodying justice places demands beyond trial. Media stories of these executions generally seek out only those personally or professionally invested-the police, the lawyers, and the survivors-and not the people in whose name the execution is carried out. Some victim survivors report a pressure to "represent" their community, to give cues about how the community should respond, and to bear the burden
74. Id. at 22. 75. Id. at 30. 76. Armour & Umbreit, supra note 55, at 37. 77. MADEIRA, supra note 54, at 135. 78. Id. 2014] Law and Loss 145 of interpreting the event to their community. One survivor explained his family was "expected to keep [their] sense of injury and rage whipped into a constant call for retribution. . . as if the only decent way to honor loss is to take another life." 79 This responsibility to represent the community's interest in punishment could explain why some survivors feel protracted appeals revictimize them. They cannot "finally go on with [their] lives" until the condemned is executed. 80 Two researchers expressed concern that "the extensiveness of the [death penalty] appeals may have stymied participants' ability to remove the murderer from their thoughts, and impacted the potential for further anger against the murderer caused by feeling victimized by additional and, in some participants' minds, 'unnecessary' legal processes." 81 As the State obtains the death penalty verdict and its need for the victim survivors subsides, the survivors' ignorance of the legal procedures and their marginalization from an appellate process that does not use what the survivors provide exacerbates their sense of suspended animation.82 In addition, where funerals have traditionally marked the "limit on the period of immediate mourning," extending death rituals into the legal system extends this period of public mourning without the socially integrative effect of a funeral. 83 Simultaneously, these survivors are caught within other powerful social forces, namely the stigma of death, particularly violent death, and belief in a just world.84
79. Coleman, supra note 57, at 19. 80. White, supra note 56, at 65; see Shane Wagner, The Death Sentence: For Criminals or Victims?, in WOUNDS THAT Do NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 69, 81 (James R. Acker and & David R. Karp , eds., 2006) (reporting "some relief in knowing that ... they did not have to think about the appeals process" because the defendant had been executed); id. at 77 (describing the "emotional roller coaster" of appeals and stays of execution); id at 81 ("[D]eath penalty cases are more burdensome on victims' loved ones than other criminal cases" because of "years of appeals and the constant possibility of a commutation"); see also Stanley Rosenbluth & Phyllis Rosenbluth, Accidental Death is Fate, Murder is Pure Evil, in WOUNDS THAT Do NOT BIND: VICTIM BASED PERSPECTIVES ON THE DEATH PENALTY 103, 106 (James R. Acker and & David R. Karp , eds., 2006) ("The accused often seek many, many appeals while the victim's family just relives and relives the horror of the crime."); id. at 107 (describing being "imprisoned" during legal process, and concluding that only after "appeals, appeals, and appeals" does "'acceptance' or 'finality' begin to settle in"). See, e.g., Armour & Umbreit, supra note 55, at 54 (noting how the lengthy appeals process can imprison the victim's family). 81. White, supra note 56, at 67. 82. Id. at 55 ("Participants . .. tended to agonize over how long the process took and having limited to no communication about the legal proceedings. In some instances, they voiced fear and a reluctance to contact officials about the length of time or what was happening in the process. This ambivalence over knowing was accompanied by comments about not being sure what was believable or who[m] to believe."). 83. Vanderlyn R. Pine, Death, Loss and Disenfranchised Grief, in DISENFRANCHISED GRIEF: RECOGNIZING HIDDEN SORROW 18-19 (Kenneth J. Doka ed., 1989). 84. The theory of a "belief in a just world" emerged from research finding that: [W]hen presented with a victim who suffered through little fault of her own (i.e., an innocent victim), people compensated the victim if they believed they could effectively do so. Thus, under these conditions, people appeared to react with a 146 AM. J. CRIM. L. [Vol. 41:2
Family members . . . felt marked. "I felt I had a big M on my forehead for Murder." They also felt typed as bad luck families. A daughter explained, "There has to be a reason why somebody gets murdered. Either they are in a bad neighborhood, they are involved in a drug deal, they are a different color than me, or they are poor and lazy. There has to be a reason why it can't ... happen to ... me." 85
One survivor also complained that the American fixation on the bright side of things produced a "pressure to eradicate any strong feelings as quickly as possible" and the survivor felt "leaned on ... to hurry up and get better."8 6
Family members rationalized the disappearance of their families and friends. "They all disappeared because they couldn't handle it." "They may be afraid to bring up his name because of the tears." While these explanations made sense of the abandonment, they also reminded family members that they were alone and should not look to family and friends for what they needed. 87
This leaves survivors shouldering the responsibility for expressing the community's outrage at its loss at the very time the community isolates itself from the survivor. 88
recognition of the unfairness of the situation and were motivated to respond with compassion. However, when presented with the same victim, along with the expectation that the victim may continue to suffer, people derogated the victim's character, describing her in relatively more negative terms. The authors .. . proposed that people need to believe that the world is a just place in which individuals get what they deserve. . . . [W]hen the notion of a just world is threatened by contrary evidence, like the innocent victim in Lerner and Simmons's experiment, people may engage in a variety of behaviors that help to maintain a sense of justice. These behaviors range from helping or compensating the victim to psychological rationalization of the victim's fate-for example, perceiving the victim's fate as deserved (and, therefore, less unfair) because of her unworthy character. Carolyn L. Hafer & Laurent Bbgue, Experimental Research on Just-World Theory: Problems, Developments, and Future Challenges, 131 PSYCHOLOGICAL BULL. 128, 128-29 (2005) (discussing just-world belief research); see also Marilyn Armour, Journey of Family Members of Homicide Victims: A Qualitative Study of Their Posthomicide Experience, 72 AM. J. ORTHOPSYCHIATRY 372, 372-73 (2002) (summarizing post-homicide studies that indicate "the stigma attached to murder" often causes victim survivors to blame themselves for the loved one's death); Riches & Dawson, supra note 65, at 149 (noting that stigma of violent death can be exacerbated through involvement in the criminal justice system); Heidi M. Zinzow et al., Losing a Loved One to Homicide: Prevalence and Mental Health Correlates in a National Sample of Young Adults, 22 J. TRAUMATIC STRESS 20, 20 (2009) (same). 85. Armour, supra note 84, at 376. 86. Coleman, supra note 57, at 20 (emphasis in original). 87. Armour, supra note 84, at 375. 88. Margaret Vandiver, The Impact of the Death Penalty on the Families of Homicide Victims and of Condemned Prisoners, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION 617 (James R. Acker, Robert M. Bohm, & Charles S. Lanier, eds., 2003) ("The experience of isolation is very common-at the time they most need contact and support, families often feel the most isolated. The opposite situation of intrusion is often a problem as well, with unwelcome contacts from the criminal justice system, the media, and 2014] Law and Loss 147
With victim survivors, not only do we see law responding to victims by providing mechanisms of compensation and participation, but the legal intervention is framed as a matter of "rights." 89 Critiques of this "rights discourse" raise the concern that articulating victim survivors' needs through the language of rights may further isolate them. Talk of rights can "encourage[] a politics based on selfish individualism," "discourage[] the communitarian and egalitarian values that the rights advocates often want to pursue," and create solutions that rely on State action.9 0 While some have argued that rights talk itself can "help to develop community around shared interpretations" of what those rights mean, rights talk may be more effective in building particularistic communities. 91 Furthermore, rights discourse does not necessarily generate solidarity between the victim survivors and their own communities, although it may foster solidarity among crime victims themselves. 92 Others criticize rights discourse for enmeshing victim survivors in litigation over the conduct of the criminal trial, which can take its own toll.93 While the law contributes to the sociological ambivalence of the victim survivor, it also decreases the pull of one of the competing norms by "convert[ing] ambivalent feelings into univalent preferences in a range of ways." 94 Sarah Beth Kaufman described how victim impact testimony "organizes and exacerbates the antagonism" between victim survivors and courtroom actors such as defense counsel. 95 Others have noted that the victim survivors' rights movement positions the rights of the victim survivors as antithetical to those of the offenders, 96 a framework some
curiosity seekers."). See Armour, supra note 84, at 374-77 (describing victims' experience of abandonment and isolation from family and social institutions, while also recognizing in some circumstances it fostered solidarity); Marilyn Armour, Violent Death: Understanding the Context of Traumatic and Stigmatized Grief, 14 J. OF HUM. BEHAV. IN THE SOC. ENVIRON. 53, 70 (2007) ("The public response to the murder has emerged as the most troublesome issue for homicide survivors.... The lack of support from community institutions and friends and family erodes their efforts to cope. Without a legitimizing social context, they feel marginalized and marked as an object lesson about what can go wrong in a person's life."); Riches & Dawson, supra note 65, at 149 (recounting one survivor's experience of the unwillingness of others to discuss her loss). 89. Crime victim oriented laws and legislation are commonly referred to as "Victim Bills of Rights." Crime Victims' Rights, OFFICE FOR VICTIMS OF CRIME, http://www.ovc.gov/rights/legislation.html (last visited Apr. 14, 2014). 90. Neal Milner, The Denigration of Rights and the Persistence of Rights Talk: A Cultural Portrait, 14 L. & SOC. INQUIRY 631, 638 (1989). 91. Id. at635. 92. By contrast, the non-legal solidarity of a support group of similar survivors can offer significant relief, at least for some. Armour, supra note 84, at 376; see also MADEIRA, supra note 54, at 63-94 (describing the benefits ofjoining a support group of similar survivors). 93. MADEIRA, supra note 54, at 122. 94. Smelser, supra note 62, at 11 (discussing the role of social structure and process in relation to intrapsychic ambivalence). 95. Kaufman, supra note 69. 96. Id.; see also Barker, supra note 51, at 643 (noting that "the Victims' Bill of Rights ... granted crime victims new rights . . . but these rights were interlinked with the retraction of the rights and liberties of criminal offenders"). 148 AM. J. CRIM. L. [Vol. 41:2
survivors struggle against. 97 Craig Haney catalogued the capital processes that contribute to creating the capital defendant as fundamentally "other" through a variety of mechanisms of moral disengagement and dehumanizing techniques. 98 These may help reduce ambivalence, but at a cost to the authenticity of the survivor's testimony and experience. It is also worth asking how legal, community, and personal resources shape survivors' responses to the ambivalence created by the legal system. Megan Comfort's ethnography of wives and girlfriends of prisoners noted that women with greater social and economic resources more easily maintained their free-world identity than those without those resources. 99 Social location and resources, such as a strong affiliation with another institution, such as a church, or with a distinct cultural community, could affect the survivors' need for, and use of, the legal system. At the same time, as victims in death penalty cases are more likely to be white and of higher social status, 100 their survivors' superior social privilege may contribute to greater confidence in navigating and being present in the criminal justice system.
III. Conclusion
Mass incarceration, even if we are past its peak, has become another engine of inequality as it diminishes the economic, social, and health possibilities of those most affected. The law can reinforce or alleviate the economic burden of a criminal record by restricting the kinds of work ex-prisoners can do, restricting potential employers from asking whether the job applicant has been imprisoned, and any of several other practices. 101 We may be best served, however, by simply making law less present in the lives of the incarcerated by decreasing the incidence and length of incarceration for drug offenses and parole violations. Better yet, we could replace law with social resources that address underlying causes of marginalization.
97. White, supra note 56, at 56. 98. CRAIG HANEY, DEATH BY DESIGN: CAPITAL PUNISHMENT AS A SOCIAL PSYCHOLOGICAL SYSTEM 141-61 (2005). 99. COMFORT, supra note 60, at 183. 100. Scott Phillips, Status Disparities in the Capital of Capital Punishment, 43 LAW & SOC'Y REV. 807, 808 (2009). 101. JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 105 37 (2003) (identifying legal barriers to work, housing, voting, public assistance, and family formation); see also Darren Wheelock, Christopher Uggen, & Heather Hlavka, Employment Restrictions for Individuals with Felons Status and Racial Inequality in the Labor Market, in GLOBAL PERSPECTIVES ON RE-ENTRY 278, 299 (Ikponwosa Ekunwe & Richard S Jones eds., 2011), available at http://epublications.marquette.edu/cgi/viewcontent.cgi?article=1044&context=socsfac (providing the example of a white male convicted of drug conspiracy and equipped with an MBA who cannot obtain a job after disclosing on job applications that he has a criminal history); Jessica S. Henry & James B. Jacobs, Ban the Box to Promote Ex-Offender Employment, 6 CRIMINOLOGY & PUB. POL'Y 755, 758 (2007) (noting that cities such as Chicago have begun to reform "how city agencies consider a job applicant's criminal record"). 2014] Law and Loss 149
In the context of the death penalty, law may perpetuate social privilege where it intensifies disadvantage in the context of mass incarceration. Law increased its presence in the lives of survivors at their behest, as survivors enlisted court processes and a discourse of rights to meet emotional needs and advance their vision of justice. Unlike those swept up in America's recent experiment with mass incarceration, less law is not necessarily what survivors want or need. However, it is essential to recognize that more law represents a costly policy decision for victim survivors. This highly visible, privileged relationship to the law increases rather than reduces the conflicts inherent in their sociologically ambivalent role. 1
4 9 Article
Texas Ain't Tuscany: How a Truism Might Further Invigorate Contemporary "Cost Arguments" for Death-Penalty Abolition
Gretchen Sween*
In all negotiations of difficulty, a man may not look to sow and reap at once, but must prepare business, and so ripen it by degrees. 1
I. Introduction ...... 15 1 II. Eighteenth-Century Tuscany: Where Rational Arguments for Abolition First Bore Fruit ...... 153 III. Twenty-First Century United States: Where a New Cost Argument has Been Grafted onto Beccarian Root Stock ...... 159 IV. Texas: Where Rational Arguments Against the Death Penalty Are Non-Adaptive...... 162 V. The Supreme Court: Where Texas-Style Arguments for the Death Penalty Go to Die...... 172 VI. Conclusion ...... 186
I. Introduction
Tuscany and Texas both start with the letter "T." And Tuscany shares some topographical features with the Texas Hill Country, such that
* Gretchen Sween is an adjunct professor at The University of Texas School of Law, a member of the Board of the Texas Defender Service, and an attorney in private practice. She thanks the participants in the symposium for their inspiration and the members of the journal's editorial staff for their hard work and support. 1. Francis Bacon, On Negotiation, in BACON'S ESSAYS 413 (Richard Whately ed., 1856). This same quotation was an epigram to'the third edition of Cesare Beccaria's influential 18th century treatise ON CRIMES AND PUNISHMENT.
151 152 AM. J. CRIM. L. [Vol. 41:2
vineyards and olive trees grow in both places, although they flourish more readily in the former. There the similarities seem to end. For this article, the key difference between these two places is their relationship to the death penalty. Tuscany abolished the death penalty at an early date; Texas, on the other hand, continues to earn international notoriety as the biggest killing state in the United States-and thus in the Western world. By drilling down into the differences between these two venues, I propose that instead of waiting around for the "standards of decency" in Texas to evolve (i.e., until the cows come home), Texas's contemporary posture with respect to the death penalty may prove a positive stimulus for the only actors in a position to effect wholesale abolition in this country. My argument assumes the following premises: * Changing most people's minds about the death penalty's moral efficacy is virtually impossible because humankind's primal desire for revenge, which is always in tension with its (only slightly) more evolved desire for community, is essentially hard-wired, emotional, and reactionary. " Reason-based arguments about the death penalty should be pursued in hopes of persuading those (1) who are persuadable and (2) who occupy positions of power sufficient to effect real change-i.e., elite policy-makers. 2 " "Elites" are those who have the luxury, in terms of time and training, to make momentous policy decisions-about the legitimate means at the State's disposal for punishing crime-in a contemplative manner consciously detached from the instinctive, vengeful emotions that virtually all human beings feel when presented with the details of, and fallout from, heinous crimes. " Decisions about whether to have a death penalty and, if so, how to implement it are reason-based arguments that presuppose the rule of law and thus are decisions made by elites (even in a democracy). " Elites are more likely to make momentous policy decisions at odds with popular consensus (and human instinct) if these elites believe that doing so will accrue to the benefit of the institution with which they feel most closely aligned. These general premises are borne out by the circumstances that led to the death penalty's abolition in eighteenth-century Tuscany. Therefore, this article begins there. The reason-based argument for abolition that resonated in Tuscany can be summarized as follows: the death penalty costs too much and yields meager dividends. 3 The reason-based rationale for
2. This premise is derived from Andrew Hammel's thesis that elites are the ones who can and have historically taken the lead in abolishing the death penalty. See ANDREW HAMMEL, ENDING THE DEATH PENALTY: THE EUROPEAN EXPERIENCE IN GLOBAL PERSPECTIVE 7 (2010) (describing the forces that led modem Europe to abolish the death penalty). 3. PAUL FRIEDLAND, SEEING JUSTICE DONE: THE AGE OF SPECTACULAR CAPITAL PUNISHMENT IN 2014] Texas Ain't Tuscany 153
abolition resonating today in the United States makes the same basic points and is reinforced by a literal cost argument. The cost arguments persuading state legislators across the United States have, however, fallen flat in Texas, the execution capital of Western civilization. Because Texas leads the way in executions, abolition is not possible unless Texas is made to stand down. But elites with power in Texas resist abolishing the death penalty because it provides elites with a powerful political tool from which they can reap tremendous benefits despite the considerable costs to the state. Texas, therefore, can only be made to stand down by elites operating outside of the state. Yet the very prospect that outside elites may try to dictate to Texas any kind of policy-and certainly criminal justice policy-is a fear stoked by a contingent of elites within Texas as a means to maintain their power. In short, the challenge is great. Even so, there are reasons to believe that Texas's affinity for the death penalty can be harnessed to help convince the Supreme Court of the United States to act towards wholesale abolition. I contend that the Supreme Court, the only elites in our federalist system in a position to eliminate the death penalty completely, are more likely to take on Texas if they see Texas as a threat to their own institutional integrity. Carol and Jordan Steiker, leading scholars of the American death penalty, have aptly described the Supreme Court's incremental, but notable, movement toward abolition during the past decade. 4 This article suggests a way to capitalize on this momentum by honing in on Texas's remarkable losing streak in recent death-penalty cases before the Supreme Court and by identifying rhetorical strategies that, while powerful, have failed to resonate with the particular elites to whom they have been addressed, thereby making Texas an unlikely ally in death penalty abolition.
II. Eighteenth-Century Tuscany: Where Rational Arguments for Abolition First Bore Fruit
The death penalty was abolished in Tuscany in 1786, and the region never looked back. 5 Except that, in 2000, the region looked back to
FRANCE 206 (2012). 4. Carol Steiker, Things Fall Apart, But the Center Holds: The Supreme Court and the Death Penalty, 77 N.Y.U. L. REV. 1475 (2002); Carol Steiker & Jordan Steiker, Opening a Window and Building a Wall-The Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly, 11 U. PA. J. CONST. L. 155 (2008-2009). 5. Italy did not abolish the death penalty nationwide until after World War II when it drafted a new constitution. Art. 27 Cost. (It.). Unlike other hotbeds of liberalism-such as contemporary Massachusetts-Tuscany never toyed with reinstating the death penalty after its abolition was effected nearly 230 years ago. See Carol Steiker & Jordan Steiker, The Beginning of the End, in THE ROAD TO ABOLITION? THE FUTURE OF CAPITAL PUNISHMENT IN THE UNITED STATES 101 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009) [hereinafter The Beginning of the End] (describing Massachusetts' flirtation with death-penalty reinstatement in 1997 after the state experienced a particularly gruesome crime, the sexual assault and murder of a ten-year-old boy). 154 AM. J. CRIM. L. [Vol. 41:2
celebrate, proudly launching La Festa della Toscana to promote the concepts of "international peace, justice and liberty." 6 The date chosen for the festival, November 30, was the same as the day in 1786 when a law promulgated by an elite-the Grand Duke Peter Leopold di Lorena abolished Tuscany's death penalty with a mere stroke of his autocratic pen. 7 The law also banned torture and mutilation, which Leopold saw as being of a piece with the death penalty, all instruments of barbarism. 8 Peter Leopold's legislative decree made Tuscany the first state in the world to take this bold step-for good. The Grand Duke, a member of the Hapsburg dynasty who reigned over the duchy after the last Medicis, was inspired to take this unilateral action after reading a treatise by Cesare Beccaria, a relatively obscure Enlightenment thinker from Tuscany. Beccaria's On Crimes and Punishments9 was first published anonymously in 1764, when Beccaria was in his twenties. After hammering out his ideas with a group of friends who, like him, were highly educated nobles, Beccaria applied the humanistic, Enlightenment values promulgated by Locke and Rousseau to the criminal justice system, concluding that a rational approach to crime and punishment could not include the death penalty.1 0 While Beccaria proposes reforming the entirety of the criminal law, abolishing capital punishment plays a central role in his theory that the State's integrity depends on criminal punishments being rational. Beccaria argues that the State is not endowed with the power to dole out any more punishment than necessary to try to prevent a particular crime. Ultimately, he concludes that the death penalty has no utility and, in fact, only imposes costs on the State due to the punishment's excessiveness and vengeful character. The chapter "On the Death Penalty" provides a lucid roadmap for most contemporary arguments for abolishing the penalty: " The State killing as a means to send a message that killing is execrable is self-contradictory. The "calm rule of law,"" which is the basis for state-sanctioned punishment in the name of deterrence, is at odds with the bestial impulse to kill, "an example of cruelty""
6. George Ferzoco, Letter to the Editor, Death Penalty Ban, GUARDIAN, Nov. 17, 2007, at 35, available at http://www.theguardian.com/news/2007/nov/20/leadersandreply.mainsection. 7. HAMMEL, supra note 2, at 163. 8. See Helen Borowitz & Albert Borowitz, Pictures and Punishment: Art and Criminal Prosecution During the Florentine Renaissance, 45 MD. L. REV. 1066, 1070 (1986) (book review) (discussing how the duke's reading of Beccaria played a role in his decision to ban torture). 9. CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (David Young trans., 1986) (1764). 10. Neither Locke nor Rousseau advocated abolishing the death penalty. See, e.g., JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT & DISCOURSES 31 (G.D.H. Cole trans., J.M. Dent & Sons 1920) (1763); JOHN LOCKE, TWO TREATISES OF.GOVERNMENT 189 (London, Whitmore & Fenn 1721). 11. BECCARIA, supra note 9, at 52. 12. Id. at55. 2014] Texas Ain't Tuscany 155
that can have only a demoralizing effect on the State.13 On one hand, executions harm public morality in that they are "spectacles" that appeal to the prurient interests of some; on the other hand, the spectacle sparks in others "compassion" for the condemned "mixed with indignation" for the authorities responsible for the criminal's ultimate suffering. 14 But neither result ennobles the State. " Executions fail to instill respect for the State; instead, this harsh, irrevocable penalty suggests tyranny. The poor recognize that much crime arises from more fundamental injustices such as hunger. From the perspective of the poor, state-sponsored killing does nothing to remedy the root causes of crime and so does not endear the poor to the State.15 " Executions do not deter the commission of crime-otherwise crime would already have vanished from the earth (for instance, execution in Beccaria's day had long been the default punishment human societies had chosen for many crimes). 16 Deterrence is not accomplished through a punishment's severity but through its length. Hard labor, therefore, is a far better solution and less likely to attract those who out of "fanaticism" or "vanity" 17 might pursue public martyrdom at the hands of the State. Some who are inclined
13. Id. at 50 (stating "it seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder they order a public one"). Likewise, Beccaria wonders how the State can reasonably assume the authority to take individual lives when the State forbids suicide. Id. 14. Id. at 53. This complicated argument arose from the public nature of executions at that time. See RICHARD C. TREXLER, PUBLIC LIFE IN RENAISSANCE FLORENCE 488 (1991) (describing the practice of public executions). On one hand, the spectacle exposed a vulgar attraction to the horror that did not help the cause of those contending that the death penalty is a dignified enterprise that can edify the public by scaring them straight. On the other hand, Beccaria was aware that executions were just as likely to engender compassion for the condemned among the spectators, and compassion is not only an emotional reaction at odds with the concept of the death penalty as a sober tool of the State to right wrongs and deter future wrongs, but also one that disinclines individuals to feel allegiance with the State. Contemporary historians of the death penalty have explained how mob riots in the wake of grisly executions often "threatened rather than reinforced state power" and thus aided abolitionists' efforts in the nineteenth and early-twentieth century. LARRY W. KOCH ET AL., THE DEATH OF THE AMERICAN DEATH PENALTY: STATES STILL LEADING THE WAY 166 (2012). 15. Beccaria makes this point by putting himself in the mind of a typical thief who posits: "Who made these laws? Rich and powerful men who have never deigned to visit the squalid hovels of the poor, who have never broken mouldy bread amid the innocent cries of hungry children and a wife's tears. Let me break these ties, which are harmful to the majority and useful only to a few and to indolent tyrants; let us attack injustice at its source." BECCARIA, supra note 9, at 55. 16. For example, the Babylonian Code of Hammurabi, the oldest extant legal code, prescribed the death penalty for twenty-five different offenses, none of which were murder. CODE OF HAMMURABI (ca. 1772 BCE), reprinted in 1 SOURCES OF ANCIENT AND PRIMITIVE LAW 387-442 (Albert Kocourek & John H. Wigmore eds., 1915). Similarly, the English "Bloody Code," enacted three millennia later, required the death penalty for over two hundred offenses by the end of the eighteenth century. Steven A. Hatfield, Criminal Punishment in America: From the Colonial to the Modern Era, 1 U.S.A.F. ACAD. J. LEGAL STUD. 139, 140 (1990). 17. BECCARIA, supra note 9, at 50. 156 AM.J.CRIM.L. [Vol. 41:2
to kill are motivated by fanaticism or vengeance; thus, they may well relish the idea of a public death for themselves. 18 In other words, those most likely to commit a heinous act like murder are not going to be deterred by the prospect of their own death at the hands of the State. " Victims are not made whole by state-sponsored killing. A better way to compensate the victims of homicide than another death is to give them something tangible, like money. " The death penalty cannot be justified simply because every human society has had a death penalty. Human history contains "a vast sea of errors, in which a few widely scattered truths are floating" about with large and distant gaps between them.1 9 In short, the argument that "it has always been" is unsound. Principle should trump."blind habit," which is why the decision-makers must be "benevolent monarchs" who "love peaceful virtue, the sciences and the arts" and who steel themselves against the "cries" of the masses.20 Most of Beccaria's points should sound familiar to anyone conversant with contemporary death-penalty polemics. Notably, though, he does not make a classic "dignity of man" argument. His position is grounded entirely in rationalism, not emotional appeals regarding moral imperatives. 21
18. This component of Beccaria's argument seems to presage a contemporary awareness that most who commit senseless, heinous crimes do not do so as a result of some reasoned decision-making process that involved weighing the costs and benefits of their actions in terms that would resonate with some general consensus about reasonable risks and rewards. Instead, most heinous crimes are committed by persons afflicted with severe mental illnesses, mental impairments, and/or horrendous backgrounds so that their impulsive actions are not likely to be curbed by the remote possibility that a violent act may result in a state-mandated execution years later. See MICHAEL L. PERLIN, MENTAL DISABILITY AND THE DEATH PENALTY: THE SHAME OF THE STATES (2013); JOHN WESTIN PARRY, MENTAL DISABILITY, VIOLENCE, AND FUTURE DANGEROUSNESS: MYTHS BEHIND THE PRESUMPTION OF GUILT (2013). 19. BECCARIA, supra note 9, at 52. 20. Id. at 52-53. 21. The quintessential "modern" abolitionist, among the first to treat the death-penalty issue "as a stand-alone topic," was Victor Hugo. HAMMEL, supra note 2, at 128. Hugo believed that "legalistic eloquence"-meaning, refinements obtained through more nuanced legal rule-making-effectively masks the fact that state-sanctioned killing is an instance of "man's inhumanity to man." KATHRYN M. GROSSMAN, THE EARLY NOVELS OF VICTOR HUGO 123 (1986). For Hugo, civilization itself-our capacity to evolve-depended in part on abolishing the death penalty. Id. at 122. Hugo also identified the fear and anguish associated with waiting to be executed as the worst part of the punishment from the condemned's perspective. See id. at 137. Litigants and Supreme Court jurists alike have similarly suggested that languishing on death row amounts to cruel and unusual punishment. HAMMEL, supra note 2, at 128-29. See also Valle v. Florida, 132 S. Ct. 1, 1 (2011) (Breyer, J., dissenting) ("I have little doubt about ... the commonsense conclusion that 33 years in prison under threat of execution is cruel."); In re Medley, 134 U.S. 160, 172 (1890) ("[W]hen a prisoner sentenced by a court to death is confined in the penitentiary awaiting ... execution ... one of the most horrible feelings to which he can be subjected ... is the uncertainty during the whole of it....") Hugo's other primary contribution to penological discourse is the understanding of the role narrative can and must play in changing sensibilities by inducing empathy. In seemingly contradictory terms, he believed that the choice to 2014] Texas Ain't Tuscany 157
Beccaria's reason-based analysis was calibrated to appeal to his audience. He was not writing for most of his compatriots. 2 2 He was writing for European nobles, consisting of "benevolent monarchs" who, like would be philosopher-kings, felt compelled to make a reasoned choice to do the right thing despite tradition and public preference. 23 Indeed, the ruling elites competed to provide patronage to the likes of Beccaria. 24 Those rulers were persuadable because they cared about being seen as aligned with Enlightenment values, and they were in a position to effect real change because they were not burdened with institutions like representative democracy and a federalist system of bifurcated government. 25 His book's success demonstrates that Beccaria's arguments resonated with the elites of his day. It was an immediate publishing sensation. The arguments inspired Enlightenment thinkers like Thomas Jefferson 26 and Voltaire, 27 as well as contemporary criminal justice abolish the death penalty could not be left to the will of the people. See VICTOR HUGO, THE LAST DAY OF A CONDEMNED MAN (1829). This seeming contradiction can be resolved, however, if one considers how narrative arguments work. They involve providing the reader or listener with a specific point of view and triggering an empathetic response as a result. See generally ANNETTE SIMMONS, THE STORY FACTOR: SECRETS OF INFLUENCE FROM THE ART OF STORYTELLING (2001). Narratives work best when they are highly particularized, not general bromides. Stories about specific people who were horribly abused throughout the life that culminated in a particular crime, about people who became mentally unhinged, about people who were wrongly accused and railroaded by a prosecutor blinded by prejudice or hubris, about people who have had demonstrable transformations during their years in prison such that they can hardly be viewed as the same person who was initially sentenced to death, about a person who received such abysmal representation during a cursory judicial proceeding that it offends our sense of fair play-these stories can resonate and create a public outcry. See, e.g., SISTER HELEN PREJEAN, DEAD MAN WALKING: THE EYEWITNESS ACCOUNT OF THE DEATH PENALTY THAT SPARKED A NATIONAL DEBATE (1994). But this emotional capacity is the same reservoir that can be (and is) tapped in the wake of peculiarly dramatic and horrific crimes that prompt people to cry for vengeance. See, e.g., Trip Gabriel & Steven Yaccino, Officials, Citing Miscarriages, Weigh Death Penalty in Ohio Case, N.Y. TIMES, May 9, 2013, at A21 (describing the possibility of capital punishment in the infamous Ariel Castro case). 22. No evidence suggests that Beccaria had any influence on the great mass of largely illiterate members of his own community, let alone hoi polloi elsewhere in the Western world, where public executions were common, popular events. See STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 25 (2002) (recounting the popularity of public executions in colonial America); LOUIS P. MASUR, RITES OF EXECUTION: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AMERICAN CULTURE, 1776-1865 94-95 (1989) (noting that the first private execution in the United States only took place in 1834). 23. Hammel describes Beccaria as belonging to a "privileged class of Enlightenment thinkers and reformers who traveled from court to court advising rulers who were eager to rule according to the principles of benevolent despotism." HAMMEL, supra note 2, at 58. 24. For instance, Empress Catherine of Russia and the Hapsburgs vied for Beccaria's advisory services. Id. at 58-59. 25. As Carol and Jordan Steiker explain, the U.S.'s "commitment to federalism, especially in the area of criminal justice-[is what] . .. most precludes the European path of legislative abolition." The Beginning of the End, supra note 5, at 100. 26. Beccaria's work inspired Jefferson to limit the death penalty's role in a 1778 draft of "Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital." By 1821, Jefferson wrote that Beccaria had "satisfied the reasonable world of the unrightfulness and inefficiency of the punishment of crimes by death." MASUR, supra note 22, at 53-54. 27. Inspired by Beccaria, Voltaire took up the idea that murderers should have to pay the victim's 158 AM. J. CRIM. L. [Vol. 41:2
reformers worldwide. 28 Despite the apparent gulf between the United States and all other Western democracies today, during the Enlightenment, Beccaria's treatise was quickly translated into English, widely read in both northern and southern American cities,2 9 and was hugely influential on several of the United States' founding fathers. 30 The book also sparked controversy. The Venetian Inquisition banned it, perhaps as a result of one monk's emotional counter-attack in 3 which he reputedly described Beccaria's polemic as "socialist." 1 The book was placed on the Roman Inquisition's 1766 Index of ProhibitedBooks. 3 2 The objections from these quarters can perhaps be attributed to the fact that Beccaria's thesis hinged on the concept of natural limits on sovereign power, a concept at odds with traditional notions of "might makes right" and the divine right of kings (and popes). That is, not all elites took kindly to a concept that threatened some of the elites' own power. But eighteenth century European culture was such that many elites were inclined to perspectives that may have seemed counter to their short-term self-interest because they genuinely believed it was rational to serve the interests of humanity at-large. Admittedly, Beccaria's great influence on Enlightenment rulers and thinkers did not spur immediate abolition of the death penalty anywhere except his native Tuscany. 33 Instead, his treatise inspired incremental reforms that continue into the present-such as transforming the death penalty from a public spectacle to a private, controlled event, and curtailing the availability of the death penalty-until European elites succeeded in abolishing the death penalty entirely. 34 Beccaria's name receded into
survivors and perhaps work off the crime as a slave in lieu of death. HAMMEL, supra note 2, at 19-20 (citing VOLTAIRE, PRIX DE LA JUSTICE ET LA HUMANITE 6-8 (1779)). 28. Richard J. Evans contends that Beccaria's treatise "remained the most influential tract on penal policy well into the second half of the nineteenth century." R.J. EVANS, RITUALS OF RETRIBUTION: CAPITAL PUNISHMENT IN GERMANY 1600-1987 127 (Oxford Univ. Press 1996). 29. As Masur reports, the first English-language edition of On Crimes and Punishments was published in London in 1767, just three years after it was first printed in Italian. MASUR, supra note 22. Editions were advertised in New York by 1773, published in Charleston in 1777, and published in Philadelphia in 1778. The treatise was serialized in many papers and listed in most American catalogues of books for sale by the 1780s, suggesting widespread interest among the literati. Id. 30. See John D. Bessler, Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, and the Abolition Movement, 4 NW J.L. & SOC. POL'Y 195, 199 (2009) (citing ADOLPH CASO, WE, THE PEOPLE: FORMATIVE DOCUMENTS OF AMERICA'S DEMOCRACY 266 (1995)). 31. Alessandro Verri & Pietro Verri, Response to a Writing Entitled 'Notes and Observations on the Book On Crimes and Punishments' in ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 611 (2008). 32. BECCARIA, supra note 9, at xxiii. 33. HAMMEL, supranote 2, at 55. Germany did not abolish the death penalty until 1949, followed by Great Britain in 1969 and France in 1981. Id. However, Beccaria's writings helped spark the abolitionist movements in these countries, which worked to effect gradual bans on torture and increasingly narrow applications of the death penalty. Id. at 55-60. 34. See People v. Brady, 236 P.3d 312, 345 (Cal. 2010) (noting the universal abolition of the death penalty in Western Europe). 2014] Texas Ain't Tuscany 159
relative obscurity, but his argument-that the death penalty was not worth its costs-has been embraced by elites, including those who took immediate action in Beccaria's homeland of Tuscany.35 That development was, and remains, a symbol of the region's enlightened sensibilities.
III. Twenty-First Century United States: Where a New Cost Argument has Been Grafted onto Beccarian Root Stock
Lately, Beccaria has resurfaced, garnering considerable attention from contemporary death penalty scholars 36 who recognize that Beccaria provided "the first coherent, comprehensive and sustained argument against the state's right to kill." 37 Today, variants of Beccaria's reason-based cost argument have emerged and are shaping the debate about the death penalty's ultimate demise in the United States. One variation focuses on the moral costs, where the risk that the State will execute innocent people remains despite all of the checks supposedly provided by the constitutionalization of the penalty during the decades since Furman v. Georgia.38 The "risk of executing the innocent" argument has gained considerable traction due to the remarkable work of organizations like the Innocence Project, whose efforts exposing wrongful convictions relying heavily on DNA evidence routinely receive significant press coverage. 39 Another variation on the cost argument focuses on the expense of capital trials and the ensuing appeals, as well as the cost of confining death-row
35. See Laurence A. Grayer, A Paradox: Death Penalty Flourishes in U.S. While Declining Worldwide, 23 DENY. J. INT'L L. & POL'Y 555, 557 (1995) (noting the swift adoption of Beccaria's ideas in Tuscany). 36. See, e.g., Bessler, supra note 30; see also Timothy V. Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 YALE L.J. 681, 685 (2001) (observing that "the last new argument against the death penalty may have been made by Cesare di Beccaria, in 1764"). 37. HAMMEL, supra note 2, at 7. 38. Furman v. Georgia, 408 U.S. 238 (1972). Furman, a profoundly fractured decision, resulted in a temporary moratorium on executions in this country when actual executions were already on the decline. Backlash following Furman prompted many states to revisit the death penalty. See generally Carol S. Steiker & Jordan M. Steiker, Cost and Capital Punishment: A New Consideration Transforms an Old Debate, 2010 U. CHI. LEGAL F. 117 (2010) [hereinafter Cost and Capital Punishment] (describing Supreme Court capital punishment jurisprudence). Post-Furman statutes have been the subject of decades of litigation, consuming a significant portion of the Supreme Court's docket. Id. The Court has produced decisions cabining off when and how states may seek the death penalty and crafting numerous procedural safeguards purportedly ensuring that only "the worst of the worst" receive this most severe penalty-and only after being afforded due process and individualized sentencing that weighs aggravating against mitigating factors. Id. 39. The Innocence Project has been particularly successful in shaping public opinion of the death penalty's flaws. See The Beginning of the End, supra note 5, at 115-16, 138 n.124 (discussing how the Innocence Project's handling of the Anthony Porter case drew national attention to capital punishment reform). In Illinois alone, thirteen wrongful convictions were exposed, leading Republican governor George Ryan to impose a moratorium in 2000. Editorial, The Demon of Error, IRISH TIMES, Jan. 15, 2003, at 15. This development was not lost on members of the Supreme Court. See, e.g., Kansas v. Marsh, 548 U.S. 163, 208-10 (2006) (Souter, J., dissenting) (recounting the pervasive errors uncovered such that multiple people on death row in Illinois and elsewhere had been exonerated). 160 AM. J. CRIM. L. [Vol. 41:2
inmates in high-security penitentiaries. 40 Even law enforcement personnel have begun to cite these literal costs as the central reason to abandon the death penalty. For instance, in a 2012 referendum effort in California where voters were asked to repeal the death penalty, many individuals on the prosecutorial side joined abolitionists in noting just how many millions of dollars California. stood to save if the death penalty were repealed. 4 Although the measure failed, those same arguments have been resonating elsewhere as a number of states have recently passed repeal statutes or are debating such measures. 42 Even a new conservative group, "Conservatives Concerned About the Death Penalty," has emerged to emphasize economic costs as a reason to reject the death penalty. 43 The group's leaders note that the death penalty costs more than a life sentence, and yet does not seem to deter crime.44 Texas native Richard A. Viguerie, whom some describe as the "Funding Father" of the conservative movement, supports the new group and has framed the argument in terms that might prove palatable to many on both ends of the current American political spectrum. 45 That argument is that the death penalty is just another government program, and since the government cannot be trusted to do anything well, a "system marked by inefficiency, inequity, and inaccuracy" should be abandoned. 46 The ascendency of the "economic-costs" argument may seem surprising since the American criminal justice system rests on two diametrically different premises, both of which implicitly eschew cost concerns. First, there is the conservative notion that certain ills are so
40. See generally Cost and Capital Punishment, supra note 38, at 117 (discussing the expense of these measures). See also KOCH ET AL., supra note 14, at 156 (same). 41. Mary Slosson, CaliforniansAsked to End Death Penalty-to Save Money, CHI. TRIB., Oct. 26, 2012, http://articles.chicagotribune.com/2012-10-26/news/sns-rt-us-usa-california deathpenaltybre89p06c-20121025_1_death-penalty-california-executions-death-row. 42. See, e.g., Ian Urbina, In Push to End Death Penalty, Some States Cite Cost-Cutting, N.Y. TIMES, Feb. 25, 2009, at Al (reporting on the recent repeal of death penalty statutes in Maryland and New Mexico). 43. The group debuted at the March 2013 CPAC conference in Washington, D.C. See Conservatives Concerned About the Death Penalty to Debut at CPAC, CONSERVATIVES CONCERNED ABOUT THE DEATH PENALTY (Mar. 12, 2013), http://conservativesconcerned.org/press-release-ccatdp at-cpac/. 44. The group has also noted evidence demonstrating the unfair application of the death penalty. Id. 45. On the website, Richard Viguerie is quoted as saying: Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice. But here the end result is the end of someone's life. In other words, it's a government system that kills people. Conservatives Concerned About the Death Penalty National Supporters, CONSERVATIVES CONCERNED ABOUT THE DEATH PENALTY (2013), http://conservativesconcerned.org/what-conservatives-are-saying/. 46. About Us, CONSERVATIVES CONCERNED ABOUT THE DEATH PENALTY (2013), http://conservativesconcerned.org/who-we-are/. 2014] Texas Ain't Tuscany 161
heinous that a secure society requires that those who perpetrate them must be punished with a loss of liberty; therefore, the State should shoulder whatever costs are necessary to ensure that a sufficient deprivation of liberty occurs. 47 Second, there is the countervailing liberal notion that depriving someone of liberty is the most extreme thing a State can do; therefore, harsh criminal sanctions should not be permitted unless the person has been found guilty beyond a reasonable doubt through a public process reflecting due process and equal protection under the law; therefore, the State should shoulder whatever costs are necessary to ensure sufficient and equal process. The ascendancy of the economic-costs argument may be understandable since the United States is among the most unapologetically capitalist societies in the world. Money-making and spending it-matters a great deal to Americans generally. And virtually every American understands on some level that the way money is spent is a vote about what matters in our culture. Most citizens understand that budgets-particularly in times of economic instability, strained finances, and ballooning public debt-are a zero-sum game: money spent on the military, for instance, is money not spent on health care. Particularly astute citizens have recognized that, because budgets reflect what we value, budgets are a kind of "moral document." 48 All the resources that state and federal governments spend litigating capital cases and incarcerating death-sentenced inmates in extreme isolation are resources not spent on other things. And some Americans-who are essentially pragmatists-are starting to balk when confronted with the death penalty's precise costs. 49 Perhaps this recent development belatedly validates Thurgood Marshall's hypothesis, which posits that a properly "informed citizenry" could not support the death penalty. 50 But even
47. Proponents of capital punishment have argued that the death penalty is worth its costs because it deters crime. Yet this argument is stymied by a lack of supporting empirical evidence. See, e.g., Michael L. Radelet & Tracu L. Lacock, Do Executions Lower Homicide Rate?: The Views of Leading Criminologists, 99 J. CRIM. L. & CRIMINOLOGY 489 (1990) (criticizing the empirical foundations of the deterrence argument). Moreover, murder rates remain highest in the states that have retained the death penalty. KOCH ET AL., supra note 14, at 156. 48. "A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death." Sister Helen Prejean, Address at the University of Texas School of Law (October 11, 2012) (citing Dr. Martin Luther King, Jr., "Beyond Vietnam: A Time to Break Silence" Address at Riverside Church in New York City (April 4, 1967)). 49. See DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/costs-death penalty (noting each death penalty case costs Texas taxpayers $2.3 million). 50. See Furman v. Georgia, 408 U.S. 238, 362 (1972) (Marshall, J., dissenting) ("[T]he question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available. This is not to suggest that with respect to this test of unconstitutionality people are required to act rationally; they are not. With respect to this judgment, a violation of the Eighth Amendment is totally dependent on the predictable subjective, emotional reactions of informed citizens."). 162 AM. J. CRIM. L. [Vol. 41:2
accepting the conservative premise that the only truly just punishment for the worst crimes is death, for many that ideal loses some luster when the economics of the death penalty are viewed through a purely rational lens.51 Certainly, for the first time in decades, numbers of conservatives now seem willing to concede that economic concerns should trump their idealism about the death penalty's legitimacy. But wait! Texas is a conservative bastion by most objective measures. Yet the state continues to spend enormous sums executing what may be a large number of people relative to other states but is still a handful compared to its general population.5 2 Since at least 1997, the public has had constructive notice that each execution costs Texas taxpayers about three times as much as incarcerating someone for life.5 3 Yet Texas has been willing to spend those sums even as many of its citizens' basic needs-healthcare, education, better job opportunities-go unmet. Why is Texas peculiarly resistant to the latest variation on Beccaria's cost argument for abolition such that, most agree, it will likely be the last execution-state standing?54
IV. Texas: Where Rational Arguments Against the Death Penalty Are Non Adaptive
The let-the-marketplace-decide model is quite popular in Texas, and leading politicians like to argue that the low-tax, low-regulation, part time government model explains Texas's robust economy. 5 5 Because of Texas's pronounced commitment to a relatively unbridled marketplace, one might think it would find pragmatic economic arguments for death-penalty abolition appealing. Yet Texas is a death-penalty state where the economic
51. As the conservative hero William F. Buckley, Jr. once quipped in a different context, "Idealism is fine, but as it approaches reality, the costs become prohibitive." JONATHON GREEN, THE CYNIC'S LEXICON: A DICTIONARY OF AMORAL ADVICE 34 (1984). 52. Texas not only leads the country in executions, but also has the largest prison system in the world-yet Texas is only fifteenth in spending on indigent defense. ROBERT PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA'S PRISON EMPIRE 4 (2010). 53. See Richard C. Dieter, Millions Misspent: What Politicians Don't Say about the High Costs of the Death Penalty, in THE DEATH PENALTY IN AMERICA: CURRENT CONTROVERSIES 402 (Hugo Adam Bedau ed., 1997) (discussing how the heightened costs of capital punishment have been extensively documented in numerous studies); see also DEATH PENALTY INFORMATION CENTER, supra note 49. 54. See, e.g., Adam Liptak, At 60% Of Total, Texas Is Bucking Execution Trend, N.Y. TIMES (Dec. 26, 2007), http://www.nytimes.com/2007/12/26/us/26death.html?pagewanted=all ("The day is not far off when essentially all executions in the United States will take place in Texas."). 55. See, e.g., Ross Ramsey, ForLow Taxes, It All Depends on the Business, N.Y. TIMES, Oct. 5, 2013, at A25A (quoting Texas Governor Rick Perry's corporate recruiting campaign as touting, "When you grow tired of Maryland taxes squeezing every dime out of your business, think Texas, where we've created more jobs than all the other states combined. Where you'll find limited government, low taxes and a fair legal system."). That model does not address the costs associated with Texas having among the highest number of uninsured citizens, the highest proportion of low wage jobs, the highest violent crime rates, and one of the most poorly educated populations in the country. But assessing the soundest of competing economic ideologies is beyond this paper's scope. 2014] Texas Ain't Tuscany 163
costs argument is not gaining much traction whatsoever-at least not among elites in a position to effect real change. 56 These elites are more inclined to capitalize on the political electorate's sense of Texas as "special," using a hardline stance with respect to the death penalty as an efficient and powerful means to pander to that electorate. Why is Texas so special? In part, Texas is special because of its size57 and geographic diversity.58 Moreover, Texas has a uniquely colorful history. Ever since Davy Crockett reacted to losing reelection to the U.S. House of Representatives in Tennessee by declaring, "You may all go to hell, and I will go to Texas,"5 9 Texas has been seen as a place that welcomes those willing to reject the status quo and go their own way. Texas is the only U.S. state that was wrested from both native peoples and colonizers, and then stood for a time as a Republic in its own right before joining the Union. As a result, the state has long been infused with a siege mentality, which in turn contributes to high gun ownership and a concern about fighting off both real and perceived intruders-whether "savages" fighting to maintain their territory in the face of settlement during the frontier days or far-away Iraqis whom a president from Texas purported were a threat to our "freedom." 6 0 Texas is not, of course, the only state that felt insufficient loyalty to the Union such that it seceded not long after Abraham Lincoln's election. 61
56. Diane Jennings, High costs figure into death penalty debate, but Texas holds firm, DALLAS MORNING NEWS, Feb. 26, 2009, http://disc.yourwebapps.com/discussion.cgi?disc=219621;article=42897. 57. The idea that "everything is bigger in Texas" permeates popular culture, even though Texas is neither the most populous state nor the geographically largest. See, e.g., T. Marzetti Co. v. Roskam Baking Co., 2010 WL 793050, at *7 (S.D. Ohio Mar. 3, 2010) ("it is commonly understood in our lexicon that 'everything is bigger in Texas.'). 58. One of the most apt descriptions of Texas's regional diversity appears in the 2011 film Bernie by Texas native Rick Linklater. In the film, which features many real East Texas residents, one such character tries to explain that Texas really consists of five different states (and then proceeds to describe about seven). The film is based on a magazine article chronicling the relationship between 81-year-old millionaire Marjorie Nugent and her much-younger companion, funeral director Bernie Tiede, who eventually murdered Nugent and stuffed her body in a meat freezer. Skip Hollandsworth, Midnight in the Garden of East Texas, TEXAS MONTHLY, Jan. 1998, available at http://www.texasmonthly.com/story/midnight-garden-east-texas. Carthage residents were so fond of Tiede that, despite his having confessed to the murder, the District Attorney requested and received highly unusual relief: a change of venue based on the argument that the prosecution would be unable to secure a fair trial in Carthage. Id. 59. Frederick S. Voss, Portraying an American Original: The Likenesses of Davy Crockett, 91 Sw. HIST. Q. 457, 475 (1988) (quoting Davy Crockett). 60. See JAMES MCENTEER, DEEP IN THE HEART: THE TEXAS TENDENCY IN AMERICAN POLITICS 32 (2004) ("The constitution Texas adopted [in 1836] later reflected a siege mentality that would characterize the republic and later the state of Texas."). 61. Preserving the institution of slavery played an important role in Texas's secession from the Union. Walter L. Buenger, Texas and the Riddle of Secession, 87 Sw. HIST. Q. 151, 152 (1983). The "Declaration of Causes" adopted at the secession convention expressed the conviction that "African slavery" was a natural right and that notions of racial equality violated "the plainest revelations of 164 AM. J. CRIM. L. [Vol. 41:2
But Texas voted by referendum to secede, not just from the Union, but so it could resume its status as a sovereign state.62 Then the state quickly demonstrated its frustration with process, as the secession convention went beyond its mandate and moved to join the Confederacy despite the protests of the sitting governor-war hero Sam Houston-who was summarily forced out of office and, essentially, out of town, as the Confederate flag was hoisted over the Capitol.63 Texas is certainly the only state where a contemporary sitting governor has felt comfortable, nearly 150 years after secession, invoking that act in a political campaign presaging a run for national office. 64 That same governor has, more recently, been using that Texas legacy-of seeing itself as a country unto itself, a sovereign who can take or leave the allegedly supreme federal government-to resist federal legislation that would dare, for instance, to thrust massive funds for Medicaid expansion upon its citizens. 65 While that governor, Rick Perry, may have proved a disastrous presidential contender in 2012,66 his political instincts about what plays
Divine law" and "holding, maintaining, and protecting the institution known as negro slavery" should be permitted "to exist in all future time." TEXAS SECESSION CONy., JOURNAL OF THE SECESSION CONVENTION OF TEXAS 61-66 (E.W. Winkler ed., 1914). One Texas historian reports how a slave owner, absent any irony, stood up in a meeting to urge secession by declaring "the people who will not rise in defense of their rights and their honor, will soon be fit for servitude and for chains." RANDOLPH B. CAMPBELL, GONE TO TEXAS: A HISTORY OF THE LONE STAR STATE 241 (2003). This evidence certainly supports the notion that early Texans, like many of their white brethren in the Deep South, had a special capacity for cognitive dissonance-believing that, were the federal government to deprive the state of its right to permit one set of human beings to enslave another, that it would be tantamount to slavery itself. 62. CAMPBELL, supra note 61, at 242. 63. Id. at 242-44. 64. In the run up to the 2012 presidential election, Rick Perry was taken to task about comments he had made endorsing a modern secession movement. His spokesmen later characterized such comments as "a joke." The Texas Tribune and others, however, unearthed a history of such comments. Maggie Haberman, Rick Perry Critics Unearth Another Secession Comment, POLITICO (Aug. 10, 2011), http://www.politico.com/news/stories/0811/61030.html. 65. Recently, Rick Perry grabbed headlines by declaring his intention to refuse to allow Texas to participate in the Medicaid expansion program, a key component of the Affordable Care Act (also referred to as "Obamacare"). See, e.g., Manny Fernandez, Texans Rebut Governor on Expansion of Medicaid, N.Y. TIMES, Mar. 4, 2013, at A13 (discussing the controversy sparked by Perry's decision). That expansion-for which the federal government would pay 100% of the costs for the first three years and then 90% thereafter-would mean covering more than one million new people in a state that boasts the highest rate of uninsured residents in the nation. See, e.g., Marty Schladen, Gov. Rick Perry, Other Officials Defend Medicaid Expansion Refusal, EL PASO TIMES (Apr. 2, 2013), http://www.elpasotimes.com/newupdated/ci_22914453/gov-rick-perry-other-officials-defend-refusal take; Corrie MacLaggan, Texas Governor Reiterates Medicaid Expansion Opposition, REUTERS (Apr. 1, 2013), http://www.reuters.com/article/2013/04/01/us-usa-texas-medicaid-idUSBRE9300FN20130401; Alison Sullivan, Perry Speech Interrupted by Hecklers, but He Insists He Won't Expand Medicaid, HOUSTON CHRON. (Feb. 22, 2013), http://blog.chron.com/txpotomac/2013/02/perry-speech-interrupted by-hecklers-but-he-insists-he-wont-expand-medicaid. 66. Katherine Fung, Conservative Pundits Skewer Rick Perry's Debate Performance, HUFFINGTON POST (Sept. 23, 2011), http://www.huffingtonpost.com/2011/09/23/conservative-pundits rick-perry-debate-performance n_978250.html. Despite uniformly bad reviews, many journalists posit that Perry is likely to run for the Republican nomination again in 2016. See, e.g., Jay Root, Perry Keeps 2014] Texas Ain't Tuscany 165
well back home are keen. 67 Many Texans value their image as out-of-step with elites in Washington and on the coasts. Likewise, these same folks welcome being at odds with international opinion and tend to disdain humanistic, Hugo-esque notions of "evolving standards of decency." 68 Many Texans, who see colloquial grammar and a homespun drawl as proxies for authenticity, are highly suspicious of intellectual rationalism, due process, and even the rule of law itself-all of which elites who favor death-penalty repeal tend to value. 69 Action-oriented "frontier values" are perceived as preferable. 70 Indeed, sufficient numbers of non-Texans must find the concepts of "swift justice" 71 and "Texas tough" appealing such that they have, in recent decades, rewarded Texans with an extraordinarily large number of seats at the table where national policy is made-which has, in turn, enabled Texas to export criminal justice policy to the rest of the nation.72
2016 Door Open, Offers Advice to GOP, TEXAS TRIBUNE (Nov. 8, 2012), http://www.texastribune.org/2012/11/08/perry-keeps-2016-door-open/ (speculating on Governor Perry's future presidential ambitions). 67. Perry is the state's longest serving governor to date. John Schwartz & Jonathan Martin, Perry Says He Won't Seek Governorship Again in Texas, N.Y. TIMES, July 9, 2013, at A10, available at http://www.nytimes.com/2013/07/09/us/perry-will-not-seek-re-election-as-texas-governor.html. 68. The allusion is to a judicial concept, first articulated in Trop v. Dulles, that the Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual punishment," has to be interpreted in terms of a particular cultural milieu. 356 U.S. 86 (1958). In that case, the Court ruled, 5 4, that revoking U.S. citizenship as a punishment was unconstitutional because it offended "evolving standards of decency." Id. at 101. Despite persistent efforts by several members of the current Court to revisit the "evolving standards" aspect of Eighth Amendment jurisprudence, one would be hard-pressed to counter the historical evidence that Western attitudes regarding acceptable punishments and human suffering have changed over time-and the vector has evolved, not in purely linear fashion, but consistently in one direction: towards seeing violence and cruelty as uncivilized. See generally, STEVEN PINKER, THE BETTER ANGELS OF OUR NATURE: WHY VIOLENCE HAS DECLINED (2011) (charting the decline of violence throughout human history); DAVID GARLAND, PECULIAR INSTITUTION: AMERICA'S DEATH PENALTY IN AN AGE OF ABOLITION (2010) (stating the same). 69. See Carol S. Steiker & Jordan M. Steiker, A Tale of Two Nations: Implementation of the Death Penalty in "Executing" Versus "Symbolic" States in the United States, 84 TEX. L. REV. 1869, 1916 (2006) [hereinafter A Tale of Two Nations] (noting that Texas, like much of the Deep South, "has a history of incomplete conversion to a due process culture of criminal adjudication."). 70. Until 1973, Texas had a law on the books that granted a husband (and husbands only) "free shooting rights" with regard to any man he caught having sex with his wife. BILL NEAL, GETTING AWAY WITH MURDER ON THE TEXAS FRONTIER 17 (2006). 71. As governor of Texas, George W. Bush played a leading role in the incarceration explosion that now characterizes the entire nation's approach to criminal justice. See PERKINSON, supra note 52, at 327-28. Bush made no secret of his attitude; before he was elected Governor in 1994, he described his view of crime policy as follows: "The consequences will be tough and certain." Id. (citing Clay Robinson, Campaign '94: On the Issues-Crime, Education in Texas, HOUSTON CHRONICLE, Oct. 30, 1994, at Al). Bush's role in a record number of executions in Texas was also highly publicized during his first run for president. See, e.g., Frank Bruni & Richard Oppel, Jr., Bush Delays an Execution For the 1st Time in 5 Years, N. Y. TIMES, June 2, 2000, at A18 (discussing Bush's capital punishment policies in the context of his presidential campaign). 72. Texas has produced four modern-era presidents (Dwight D. Eisenhower, Lyndon B. Johnson, George H. W. Bush, George W. Bush), three vice-presidents (Johnson, Bush, Cheney), yet another vice presidential candidate (Lloyd Bentsen), and a third-party presidential candidate (Ross Perot) who probably cost another Texan (George H. W. Bush) his reelection. Texans have also held leadership 166 AM. J. CRIM. L. [Vol. 41:2
Nothing symbolizes the deeply-rooted Texas-tough stereotype like Texas's approach to the death penalty.73 These roots, like those of the scruffy mesquite trees that flourish in some of the state's most inhospitable climes, are hard to dislodge and easy to revive.7 4 A contemporary pro death-penalty stance stimulates root values, serving as a shorthand to many Texans as well as non-Texans attracted to the oversized Texas mystique. 75 Talking tough about the death penalty says: "I am pro community writ small. I understand that this community is surrounded on all sides by threats-particularly from people of color (whose land Texans once seiged, whose ancestors were formerly held in bondage, or who try to cross the border today). Other threats come from foreign governments who want to disarm you and leave you exposed. Y'all can go about your business-but remain armed and vigilant. I'll make sure the Government stays off your
positions recently in both Houses of Congress. Texas political historian Michael Lind argues that the "Texanization" of the American right reached its apex during the George W. Bush presidency, which meant the ascendancy of an ideology that emphasizes minimal government, a bellicose foreign policy, and religious fundamentalism. MICHAEL LIND, MADE IN TEXAS x-xi (2003). In seeking to explain the incarceration explosion in the U.S. in recent decades such that we now spend well over $200 billion per year on prisons, Robert Perkinson concluded that, "in the realm of punishment, all roads lead to Texas"-which incarcerates more people than Germany, France, Belgium, and The Netherlands combined. PERKINSON, supra note 52, at 4, 16. 73. Texas's death row is not only noteworthy for its size (California's is actually much bigger because it does not carry out many executions); it is also noteworthy for its grim excess. See DEATH PENALTY INFORMATION CENTER, Death Row Inmates by State, http://www.deathpenaltyinfo.org/death row-inmates-state-and-size-death-row-year (both Florida and California have more death row inmates than Texas). Inmates spend most of their time in six-by-nine cells from which they cannot even see another person; they are allowed only one hour a day outside of their cells for "rec," which takes place alone in a slightly larger cage that is still inside the prison block; for visits with lawyers and family, death-row inmates are chained to a small plexiglass booth where they speak to visitors through a phone. PERKINSON, supra note 52, at 37-39. I can confirm the accuracy of Perkinson's description because the mind-numbing experience of visiting the Polunksy Unit in Livingston, Texas, which houses Texas's vast death row, haunts me still. 74. Michel Foucault, discussing the challenges involved in abolishing the death penalty, noted "the way in which the death penalty is done away with is at least as important as the doing away. The roots are deep. And many things will depend on how they are cleared out." Michel Foucault, Against Replacement Penalties, in POWER: ESSENTIAL WORKS OF FOUCAULT, 1954-1984 459 (James D. Faubian ed., 2000). 75. Interestingly, Marie Gottschalk contends that, before Furman, the death penalty "was not a signature issue for law-and-order conservatives"-at least not nationwide. Marie Gottschalk, The Long Shadow of the Death Penalty: Mass Incarceration, Capital Punishment, and Penal Policy in the United States, in IS THE DEATH PENALTY DYING? EUROPEAN AND AMERICAN PERSPECTIVE 302 (Austin Sarat & Jurgen Martschunkof eds., 2011). After Furman, however, the death penalty became the centerpiece of debates about crime and punishment. "Select politicians and public officials began in earnest to exploit [the] issue for electoral or ideological reasons." Id. As Jonathan Simon adds, only when executions resumed after Gregg v. Georgia did the death penalty become, for the first time in U.S. history, "the ultimate form of public victim recognition." Jonathan Simon, Violence, Vengeance and Risk: Capital Punishment in the Near-Liberal State (1997) (unpublished manuscript) (on file with the University of Miami). But while the modern death penalty may have become a national tough-on-crime symbol only in the late seventies, Texas-as a Republic and as a state-has always had a death penalty and, throughout its history has largely been committed to using that penalty, not just to wielding it as a symbol. MICHAEL ARIENS, LONE STAR LAW: A LEGAL HISTORY OF TEXAS 227 (2011). Nonetheless, even Texas allowed it to lie dormant for a time before Furman. 2014] Texas Ain't Tuscany 167
back. But if a threat ripens, you can be sure the State will step in and exact swift and certain retribution." This implicit message simultaneously plays to mob sensibilities while promising a ballast against complete mob rule. The message is neither rational nor pragmatic; it is instinctual and darkly palliative. 76 Certainly, for the last two decades, 77 a major proxy for "Texas values" has been the state's willingness not only to sentence people to death, but also to carry out those sentences. 7 8 Two of the state's most successful politicians-measured, respectively, in terms of attaining the nation's highest office and retaining control over the state's highest executive office-are George W. Bush and Rick Perry. These men have aggressively defined themselves as Texans, as leaders, and as defenders of a robust death penalty, almost as if the three were synonyms. For instance, even after the American Bar Association published findings supporting the conclusion that Texas fell far below any measure in terms of adequate indigent defense, Governor Bush signed a bill into law limiting the rights of death-sentenced inmates to pursue appeals in state court7 9 while publicly expressing absolute confidence "that every person that has been put to death in Texas, under [his] watch, had been guilty of the crime charged, and has had full access to the courts." 80 Bush signed death warrants for 152 executions-including forty lethal injections in 2000 alone. 81 Bush's
76. Whatever the contemporary death penalty is intended to address, it is not deterrence. While some death-penalty advocates continue to gesture toward a deterrence argument, no legitimate empirical research has ever demonstrated that the death penalty deters crime. See generally Radelet & Lacock, supra note 47. Indeed, the ABA, criminologists, sociologists, and prominent religious groups agree that the death penalty serves no significant penological purpose. The Beginning of the End, supra note 5, at 121. Nor are these messages akin to the rational pro-death-penalty arguments proffered by Immanuel Kant, who defended the death penalty on the basis of "first principles," rejecting both emotional notions of retribution and humanitarian "sentimentality." EvANS, supra note 28, at 197. 77. The post-1960s Republican "Southern strategy," which has involved highlighting values associated with the South and harnessing the energy of "values voters" in and beyond that region, is characterized by hostility toward civil rights, abortion, gay rights, and gun control and a countervailing emphasis on Christian fundamentalism, crime control, militarism, and the death penalty. See GARLAND, supra note 68, at 253. Texas politicians seem to have recognized that the death penalty itself is the best proxy-not only for those values-but for the fight against foreign elites, defined as both northern liberals and "European socialists," who aim to take away "states' rights" to shape their own culture. 78. See A Tale of Two Nations, supra note 69, at 1911-27 (describing the execution gap between symbolic death penalty states, like California, and actual killing states, like Texas). 79. PERKINSON, supra note 52, at 341. 80. Sara Rimer & Raymond Bonner, Bush Candidacy Puts Focus on Executions, N.Y. TIMES, May 14, 2000, at Al; DICK BURR ET AL., A STATE IN DENIAL: TEXAS JUSTICE AND THE DEATH PENALTY ch. 6 (2000). The Texas Public Defender Service has identified at least six people whom Texas has executed since 1976 whose guilt is questionable, and at least twelve other individuals sentenced to death since 1973 have been exonerated. The latter evidence tends to be spun two different ways depending on which side of the debate one sits: either exonerations are proof that the system is broken and that the risk of executing the innocent remains high; or exonerations are proof that the system of post-conviction review cures all ills. 81. Executed Offenders, TEXAS DEP'T OF CRIMINAL JUSTICE (October 10, 2013), http://www.tdcj.state.tx.us/deathrow/drexecutedoffenders.html. Governor Bush commuted only a 168 AM. J. CRIM. L. [Vol. 41:2
historic record was broken only by his successor, Rick Perry. Perry also vetoed bills that would have prevented execution of juvenile offenders and of persons with mental retardation82 and took the unprecedented action of blocking a 2009 probe into the possible wrongful conviction (and subsequent 2004 execution) of Cameron Todd Willingham after investigative reporting suggested he probably should have been acquitted. 83 These men did not make the culture; 84 but they, like other elite, Texas conservatives, 85 have been willing to exploit what is lurking deep in the soil. Because these Texas leaders understand their base, they are (not surprisingly) disinclined to embrace the cost argument that attorneys general are embracing in other jurisdictions.86
single death sentence during his tenure as Texas's governor. Austin Sarat, Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State, 42 LAW & Soc'Y REv. 183, 188 (2008) (describing how Bush's standard for clemency was such that it "all but ensured that few if any death sentences would be seriously examined"). 82. PERKINSON, supra note 52, at 346. 83. Perry Move Delays Death Penalty Probe, UPI.COM (Sept. 30, 2009), http://www.upi.com/TopNews/2009/09/30/Perry-move-delays-death-penalty-probe/UPI 72411254367009/. 84. Texas's first codified law defined eight crimes as death-penalty offenses, four of which were non-homicides perpetrated against "free white" people. ARIENS, supra note 75, at 30. And ever since Furman v. Georgia, the Texas Attorney General's office has played a leading role in fighting to keep the death penalty and in resisting judicial attempts to curb its application or to micromanage the processes whereby it is pursued. In Furman itself, Texas was at the forefront of the minority supporting retention of the death penalty when the NAACP's Legal Defense Fund and the ACLU were asking the Supreme Court to strike it down. Most of the amicus curiae briefs filed in Furman supported abolition, but Texas raised its voice to assert its right to keep the death penalty. 85. On a national level, a judge on Texas's highest criminal court was criticized for refusing to keep the court open after 5:00 pm for a man sentenced to death to seek an emergency stay, but Texas itself dismissed the pursuit of a public reprimand for this conduct. Texas: Reprimand Is Dismissed Against Judge Who Closed Court, N.Y. TIMES, Oct. 12, 2010, at A16; see also KOCH ET AL., supra note 14, at 154. And even when a state trial judge called a hearing to investigate the constitutionality of the process whereby death sentences are meted out in Texas, prosecutors felt confident about openly displaying their disdain. Juan A. Lozano, Death Penalty Prosecutors in Texas to 'Stand Mute' during Hearing, WASHINGTON POST (Dec. 6, 2010), http://www.washingtonpost.com/wp dyn/content/article/2010/12/06/AR2010120607582.html (reporting that, after a Houston trial judge aborted a capital trial and declared her intention to hold hearings on the constitutionality of Texas's use of the death penalty, prosecutors refused to participate). 86. There are legitimate reasons to believe that, were the economic-costs argument to gather momentum in Texas, members of the Texas political elite might respond by stoking voters to adopt "speed-up" measures similar to those recently signed into law in Florida. See generally, e.g., FLA. STAT. 922.052 (2013) (a Florida statute designed to accelerate the capital punishment process). Legislation of this sort is intended to truncate the appeals process and dramatically shorten the time between conviction and execution, thereby reducing economic costs without abandoning the death penalty. Bill Cotterell, Florida legislators approve measure to speed up executions, CHI. TRIB. (Apr. 29, 2013), http://articles.chicagotribune.com/2013-04-29/news/sns-rt-us-usa-florida-deathpenaltybre93sOut 2 0130429_1_death-appeals-capital-punishment-condemned-killers. After all, the backlash created by Furman is now quite familiar. After a brief moratorium imposed by that decision-just as public opinion seemed to be moving away from majority support for the death penalty for the first time-the Court commenced a long engagement with micromanaging when and how the punishment can be imposed without offending the Constitution. And this development, along with rising crime rates in the 1970s, "galvanized such a powerful political backlash," that support for the death penalty in America garnered new life just as it was being abolished in Canada and Western Europe. Gottschalk, supra note 2014] Texas Ain't Tuscany 169
Rhetorically, both supporters and opponents of the death penalty agree that "[i]f the death penalty exists, it should be fair."8 7 But supporters-particularly those actively involved in litigating death sentences in Texas-say that sufficient safeguards of fairness are already built into the system. By contrast, opponents-particularly those actively involved in defending against death sentences in Texas-say that beneath the surface of most death sentences lies a dearth of due process, prosecutorial misconduct, woefully inadequate counsel, and overwhelming evidence of racial and economic bias. Opponents of the death penalty also point to horror stories of childhood abuse and deprivation that trial counsel did not bother to investigate, let alone present as evidence militating against a sentence as harsh as death. The fact remains that at least a dozen people on Texas's death row have been exonerated since executions resumed after Gregg. 88 Despite this, death-penalty proponents in Texas who are in a position to make policy remain remarkably resistant to efforts to reform the procedural processes that govern capital defense, to fund indigent capital defense, and to impose categorical bans on death-penalty eligibility-thereby ensuring that Texas continues to obtain death sentences and conduct executions in high numbers. The infamous "sleeping lawyer case," for instance, exposed Texas's paltry expectations regarding the level of competence expected of those defending persons accused of capital crimes.8 9 Despite years of extensive bad publicity, Texas continues to resist modest efforts to ensure that those condemned to death have access to procedures that would enable them to challenge the ineffectiveness of their (generally court-appointed) lawyers. 90
75, at 306. 87. KocH ET AL., supra note 14, at 168. 88. Editorial, The death penalty: It's time for capital punishment to become Texas history, HOUSTON CHRON., Jan. 2, 2011, available at http://www.chron.com/opinion/editorials/article/The death-penalty-It-s-time-for-capital-1692445.php; Anthony Graves Becomes 12'h Death Row Inmate Exonerated in Texas, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/anthony-graves-becomes-12th-death-row-inmate-exonerated-texas. 89. Calvin Burdine was sentenced to death in 1983 during a trial in which his defense counsel fell asleep several times-in a manner noticeable enough to be indicated on the record. On direct appeal and in post-conviction review, state attorneys resisted the claim that Burdine had received constitutionally inadequate counsel. The Texas Court of Criminal Appeals and a panel of judges on the Fifth Circuit Court of Appeals affirmed the sentence upon concluding that Burdine had failed to show that his lawyer had slept during "important" portions of the trial. See Burdine v. Johnson, 231 F.3d 950, 964 (5th Cir. 2000). The case stayed in the news for several years, as Burdine's post-conviction counsel was eventually able to help him negotiate a plea deal such that he received multiple life sentences in exchange for a guilty plea. None of that publicity did anything to burnish Texas's image as a jurisdiction committed to safeguarding the rights of the poor facing death as a possible criminal sanction. See, e.g., Linda Greenhouse, Inmate Whose Lawyer Slept Gets New Trial, N.Y. TIMES, June 4, 2002, http://www.nytimes.com/2002/06/04/us/inmate-whose-lawyer-slept-gets-new-trial.html. 90. Trevino v. Thaler, 133 S. Ct. 1911, 1913 (2013) ("The structure and design of the Texas system in actual operation, however, make it 'virtually impossible' for an ineffective assistance claim to be presented on direct review."). 170 AM. J. CRIM. L. [Vol. 41:2
Similarly, Texas policy-makers resisted legislation that would have permitted jurors to choose life without the possibility of parole (LWOP) instead of death, arguing that this alternative to death would "confuse juries." 9 1 In fact, polling data had long demonstrated that, when given the LWOP option, public support for the death penalty dropped considerably. Therefore, it is not a stretch to suggest that Texas conservative political actors recognized that an LWOP sentencing option would likely curtail the number of death sentences that prosecutors in Texas could secure, and they did not see this prospect as a good thing.9 2 Texas only enacted an LWOP option after the Supreme Court decided Roper v. Simmons, which deprived the state of the right to execute juvenile offenders. 93 (Texas was only one of three states in the ten years before that decision that had actually executed such offenders.) 94 In response to Roper, the state finally passed legislation recognizing this reform in 2009, but it did so by requiring an extremely punitive minimum 40-year prison sentence for juvenile murderers since execution was no longer an option. 95 Then, in 2013, Texas pursued and enacted a mandatory life sentence (with the possibility of parole) for capital juvenile offenders, which is, potentially even more punitive than a 40-year mandatory minimum. 96 Likewise, Texas continues to resist a ban on executing people with demonstrable mental retardation as a matter of law and fact. First, Governor Perry vetoed a bill that would have abolished the practice, a fact the Supreme Court noted in Atkins v. Virginia-the decision that categorically banned such executions despite Texas's resistance. 97 But over a decade after Atkins was decided, Texas continues to execute persons with mental retardation, 98 because the Texas Court of Criminal Appeals (the "CCA") has expressly rejected a "bright-line rule" with respect to death sentences for persons with mental retardation, whereas a categorical ban is precisely what the Supreme Court mandated in Atkins. 99 The CCA, in rejecting the categorical ban, reasoned that, while "[m]ost Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of
91. KOCH ETAL., supra note 14, at 170. 92. Id. at 153 (explaining that, without a life-without-parole option, Texas prosecutors were able to argue that jurors could not feel confident that heinous murderers would be permanently restricted, thus making the death penalty seem like the only viable means to prevent future violence). 93. Roper v. Simmons, 543 U.S. 551 (2005) (imposing a categorical ban on the execution of juvenile offenders as unconstitutional under the Eighth Amendment). 94. U.S. Executions Since 1976, THE CLARK COUNTY PROSECUTING ATTORNEY, http://www.clarkprosecutor.org/html/death/usexecute.htm. 95. TEX. PEN. CODE ANN. 12.31 (West 2009). 96. TEX. PEN. CODE ANN. 12.31(b)(1) (West 2009). 97. See Atkins v. Virginia, 536 U.S. 304, 315 n.16 (2002). 98. See Petition for Writ of Certiorari, Chester v. Thaler, 552 U.S. 947 (2007) (No. 06-1616), (the U.S. Supreme Court denied certiorari, explaining that the State of Texas itself had previously classified Chester as mentally retarded). He was executed in June 2013 despite IQ scores consistently below 70. 99. See Ex parte Briseno, 135 S.W.3d 1, 6-7 (Tex. Crim. App. 2004); Atkins, 536 U.S.at 321. 2014] Texas Ain't Tuscany 171
reasoning ability and adaptive skills, be exempt" from execution, the CCA was not sure that others with less severe mental retardation should be exempt as well. 100 Therefore, the CCA rejected the standard for diagnosing intellectual and developmental disabilities recognized universally among clinicians and has instead articulated a set of "factors" (at odds with clinical best-practices) that courts are encouraged to "weigh" in assessing mental retardation in the capital punishment context. 10 1 Most of these factors focus the fact-finder's attention on the grisly details of. the underlying crime, suggesting that anyone capable of committing a capital crime cannot be mentally retarded-though, were this true, that would render Atkins a nullity, which may be the objective. 10 2 Texas has been able to resist reform and project an image of impenetrable consensus with regard to the death penalty because of political contingencies unique to Texas-what the Texas Coalition to Abolish the Death Penalty has called the "Iron Triangle." The trio of conservative forces heavily invested in preserving an active death penalty in Texas is comprised of right-wing politicians, district attorneys, and victims' rights groups such as "Justice for All," an organization that is actively promoted on the Texas Attorney General's official website. 103 Importantly, the elite right-wing politicians who shape the Texas public-policy agenda include state and federal judges. 104 In other states, where judges are not selected through partisan elections, the judicial branch of government is better positioned to represent the rational vision associated with post-Enlightenment elites by serving as neutral arbiters of justice. 105 But where judges are selected in partisan
100. See Briseno, 135 S.W.3d at 6 (Tex. Crim. App. 2004) (citing JOHN STEINBECK, OF MICE AND MEN (1937)). 101. See Briseno, 135 S.W.3d at 8-9. The clinical standard is promulgated by the American Association on Intellectual and Developmental Disabilities ("AAIDD"), formerly the American Association on Mental Retardation ("AAMR"). The AAIDD has appeared as amicus curiae in numerous cases involving the meaning of mental retardation, mental retardation diagnoses in the criminal justice system, and the legal rights of those with intellectual disabilities. The AAIDD/AAMR appeared as amicus curiae, for instance, in Atkins, 536 U.S. 304. Moreover, even before Atkins, the Supreme Court had employed the AAIDD's definition of mental retardation in adjudicating legal issues affecting persons with mental retardation. See Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989); Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442 n.9 (1985). 102. See Briseno, 135 S.W.3d at 8-9. With the announcement of Hall/v. Florida, No. 12-10882, 2014 BL 145335 (U.S. May 27, 2014), the Briseno approach to assessment intellectual disability has been implicitly rejected. 103. See Justice for Victims, Justice for All, THE ATTORNEY GENERAL OF TEXAS, https://www.oag.state.tx.us/alerts/alerts view.php?id=184&type=3. 104. See Anthony Champagne, Judicial Reform in Texas: A Look Back after Two Decades, 43 COURT REVIEW 68, 68 (2006) (Texas has "expensive, highly partisan judicial elections."). 105. See Andrew Cohen, 'A Broken System': Texas's Former Chief Justice Condemns Judicial Elections, THE ATLANTIC, Oct. 18, 2013, http://www.theatlantic.com/nationa1/archive/2013/0/a 5 4 broken-system-texass-former-chief-justice-condemns-judicial-elections/2806 / (recounting conversation with former Chief Justice of the Supreme Court of Texas, Wallace Jefferson, regarding the fundamental failings caused by Texas's system of electing judges). 172 AM. J. CRIM. L. [Vol. 41:2
elections, as they are in Texas, judges must cater to popular sentiment. Additionally, those seeking state-wide office-such as positions on the CCA, Texas's highest criminal court-must cater to the Texas Republican Party, which for nearly two decades has controlled all state-wide offices: Governor, Lieutenant Governor, Attorney General, U.S. Senate, as well as the justices sitting on Texas's two highest courts. Further, U.S. Senators from a particular state are charged with vetting nominees to fill seats on the federal bench in their jurisdiction; therefore, Texas's conservative senators have the ability to look for nominees who, if appointed, might be more inclined by ideology to review death sentences in post-conviction proceedings, not just by accepting that it is a state's prerogative to impose such punishments, but also by being pointedly skeptical of process-based reviews of death sentences. In sum, the pronounced homogeneity among the political elites who hold sway in Texas increases the ability of those committed to a particularly severe and expensive penal policy to maintain a unified front and decreases the need for, or interest in, moderation as a matter of economic costs.106 Because of this uniformity 107 among the political leadership that shapes criminal justice policy in Texas today, Texas has been "holding strong" even as skepticism about the death penalty's efficacy as a penological tool has increased in most other death-penalty jurisdictions. 108
V. The Supreme Court: Where Texas-Style Arguments for the Death Penalty Go to Die
As long as Texas continues to embrace the death penalty as a means to demonstrate that "Texas tough" is not just tough talk, 10 9 there will be no
106. Some have argued that the absence of a true two-party system in Texas make corruption more feasible and, at the very-least, ethical reform more difficult. 107. Of course, Texas is not as monolithic as it may seem to those on the outside. Its citizens are not, and have never been, of one mind about the death penalty's efficacy. Texan Lyndon B. Johnson appointed a Texas Attorney General, Ramsey Clark, who dedicated much of his life to liberal causes, including death-penalty abolition. And empirical data shows that most Texas death sentences are produced by only a few counties-with Houston's Harris County far out in front, a phenomenon that can only be partially explained by Houston's size. Part of the story is that a particular political actor, Harris County's District Attorney John Holmes, was actively committed to pursuing the death penalty, which earned him both political capital and notoriety. Audrey Duff, The Deadly DA, TEXAS MONTHLY, February 1, 1994, available at http://business.highbeam.com/410545/article-1G1-14790976/deadly-da. But historians like David Garland have articulated a convincing connection between retention of the death penalty and gun ownership, vigilantism, and other "frontier" values-all characteristics that are particularly pronounced in Texas. See GARLAND, supra note 68, at 44; see also PERKINSON, supra note 52, at 1 (describing Texas's "uniquely calloused, racialized, and profit-driven style of punishment" as having developed on "slavery's frontier."). 108. See Liptak, supra note 54 (noting that Texas is among the few death-penalty states where, after a death sentence has been obtained, "prosecutors, state and federal courts, the pardon board and the governor are united in moving the process along"). 109. In 2007, in discussing the decision to pursue legislation to make a crime other than murder punishable by death, Texas's Lieutenant Governor David Dewhurst bragged, "There is tough. And then 2014] Texas Ain't Tuscany 173
comprehensive abolition in this country. 110 And as explained above, Texas political elites are, at present, willing to commit significant tax-payer resources not only to maintain the death penalty, but also to resist attempts to chip away at the death penalty through litigation. Therefore, abolition in the United States will not happen without top-down intervention. The only entity in our federalist system in a position to effect such a ban is the Supreme Court of the United States. Contending that Texas seems the least likely state poised to abolish the death penalty on its own is hardly novel." 1 And many scholars of the death penalty believe that complete abolition will only happen if the Supreme Court intervenes, most likely by applying the "evolving standards of decency" methodology that has shown new vitality in the last decade.11 2 Carol and Jordan Steiker, for instance, have articulated compelling reasons to feel sanguine about the possibility that the Supreme Court will be convinced one day by an "evolving standards" argument that relies on recent legislative-repeal efforts1 1 3 in tandem with those states that long ago abandoned the penalty. 114 The Steikers have also described obstacles and historical contingencies that suggest why the Supreme Court is unlikely to find the death penalty categorically unconstitutional any time soon. 115 The biggest obstacle is the principle of stare decisis. To find the death penalty per se unconstitutional, the Court will not only have to reverse itself but reverse relatively recent precedent. 116 That is, the Court has not yet reached a
there's Texas tough." This quote is, presumably what inspired the title of Perkinson's book on Texas's exceptionally punitive criminal justice system and how it became an unfortunate model for the nation. PERKINSON, supra note 52, at 380 n.1. The legislative initiative to which Dewhurst was referring was part of a larger plan hatched in a handful of death-penalty states that came to a head in Kennedy v. Louisiana, discussed infra pp. 176-86. 110. See, e.g., Steve Hall, THE STANDDOWN TEXAS PROJECT (OCT. 21. 2013, 11:21 AM), http://standdown.typepad.com. Hall describes the project, which was launched in 2000, as advocating "a moratorium on executions and a state-sponsored review of Texas's application of the death penalty." Id. Hall was chief of staff to the Attorney General of Texas from 1983-1991, an administrator of the Texas Resource Center from 1993-1995, a journalist, and an aide to the U.S. Congress and several Texas legislators. Id. 111. Michael Radelet, The Executioner's Waning Defenses, in THE ROAD TO ABOLITION? THE FUTURE OF CAPITAL PUNISHMENT IN THE UNITED STATES 36, 92 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009). 112. Id.; see also The Beginning of the End, supra note 5 at 101-25. 113. The Beginning of the End, supra note 5, at 100. 114. Id. at 101-25 (expressing conviction that the death penalty is most likely to be abolished through constitutional litigation and describing recent developments that are cause for optimism). 115. Id. at 101-10. 116. Despite rising skepticism about the death penalty, including Justice Stevens's impassioned concurrence in the challenge to lethal injection protocols in Baze v. Rees, 523 U.S. 35, 71 (1998) (Stevens, J., concurring), the Court has repeatedly acknowledged that the death penalty itself is not cruel or unusual. In fact, Stevens's Rees concurrence highlights the bind the liberal members of the Court likely feel in trying to reconcile existing precedent with mounting concern that the death penalty can ever be purged of arbitrariness, discrimination, and the risk of wrongful conviction through constitutional "tinkering." In other words, more members of the Court may, to borrow from Carol and 174 AM. J. CRIM. L. [Vol. 41:2
moment with respect to its death-penalty jurisprudence analogous to the moment when it was able to reverse Plessy v. Ferguson in Brown v. Board of Education. 17 Before Brown, the Court had been gradually, but steadily, chipping away at the legal foundations that had held state-mandated racial segregation compatible with the U.S. Constitution.1 1 8 Then, in Brown, the Court spoke with one voice. By contrast, with the notably divided nature of the current Court, unanimity with respect to any decision inhibiting the states' ability to execute people seems highly improbable, and an opinion announcing a categorical ban would, at best, muster a bare majority. In short, a decision to strike down the death penalty entirely would, at present, cost the Court more institutional capital than making such a move did when Brown was decided. Moreover, top-down abolition by a handful of the most elite players in our federal system would likely stoke the paranoid fantasies of the far right and the most vociferous death-penalty proponents in places like Texas, thereby spawning another backlash as seen in the wake of Furman, hurting the Court's elite standing and even setting the cause of abolition back. What the Court needs-or at least what five members of the Court need-is sufficient confidence that flouting stare decisis is worth it because failing to do so might cost the Court even more. This is where Texas recalcitrance might prove useful. Texas's appetite for the death penalty, evidenced by its status as the leading killing state year after year and by its commitment of more resources to resisting constitutional litigation challenging death sentences than to indigent defense, is, in one sense, a threat to the Court's relevance. If Texas, with its halls of power packed with those committed to keeping the machinery of death well oiled, can continue to thumb its nose at the Court's death-penalty related mandates, how viable is the Court? How viable is federalism and the U.S. Constitution's Supremacy Clause and the U.S. Constitution itself? Perhaps exasperation with Texas may be the secret to bolstering enough members of the Court to risk short-term popular backlash in the name of salvaging the Court's long-term integrity. The first step in testing this hypothesis is to anatomize Texas's current approach to death-penalty litigation-an approach that stopped working some time ago. A person who played a salient role in shaping Texas's contemporary death penalty legal strategy is Ted Cruz, Texas's former
Jordan Steiker, be realizing that the past few decades of tweaking around the edges of the death penalty may be a chimera, suggesting "the appearance of much greater procedural regularity than they actually produce, thus inducing a false or exaggerated belief in the fairness of the entire system of capital punishment." Carol S. Steiker & Jordan M. Steiker, Should Abolitionists Support Legislative 'Reform' of the Death Penalty? 63 OHIO ST. L.J. 417, 422 (2002). 117. Plessy v. Ferguson, 163 U.S. 537 (1896); Brown v. Bd. of Educ. of Topeka, Shawnee Cnty. Kan., 347 U.S. 483 (1954). 118. The Beginning of the End, supra note 5, at 107. 2014] Texas Ain't Tuscany 175
Solicitor General and now its junior U.S. Senator. 119 A death case about which Cruz is particularly proud is Medellin v. Texas, 12 0 wherein he defended "U.S. sovereignty against the UN and the World Court." 121 More accurately, he defended Texas sovereignty, as the case concerned Texas's ability to defy the Vienna Convention and the International Court of Justice despite directives from the U.S. federal government. Ironically, in the build-up to Medellin, Texas's former governor, then-President George W. Bush, had responded to significant international pressure by issuing a Memorandum to the United States Attorney General, ordering states like Texas to review the convictions and sentences of foreign nationals who had not been advised of their rights under the Vienna Convention before being sentenced. 122 (In some cases, such as Medellin's, the sentences were ones that these foreign governments, our allies, had expressly rejected as human rights violations.) 123 In this particular case, the U.S. government was on the side of Mexican national Jose Ernesto Medellin as he sought federal habeas relief from a death sentence imposed by Texas. 12 4 But the Supreme Court sided with Texas, holding in a 5-4 decision that neither international treaties to which the U.S. is a signatory nor decisions of the International Court of Justice are necessarily binding domestic law, thereby enabling Texas to execute Medellin despite multi-national objections that doing so violated international law. 125 The Medellin decision-which gave the victory to Texas against its own former Governor-turned-President and against most of the civilized world-must have suggested to Cruz and other like-minded Texas elites that Texas was unstoppable. 126 They had succeeded in using state
.119. Senator Cruz has already had a remarkably successful career. He was appointed Texas's Solicitor General at age 32, serving under the state's elected Attorney General, Greg Abbott. Then, bucking the very Republican establishment that had elevated him so quickly, he ran against establishment candidate Lieutenant Governor David Dewhurst for the U.S. Senate seat vacated by Kay Bailey Hutchison, handily winning the election after defeating Dewhurst in-a run-off in 2012. He, along with fellow Texan Rick Perry, is considered a contender for the Republican presidential nomination in 2016. See, e.g., Monica Langley and Janet Hook, Cruz Adds to Speculation of Presidential Ambitions With Iowa Speech, WALL ST. J. (Mar. 18, 2014), http://online.wsj.com/news/articles/SB10001424052702303287804579447671593210220. 120. 552 U.S. 491 (2008) (holding that international treaties to which the U.S. is a signatory are not necessarily binding domestic law and holding that decisions of the International Court of Justice are not binding domestic law). 121. See TED CRUZ, UNITED STATES SENATOR FOR TEXAS, http://www.cruz.senate.gov/about.cfmi; see also ABOUT TED, http://www.tedcruzforsenate.org/about ted/. 122. Medellin, 552 U.S. at 502-03. 123. Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 12, 32 (Mar. 31, 2004). 124. See Medellin, 552 U.S. at 501. Medellin had been sentenced to death in Texas in 1997 at age eighteen for a rape and murder to which he had confessed. Id. Medellin had been arrested, convicted, and sentenced without having been apprised of rights under the Vienna Convention to assistance from his home country's consulate. Id. 125. Id. at 506. 126. Shortly after the Supreme Court issued its decision, Medellin was executed on August 5, 176 AM. J. CRIM. L. [Vol. 41:2
sovereignty as a theme to corral a bare majority of Justices on the Court to deny relief to a death-sentenced offender, thereby shoring up support for Texas's robust use of the death penalty in terms that suggested disdain for the very phenomenon-international opinion-that had bolstered the rationale for categorical bans on death-eligibility announced in recent cases like Roper and Atkins. 12 7 But since then-beginning that same term, in June 2008-the relationship between Texas and the Court (or at least between Texas and the pivotal swing voter, Justice Kennedy) underwent a sea of change. Starting with Kennedy v. Louisiana, 554 U.S. 407 (2008), another case in which Ted Cruz played a prominent role, Texas commenced a remarkable losing streak in death penalty cases before the Supreme Court that has, as of this writing, spanned at least six years. 128 Although Texas is the nation's number one killing state, and death penalty cases continue to consume a great deal of the Court's docket, in the six years since Medellin Texas has been a party to only two of seventeen death penalty cases that the Supreme Court has agreed to hear and that were fully briefed and given oral argument. 129 Texas played a leading role as an amicus in two other death penalty cases, drafting an amicus brief on behalf of a compendium of states in support of another state's position. 130 Most recently, in Hall v. Florida, Texas attorneys wrote the amicus brief that nine other states signed. 131 That is, Texas has played a meaningful role in only
2008 after his last-minute appeals were rejected by the Supreme Court. Governor Rick Perry rejected calls from Mexico and Washington, D.C. to delay the execution, "citing the torture, rape and strangulation of two teenage girls in Houston 15 years before as just cause for the death penalty." James C. McKinley, Jr., Texas Executes Mexican Despite Objection, N.Y. TIMES, Aug. 6, 2008, at A19. 127. A few years before Medellin, the Supreme Court had been exhibiting pronounced exasperation with respect to Texas death penalty cases. See, e.g., Adam Liptak & Ralph Blumenthal, Death Sentences in Texas Cases Try Supreme Court's Patience, N.Y. TIMES (Dec. 5. 2004), http://www.nytimes.com/2004/12/05/national/O5texas.html?pagewanted=2&_r=0. 128. The other five death cases in which Texas played a leading role that have been decided on the merits by the Supreme Court since Kennedy v. Louisiana, 554 U.S. 407 (2008), are: Holland v. Florida, 130 S. Ct. 2549 (2010), a Florida case for which Texas wrote an amicus brief supporting the state's position, which twenty-one other states signed; Skinner v. Switzer, 131 S. Ct. 1289 (2011), a Texas case; Maples v. Thomas, 132 S. Ct. 912 (2012), an Alabama case for which Texas wrote an amicus brief supporting the state's position, which nineteen other states signed; Trevino v. Thaler, 133 S. Ct. 1911 (2013), a Texas case; and Hall v. Florida,No. 12-10882, 2014 BL 145335 (U.S. May 27, 2014), a Florida case for which Arizona is identified as the lead amicus in an amicus brief supporting the state's position but which was authored by Texas attorneys in a private law firm in Austin, Texas, most of whom were formerly affiliated with the Texas Office of the Solicitor General, 129. See supra text accompanying note 128. This fact alone suggests, at least superficially, that the Court is somewhat reluctant to take death penalty cases arising out of Texas since Texas, because it is among the most active death penalty states, produces a great deal of death penalty litigation and thus should, more often than not, be a party in death penalty cases that make it to the nation's highest court. 130. See supra text accompanying note 128. 131. Interesting, "Counsel of Record" for the nine states weighing in as amici in support of Florida in Hall is a Texas attorney: Sean Jordan. Mr. Jordan was the principal deputy solicitor general in Texas's Office of the Solicitor General, initially serving under Ted Cruz and then continuing in that role under Cruz's successors until Mr. Jordan returned to private practice in 2012. At least two other attorneys whose names appear on the cover of the states' 2014] Texas Ain't Tuscany 177
five of seventeen-about one-fourth-of the Court's death penalty cases in the six years since Medellin; and in each of those five cases, Texas has been on the losing side. 132 Moreover, of the eight other death penalty cases in the sample-cases in which Texas played no part or merely signed on to an amicus brief spearheaded by another state's attorney general-the state has won seven' 33 of the eight cases.1 34 While this sample is not statistically significant, the pattern is interesting in that it suggests, without proving, that where Texas is the face of pro-death-penalty advocacy, the odds that traditionally favor death penalty states are eviscerated. That Texas's losing streak began in earnest just after one of Texas's most audacious wins (in Medellin) beckons us to scrutinize the brief that 5 Texas submitted in Kennedy v. Louisiana.13 In Kennedy, Ted Cruz was Counsel of Record for the State of Texas in an amicus brief supporting Louisiana. 136 The Texas Brief, whose drafting Cruz supervised, was signed by eight other attorneys general from death-penalty states.137 The case involved a death sentence imposed by Louisiana on a man named Patrick Kennedy for the horrific rape of his eight-year-old step-daughter.1 38 The issue in the case was whether death as a punishment for a crime other than murder was constitutional or if it offended evolving standards of decency, thereby violating the
amicus brief submitted in Hall also served in Texas's Office of the Solicitor General. Yet Texas itself did not "sign" the brief. 132. See supra note 128 and accompanying text. 133. See Montejo v. Louisiana, 556 U.S. 778 (2009), a Louisiana case for which New Mexico wrote an amicus brief supporting the state's position that sixteen other states, but not Texas, signed; Beard v. Kindler, 130 S. Ct. 612 (2009), a Pennsylvania case for which California wrote an amicus brief supporting the state's position that twenty-five other states, but not Texas, signed; Smith v. Spisak, 130 S. Ct. 676 (2010), an Ohio case for which Pennsylvania wrote an amicus brief supporting the state's position that eighteen other states, but not Texas, signed; Wood v. Allen, 130 S. Ct. 841 (2010), an Alabama case for which Indiana wrote an amicus brief supporting the state's position that eighteen other states, including Texas, signed; Cullen v. Pinholster, 131 S. Ct. 1388 (2011), a California case for which Pennsylvania wrote an amicus brief supporting the state's position that seventeen states, including Texas, signed; Martel v. Clair, 132 S. Ct. 1276 (2012), a California case for which Florida wrote an amicus brief supporting the state's position that twenty-five states, including Texas and Guam, signed; Ryan v. Gonzales, 133 S. Ct. 696 (2013), an Arizona case for which Utah wrote an amicus brief supporting the state's position that thirteen other states, but not Texas, signed. The other death cases during this period did not draw amici support and generally the petition for certiorariwas granted and the case decided on the same day in a per curiam decision. See, e.g., Bobby v. Van Hook, 130 S. Ct. 13 (2009). 134. The one case that breaks the pattern-where a death-sentenced Petitioner was victorious in a case in which Texas played only a passive role-is Martinez v. Ryan, 132 S. Ct. 1309 (2012). That is the recent case that created the modest procedural right for people sentenced to death in Arizona to state a claim of inadequate assistance of counsel at post-conviction proceedings to establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial, and which paved the way for Trevino, 133 S. Ct. 1911, in the 2012-2013 term. 135. See Kennedy v. Louisiana, 554 U.S. 407 (2008). 136. Brief for Texas et al. as Amici Curiae Supporting Respondent, Kennedy v. Louisiana, 554 U.S. 407 (2008) (No. 07-343) [hereinafter Texas Brief]. 137. Id. 138. Kennedy, 554 U.S. at 413-16. 178 AM. J. CRIM. L. [Vol. 41:2
Constitution's Eighth Amendment. 139 The Louisiana Supreme Court had concluded that the punishment was constitutional, distinguishing the plurality decision in the Supreme Court's 1977 Coker v. Georgia decision, which had held that death is an unconstitutional punishment for the rape of an adult woman. 14 0 The Louisiana Court had cited the heightened need for deterrence of and retribution for crimes against children. 141 The Louisiana Court then took a novel tact, explaining that in the Supreme Court's more recent decisions involving categorical bans-Atkins v. Virginia and Roper v. Simmons-the Court had looked for a national consensus before finding a particular punishment excessive. 142 Based on the trends discussed in Atkins and Roper, the Louisiana Court decided there existed a national consensus concerning the appropriateness of capital punishment for child rapists because five other states had recently enacted laws similar to those of Louisiana. 143 But in this context, the Louisiana Court saw a consensus trending toward expanding the death penalty's reach, not curtailing its availability. The Court granted Patrick Kennedy's petition for writ of certiorari on direct appeal, not waiting for habeas review. 144 That Texas-and, specifically, its Solicitor General at that time, Ted Cruz-wanted to be heard in this case is not surprising. For a group of states to team up and file an amicus brief in a death penalty case pending before the Supreme Court is hardly unusual these days. Of the seventeen death penalty cases that the Court agreed to hear and that were fully briefed in the six-year period from Kennedy (2008) to Hall (2014), some group of states filed an amicus brief to support a fellow state in thirteen of seventeen cases. 145 But it was unusual for the representative of the amici states to file a motion asking to share time during oral argument with counsel for the Respondent, Louisiana's Attorney General. Yet that is what Ted Cruz did.146 Even more unusual was the Supreme Court's decision to grant Cruz's request. And more unusual still was the fact that Cruz was making this unusual request for the second time in a single Supreme Court term and his effort to secure time during oral argument as an amicus succeeded in both instances. 14 7
139. Id. at 413. 140. State v. Kennedy, 957 So. 2d 757, 784, 789 (La. 2007). 141. Id. at 789. 142. Id. at 782-83. 143. Id. at 784-88. 144. Kennedy, 554 U.S. at 419. 145. Of the thirteen death penalty cases in which amicus briefs were filed, Texas (or Texas counsel) submitted briefs in five cases. See supra text accompanying note 128. Texas did not file an independent amicus brief in the remaining eight cases. See supra text accompanying note 132. 146. U.S. Supreme Court Docket, Kennedy v. Louisiana, 554 U.S. 407 (2008) (No. 07-343). 147. The other occasion was in District of Columbia v. Heller, 554 U.S. 570 (2008), in which Texas, under Cruz's direction, drafted an amicus brief for numerous states supporting Heller's 2014] Texas Ain't Tuscany 179
It seemed that a sufficient number of the Court's justices really wanted to hear what Texas-qua-Cruz had to say. Then, despite these unusual developments, despite what some described as Cruz's skillful performance during oral argument, and despite the profoundly disturbing and highly publicized details of the underlying crime, the state of Louisiana lost. 14 8 Having Texas on its side had not proven helpful to Louisiana and others seeking to expand the death penalty because Texas had failed to persuade those (1) who were -amenable to persuasion and (2) who occupied an elite position that would have enabled them to effect change. How did Texas, et al. endeavor to persuade the Court in this case? What precise aspects of their brief were wanting? And how might this failure prove useful to those developing contemporary arguments for death penalty abolition? A close look at the Texas Brief reveals a series of rhetorical strategies that a skilled and highly educated lawyer like Ted Cruz should have known were likely to rub elites, committed to reason-based argumentation, the wrong way. First, the Texas Brief in Kennedy was signed by nine states-only six of which had laws on the books like the one at issue in the case (permitting death as a punishment for a non-homicide crime, rape of a minor). The mismatch between the number of signatories and the number of states that truly had a vested interest in the type of law at issue in the case suggests disrespect for a basic precept of federal court jurisdiction: standing. Further, the Texas Brief repeatedly characterized the laws of these six states as "many statutes" that reflected a "national consensus," 14 9 a point that is facially hyperbolic when one considers that most people would not consider six of fifty, or 8%, equivalent to "many." Second, at the time of the brief's submission, Texas had only recently enacted its death-penalty-for-child-rape law,150 and the way in which the brief describes that development is not so much a legal argument as an overt appeal to emotion. Several pages are devoted to heralding the law's passage by explaining how it was named after a Florida girl who had been killed (not just raped) by a serial sex offender in a highly publicized case in that state.151 The Texas Brief cites a Fox News story about the Florida crime as support for how the Texas legislature chose the name for interpretation of the Second Amendment as granting individuals a broad right to possess firearms for self-defense. Cruz also participated in the Medellin oral argument that term, but this involvement was not idiosyncratic since he was Texas's Solicitor General at the time and Texas was a party in that high profile appeal. 148. Kennedy, 554 U.S. at 447. 149. Texas Brief, supra note 135, at 10-11, 17-18. 150. See PERKINSON, supra note 52, at 459 n.72 (describing Governor Perry's public statements with respect to the law). 151. Texas Brief, supra note 135, at 8-10. 180 AM. J. CRIM. L. [Vol. 41:2
the law. 152 The Fox News story is not, however, about the legislative process in Texas.153 It is about the gruesome crime and the jury's ultimate recommendation that the Florida killer be sentenced to death. 14 The article does mention that the "killing prompted Florida and a number of other states to pass new laws cracking down on sex offenders and to improve tracking of them through databases and satellite positioning devices." 155 But the article predates the state's legislative efforts to add to the categories of crimes that are punishable by death. The Texas Brief then cites statements from the Texas legislative record indicating various legislators' sense that death is the appropriate punishment for repeat perpetrators of violent sex crimes against children, as if expressions of (understandable) outrage about a horrible homicide that occurred in another state is sufficient proof that sentencing someone to death as a punitive measure for a non homicide passes constitutional muster. 156 Texas's central argument 15 7 is the same seemingly clever, paradoxical argument that had been adopted by Louisiana's highest court in the decision under review. That argument had turned the U.S. Supreme Court's "evolving standards of decency" jurisprudence on its head.158 The Texas Brief argues that these standards should be assessed by reviewing "objective indicia of national consensus," such as current legislative trends. 159 Thus the Texas Brief implies that what matters are not raw numbers but recent momentum. Texas contends that "evolution" does not imply a particular direction over an extended period of time, but a recent spurt in any direction. The Texas Brief does not acknowledge that the source of this argument is the Louisiana Supreme Court. Instead, the Texas Brief cites a law student "Note" published in the South Carolina Law
152. Id. at9. 153. Judge Sentences John Couey to Deathfor Murdering Jessica Lunsford, Fox NEWS (Aug. 24, 2007), http://www.foxnews.com/story/2007/08/24/judge-sentences-john-couey-to-death-for-murdering jessica-lunsford/. 154. Id. 155. Id. 156. Texas Brief, supra note 135, at 9. 157. The Texas Brief also argues that several other non-homicide crimes, particularly treason, are punishable by death. Id. at 11-13. This argument has some historical force, but has not been a significant factor in post-Furman death-penalty jurisprudence. 158. The first problem with this argument is that it amounts to a "me too" argument, a regurgitation of a position already in the record, for it was the rationale adopted by the court in the decision under review and was an argument promoted by an actual party to the appeal-the state of Louisiana-in its merits brief. Although empirical studies regarding effective amicus briefing are sparse, it is fairly clear that friend-of-the-court briefs that merely repeat arguments already in the record are not perceived as helpful to the courts to whom they are addressed and may even hurt the cause for which the amicus is advocating. 159. See Texas Brief, supra note 135, at 14-16 (citing Atkins v. Virginia, 536 U.S. 304 (2002), Roper v. Simmons, 543 U.S. 551 (2005), and other recent proportionality decisions wherein the Court utilized the evolving standards of decency rationale to decide the case). 2014] Texas Ain't Tuscany 181
Review. 160 This student Note is remarkable for its patently provocative tone. It begins by asking the reader to imagine a man who comes home from work one day in a bad mood and commences serially raping his five year-old daughter and her two prepubescent friends. 161 The writer suggests that he does so "over and over" again until he is finally reported; then, years later, all three victims learn that they are infected with HIV.16 2 The Note's author then concludes that South Carolina's (then recent) Sex Offender Accountability and Protection of Minors Act of 2006, which would permit sentencing a person who had committed such crimes to death, should be found constitutional pursuant to her novel conception of "evolving standards of decency."163 The Texas Brief, in building upon the Note's thesis, argues that, when the Court decided Roper, which banned the death penalty for juvenile offenders, "just five States" had recently moved to abolish the juvenile death penalty.1 64 Further, the Texas Brief reminds the Court of its precept that "[t]he clearest and most reliable objective evidence of contemporary [societal] values" is "legislation."1 65 Aside from ignoring the number of states that had long before abandoned the practice of executing juvenile offenders or that had rejected the death penalty altogether, the argument is undercut by a rather striking non sequitur: "And, at least in the instant case, a jury of his peers unanimously agreed that Patrick Kennedy's crime merited the death penalty."166 The Texas Brief does not explain how twelve citizens serving on a jury in one profoundly disturbing case is analogous to a trend of legislative enactments such that one jury-or any number of juries-are an appropriate barometer of "evolving standards of decency." Instead, the Texas Brief presumes that a jury's expression of outrage in one case is a sufficient basis to sustain its proffered interpretation of constitutional text. Then, while ostensibly applying the Court's Eighth-Amendment jurisprudence, the Texas Brief mocks that precedent. Through a pastiche that mixes and matches holdings and rationales from several inapposite Eighth Amendment cases, the Texas Brief forges a new legal proposition:
160. See id. at 8 (citing Ashley M. Kearns, South Carolina's Evolving Standards of Decency: Capital Child Rape Statute Provides a Reminder That Societal ProgressionContinues Through Action, Not Idleness, 58 S.C. L. REv. 509 (2007)). The citation in the Texas Brief does not indicate that the source is a student note and not an article, as The Bluebook directs. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 16.7(b), at 153 (Columbia Law Review Ass'n et al. eds., 19th ed. 2010). The Louisiana Supreme Court also cites this student note in its first Kennedy decision. State v. Kennedy, 957 So. 2d 757, 785-86 (La. 2007). 161. Kearns, supranote 160, at 509-10. 162. Id. at510. 163. Id. at510-11. 164. Texas Brief, supra note 135, at 18. This argument does not, however, account for the fact that, by that time, many states banned the death penalty altogether. 165. Id. 166. Id. at 19. 182 AM. J. CRIM. L. [Vol. 41:2
that "child rapists" may "reliab[ly] be classified among the worst offenders." 167 The Texas Brief asserts, for instance, that this proposition is not really new because the Court had already established that the "'critical facet' of the culpability determination" is the degree of criminal intent and "reckless indifference to the value of human life." 16 8 The new legal principle, which the Texas Brief treats as an existing legal principle, is radical because it suggests that any crime that is subjectively perceived as "heinous" and indicative of "moral depravity" reflecting a "reckless indifference" toward its victim is a crime that "warrants the death penalty." 169 But this is not something the Supreme Court has ever said. Moreover, Roper-the principal case upon which the Texas Brief relies-is about abolishing death as a penalty for juvenile offenders in part because, as cognitive psychiatry has demonstrated, impulse control and other psychological factors related to judgment are less developed in young people. 170 Similarly, Tison is about the felony-murder rule and what degree of participation is necessary for an individual's death sentence to be proportionate to the crime. 171 In other words, neither of these cases is about non-homicide rape or crimes against children (although both cases involved offenders who were under twenty-one). The reasoning of the Texas Brief, though, is that any crime that is horrible-and all violent crimes, especially those perpetrated against children, are horrible-should be death-eligible if at least a handful of states had recently been moved to find such crimes death-eligible. Finally, the Texas Brief devotes several pages to a graphic description of Kennedy's crime, concluding that, because "in the judgment of his peers," he is a scumbag, he deserves the death penalty. 17 2 But if viewed seriously through the lens of logic, this argument exposes the whole problem with a sentencing process that amounts to inciting feelings of moral outrage such that a jury will be inclined to punish in a pique of vengeance. After providing the Court with graphic details of Kennedy's truly repulsive crime, the Texas Brief then provides information about the long term, devastating effects of child abuse-on the child, extended family, and society. 173 This argument is problematic for two distinct reasons. First, this information is not the sort that states, as amici, are particularly well-suited to share with the Court since the states lack any special expertise in the subject matter. Perhaps this lack of expertise is why the Texas Brief
167. Id. at 20 (citing Roper v. Simmons, 543 U.S. 551(2005)). 168. Id. (citing Tison v. Arizona, 481 U.S. 137 (1987)). 169. Id. 170. Roper, 543 U.S. at 578-79. 171. Tison, 481 U.S. at 138. 172. Texas Brief, supra note 135, at 23. 173. Id. at 23-26. 2014] Texas Ain't Tuscany 183
indulges in a serious ipse dixit. The Texas Brief cites a Heritage Foundation report regarding the massive costs associated with child abuse, admitting that "evidence further suggests that child abuse is a frequent precursor to adult criminality." 174 Second, putting aside any reasonable doubts one might have about the efficacy of a report derived from an unknown research methodology on behalf of a conservative interest group, the proposition that the report is intended to support actually undercuts the fundamental theme in the Texas Brief.171 If research shows that an abused child is more likely to become an adult sex offender, then the penological justification for executing child abusers is undercut because killing such abusers does nothing to deter future crime. Once they have been victimized as a child, the abused child is poised to pass on the heinous legacy through "sexual revictimization." 176 Thus the study actually exposes the futility of executing such child abusers because it does nothing to break the cycle that produces people who are damaged to the point that they are predisposed to commit such crimes. The more cogent argument arising from the study is that society's limited resources should be used to try to break the cycle of child abuse by addressing the root causes of such abuse and to lift children out of demonstrably abusive circumstances. In short, the Texas Brief, while well-written in terms of style and sentence-level flair, is riddled with classic fallacies unlikely to persuade the audience to whom the brief is directed. The Texas Brief: * Overstates the degree to which the signatories represent a consensus and leans too heavily on the notion of an emerging popular consensus (argumentum adpopulum); " Engages in arguments by distraction designed to inflame the emotions instead of appealing to reason; " Seeks recourse to suspect authorities (such as Fox News, the Heritage Foundation, and a law student's Note); " Implicitly impugns the motive of the Court itself by mocking its modem Eighth Amendment jurisprudence; * Cherry picks quotes from the Court's precedent instead of respecting the context from which holdings were derived; " Begs the question whether death as a punishment for child rape furthers any valid penological objective; and " Assumes a false causation (post hoc ergo propter hoc) in maintaining that executing child abusers will protect society from the harms of child abuse, while adding that being a victim of child abuse itself likely engenders the impulse in (some) adults to abuse
174. Id. at 26 (citing Patrick F. Fagan & Dorothy B. Hanks, Heritage Found., Backgrounder No. 1115, The Child Abuse Crisis: The Disintegrationof Marriage, Family, and the American Community, at 6 (May 15, 1997), available at http://www.heritage.org/Research/Family/BG1115.cfhi). 175. Id. 176. Id. 184 AM. J. CRIM. L. [Vol. 41:2
children. Because these fallacies are so rampant, they are not difficult to spot. Certainly, they were not lost on Justice Kennedy who authored the majority opinion in this case. 177 The opinion roundly rejects the notion that death is a constitutional punishment for raping a minor simply because a handful of states had recently passed statutes permitting such a punishment. 178 The Court begins the opinion with a reminder of how the rule of law is supposed to operate in our federalist system: "The National Government and, beyond it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the Constitution of the United States, and all persons within those respective jurisdictions may invoke its protection." 179 Then, after acknowledging the horrific nature of the crime at issue, the opinion confronts virtually all of the logical fallacies on display in the Texas Brief and mounts a pointed defense of the Court's Eighth Amendment, "evolving standards of decency" jurisprudence that the Texas Brief had sought to upend. 180 Ultimately, one must conclude that the Texas Brief, which failed so miserably, was written for an audience other than the Court itself. Considering the errors recounted above, the highly intelligent, skilled lawyers involved in the brief's preparation back in Texas could not have believed the brief would convince Justice Kennedy to join the more predictable contingent of Justices Alito, Scalia, Thomas, and Chief Justice Roberts, who ultimately comprised the dissenting block. Therefore, the Texas Brief, as legal advocacy, was a failure. Why spend considerable time and tax-payer money on such a brief, on preparing for and participating in oral argument as an amicus, and on defending a brand-new law if the goal was not to secure a win? Perhaps the answer is that the real audience for the brief was not the Court at all, but the folks back home. The Texas Brief's principal architect was, at the time, an unelected state official. But shortly after appearing in the Kennedy oral argument for Texas, et al. and before a decision in that case was announced, Cruz left Texas's Solicitor General's Office and entered private practice. 181 Thereafter, Cruz announced his intention to run for the seat Senator Kay Bailey Hutchison was vacating.'8 2 His bid for the open seat was successful,
177. Kennedy v. Louisiana, 554 U.S. 407, 412-13 (2008). 178. Id. at 421, 423. 179. Id. at 412. 180. Id. at 412-47. 181. Ross Ramsey, How It All Came Out, TEX. WEEKLY (April 14, 2008), http://www.texastribune.org/2008/04/14/how-it-all-came-out/. 182. Brandi Grissom, Former Solicitor General Ted Cruz Joins Senate Race, THE TEX. TRIBUNE (Jan. 19, 2011), http://www.texastribune.org/2011/01/19/frmer-solicitor-general-ted-cruz-joins-senate race/. 2014] Texas Ain't Tuscany 185
primarily because he defeated the state's long-standing Lieutenant Governor, the Republican establishment candidate, in a primary runoff by a 14-point margin.183 Since taking office, the junior senator from Texas has exhibited a noteworthy ability to play to a base of "Values Voters," which tend to include folks committed to retaining a robust death penalty. Of course, after Cruz's exit from the Solicitor General's Office, Texas actors did not cease spending public time and money fighting against further incursions upon the death penalty-nor did Texas cease losing those fights at the Supreme Court level. 18 4 But by inviting the Supreme Court Justices to side with Texas in terms that seem to mock concepts that are fundamental to the Court's stability and legitimacy, Texas, et al. were not likely to carry the day. They .were not speaking in terms calibrated to persuade the particular elites in a position to effect the kind of change Texas seemed to be after. By contrast, Tuscany's Beccaria spoke to the elites of his day about the death penalty's costs in terms that resonated with those elites' fundamental values. This portrait of contrasts suggests that if Texas just keeps on being Texas, it will be easier for the persuadable members of the Court to conclude that Texas cannot be trusted with the death penalty. Texas's willingness to defy Supreme Court mandates, not to mention international standards, to preserve an unbridled death penalty threatens the stability of the Court and the federal republic itself.
183. Elizabeth Hartfield, Ted Cruz Wins in Texas GOP Senate Runoff, ABC NEWS (Jul. 31, 2012), http://abcnews.go.com/blogs/politics/2012/07/ted-cruz-wins-in-texas-gop-senate-runoff/; OFFICE OF THE SEC'Y. OF STATE, 2012 REPUBLICAN PRIMARY RUNOFF (Jul. 31, 2012), http://elections.sos.state.tx.us/elchist.exe (Select "2012 Republican Primary Runoff' from drop-down menu). 184. Even several years before Kennedy, Texas had been more likely to lose than win death cases before the Supreme Court. The trend, however, seemed to change with Medellin, which augured that at least a majority of the Court seemed willing to give Texas considerable latitude in the death-penalty context in the name of state sovereignty. In Kennedy, though, any change seemingly presaged by Medellin was abruptly cut short. Ultimately, Justice Scalia is the only current member of the Court who actively embraces the kind of partisan rhetoric that Cruz utilized as the Texas Solicitor General. A telling example of how comfortable Justice Scalia is with a rhetorical style that pushes the envelope of judicial-decorum is found in his Atkins dissent. Atkins v. Virginia, 536 U.S. 304, 337-52 (2002) (Scalia, J., dissenting). Scalia's tone is replete with sarcasm as he chides the majority for "its embarrassingly feeble evidence of 'consensus,"' even giving a "Prize for the Court's Most Feeble Effort to fabricate 'national consensus"' in "the views of assorted professional and religious organizations, members of the so-called 'world community,' and respondents to opinion polls." Id. at 344, 347. No one could ever accuse Justice Scalia of being bland, but a stylistic voice that so palpably resonates with precepts passionately espoused by members of The Federalist Society ultimately grates the ear because it stands in opposition to the basic understanding of judicial restraint. The value of such sober and restrained judicial decision-making is foundational to the rule of law. Because of Justice Scalia's well known propensities, endeavoring to win his vote in support of the State in a death penalty case is not where the heavy lifting lies. 186 AM. J. CRIM. L. [Vol. 41:2
VI. Conclusion
The point of an argument, particularly any legal or public policy argument, is to persuade. For decades after Furman v. Georgia, when the Supreme Court imposed what proved to be a short-term moratorium on the death penalty, proponents of abolition have been marshalling all manner of arguments in an effort to persuade the Supreme Court, legislators, and the general public that the death penalty should be abolished. At bottom, most of these arguments have been premised on a moral imperative: the death penalty is wrong. The problem with arguments that hinge on moral imperatives is that they do not tend to persuade unless the audience already shares the advocate's normative presuppositions. Rational arguments that support a particular moral position do not change minds so much as fortify people who already possess a particular normative view, inspiring them to recommit to values they have instinctively embraced and are, in a sense, part of their very identities. 185 Endeavoring to persuade those who strongly believe that the death penalty is just that the death penalty is morally repugnant has been a quixotic enterprise.186 Perhaps that is why the arguments that are gaining the most traction today are reason-based arguments for death-penalty "repeal" that shift the conversation further away from the (utterly false) choice between the human dignity of crime victims and the human dignity of the criminally-accused, focusing the audience instead on values that resonate with contemporary American, cost-conscious culture. The contemporary American version of Beccaria's cost-argument for abolition focuses on the ineluctably error-ridden system that, quite literally, costs too much to maintain and monitor. Even assuming the morality of the death penalty, the question many conservatives are now asking is: Can this ideal notion of Justice-that society can only be made whole after the commission of the most heinous offenses through the death of the perpetrator-ever be implemented in a way that is not arbitrary, capricious, inefficient, or unfair when the Government is in charge of the penal system? Elites in charge in Texas, however, have too much to lose to join in this collective soul-searching. In this article, I have tried to use the Texas phenomenon to tease out additional nuances involved in making a cost argument for our times. I submit that before Texas can look more like Tuscany, the benefits certain key actors garner from maintaining the death' penalty must be included in the calculus. Despite hopeful signs, like the emergence of a conservative entity whose objective is to cast doubt on the death penalty's efficacy, the
185. See generally JOSEPH RAZ, FROM NORMATIVITY TO RESPONSIBILITY (2011). 186. Perhaps the problem is expressed best by a quip attributed to Jonathan Swift: "It is useless to attempt to reason a man out of a thing he was never reasoned into." JOHNATHAN SWIFT, in CIVILIZATION'S QUOTATIONS: LIFE'S IDEAL 105, 105 (2002). 2014] Texas Ain't Tuscany 187
enormous political benefits some can reap from retaining the death penalty mean that Texas will not likely be jumping on the repeal-bandwagon any time soon. Therefore, the Supreme Court of the United States-the only contemporary entity that is, like Peter Leopold of 1 8th century Tuscany, capable of abolishing the death penalty with the stroke of (five) pens-must be convinced that doing so would be worth the costs. The argument that might do the trick must target those on the Court who can be persuaded- either because they have deep-seated, if unstated, moral convictions that the death penalty is wrong, or because they care more about the Court's integrity than about Republican hegemony in Texas. 187 For those members of the Court, successful arguments are ones that resonate with the precise culture of the Court itself-an elite institution committed in principle to argumentation that transcends ideology and regional self-interests. To prevail with these jurists, who owe their ultimate allegiance to the idea of a federal republic, arguments must affirm the Court's place in overseeing the ultimate contours of criminal punishment within that republic.
187. I can certainly be faulted for undue optimism about the prospect of quickening the Supreme Court's willingness to announce a constitutionally-based categorical ban based on Kennedy v. Louisiana, a case that expressly reaffirms the proposition that the death penalty is not, in all instances, unconstitutional. Kennedy v. Louisiana, 554 U.S. 407, 420 (2008). After all, prominent abolitionist Hugo Adam Bedau wrote in 1974 that "we will not see another execution in the nation this century." Henry Adam Bedau, Challenging the Death Penalty, 9 HARV. C.R.-C.L. L. REV. 643 (May 1974). And death-penalty scholars Frank Zimring and Gordon Hawkins predicted in a book first published in 1986, shortly after the post-Furman revival of executions "that the last execution in the United States is more likely to take place in fifteen years than in fifty years; and it is not beyond the possibility that executions will cease in the near future." FRANK ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 157 (1986). Nearly thirty years later, states, especially Texas, are still executing numerous people each year. Arguably, these predictions may have been so far off because these prominent scholars could not have foreseen the oversized role Texas would play in both exporting an ideological view that privileges the death penalty and committing to such a robust regime of executions. . t Article
The Death Penalty and Mass Incarceration: Convergences and Divergences
Carol S. Steiker* & Jordan M. Steiker**
I. Common Political Background Conditions...... 190 II. Mutually Reinforcing Policies...... 194 III. Recent Divergences...... 197 IV. "Death is Different" as a Double-Edged Sword...... 200 V. Life After Death ...... 204 V I. C onclusion...... 207
American penal policy over the past forty years is striking in its departure both from the policies of our own recent past and from those of our peer nations. With regard to capital punishment, despite a steep downward trajectory in executions nationwide during the 1960s, falling to zero in the five years leading up to the temporary abolition of Furman v. Georgia1 in 1972, the death penalty came back with a vengeance in the years following its reinstatement in Gregg v. Georgia2 and accompanying cases in 1976. By the late 1990s, death sentencing rates and execution rates reached highs that the United States had not seen in fifty years, while every other Western democracy converged on abolition as a reflection of a growing consensus that the death penalty constitutes a violation of international human rights.3 With regard to incarceration practices, the American imprisonment rate increased five-fold in the decades between 1970 and the early 2000s, yielding a total current incarceration (prison and jail) rate of over 700 per 100,000 of population-the highest rate in our own history and in the world.4
* Henry J. Friendly Professor of Law, Harvard Law School. * Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law. For helpful engagement and comments, we thank participants in the Symposium on Mass Incarceration and the Death Penalty at the University of Texas School of Law in March, 2013. 1. 408 U.S. 238 (1972). 2. 428 U.S. 153 (1976). 3. See Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 OR. L. REV. 97, 127 (2002) [hereinafter American Exceptionalism]. 4. See MARC MAUER, RACE TO INCARCERATE 9 (rev. ed. 2006) (noting that the increased incarceration rates were nearly seven times higher than the historic rates of the United States, as well as
189 190 AM. J. CRIM. L. [Vol. 41:2
A cursory survey of these parallel trends yields the plausible observation that the continued retention of the death penalty and the huge increase in the incarceration rate are joint indications of the hearty American appetite for punitiveness. Under this view, super-sized sentences and the embrace of the ultimate sanction of death are linked phenomena, reflecting a common underlying political and social reality and tracing a common trajectory. As with many simple, broad-brush observations, there is much truth in this account. But there is also reason to question and complicate this assessment. Although the stories of the American death penalty and what has come to be called our policy of "mass incarceration" have many commonalities, they also have significant divergences-not least of which is the noticeably much more massive decline in capital practices over the past dozen years, as compared to the far more modest and recent declines in incarceration. Moreover, the two phenomena are not independent of each other; rather, arguments, policies, and law relating to the death penalty have had complicated, multidirectional spillover effects in the context of incarceration, and vice versa. Our goal is to explore in more fine-grained detail the convergences, divergences, and interactions of the death penalty and mass incarceration over the past several decades. We first address the convergences, identifying the common political background conditions and mutually reinforcing policies that promoted both the enthusiastic retention of the death penalty and the surge of the incarceration rate from the 1970s onward. We then discuss the divergences, both as a matter of practices on the ground and at the conceptual and constitutional levels. Finally, we turn our attention to the future, imagining possible routes to nationwide abolition of the death penalty and the likely impact on incarceration and the broader criminal justice system.
I. Common Political Background Conditions
In the early 1970s, the Supreme Court's decision in Furman constitutionally invalidating the practice of capital punishment through the country was greeted with consternation and even outrage, despite the dramatic declines in executions of the previous decade. 5 In the first few years following Furman, thirty-five states passed new capital statutes, leading the Court to acknowledge that it had misjudged the level of public support for the death penalty and to validate a new generation of state capital schemes in 1976.6 The massive response to Furman reflected a political reality on the ground: the emergence of a new politics of crime and
those of its international peers). 5. Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 46-47 (2007). 6. See Gregg, 428 U.S. at 179 ("[D]evelopments during the four years since Furman have undercut substantially the assumptions upon which [the abolitionists' argument] rested .... The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman."). 2014] Death Penalty and Mass Incarceration 191 punishment that prompted both the reinvigoration of the American death penalty and new policies that would cause the American.incarceration rate to begin its long, steep, upward trajectory. This new political reality of crime and punishment arose in response to several crucial, interrelated circumstances. First, the United States saw a long period of rising crime rates, starting in the early 1960s and continuing without any substantial relief until the 1990s. 7 During this decades-long crime wave, homicides and serious violent crimes were among the offenses that rose the fastest, and urban centers went from being relatively safe to being notoriously crime-ridden. 8 The high-profile acquittal of Bernard Goetz for the 1984 shooting of four young black men whom Goetz claimed were about to rob him on a New York City subway train reflected the degree of public fear and anger about violent crime in New York and elsewhere that had accumulated over the preceding two decades. 9 The introduction of "crack" cocaine to American markets in the 1980s helped to push the already high crime rate even higher, as addicts turned to crime to support their habits and dealers engaged in violent turf wars. 10 Both the legislative response to Furman that led to the Court's reinstatement of capital punishment in 1976 and the growing support for "tough on crime" policies and the "war on drugs" that spurred the incarceration boom were fueled by the ever-rising crime rate and its visible destructive force across the country." Second, the strong emotions of fear and anger that rising crime rates evoked from the public led politicians to seek to capitalize on these developments through self-consciously crime-driven campaign strategies. Starting in the 1960s, politicians like then-California Governor Ronald Reagan and President Richard Nixon pushed the issue of crime to the forefront of their successful campaigns in state and national politics. 12 Jh a more coordinated fashion, the Republican Party pursued its "Southern Strategy" to separate socially conservative, white Southerners from their historic affiliation with the Democratic Party by using crime as a racially coded issue. 13 Political strategists had no trouble attracting media attention
7. See State-by-state and national crime estimates by year(s), BUREAU OF JUSTICE STATISTICS, http://www.bjs.gov/ucrdata/Search/Crime/State/RunCrimeStatebyState.cfm (setting parameters to "United States-Total," "Number of violent crimes," and "1960 to 2012"). 8. See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 2 (2011). 9. See GEORGE P. FLETCHER, A CRIME OF SELF DEFENSE: BERNARD GOETZ AND THE LAW ON TRIAL (1990) (describing and analyzing legal proceedings that led to Goetz's acquittal); MALCOLM GLADWELL, THE TIPPING POINT: HoW LITTLE THINGS CAN MAKE A BIG DIFFERENCE 137 (2002) (describing New York in the 1980s as "a city in the grip of one of the worst crime epidemics in its history"). 10. See Craig Reinarman & Harry G. Levine, Crack in the Rearview Mirror: Deconstructing Drug War Mythology, 31 SOC. JUST. 182, 182 (2004) ("The new laws against crack helped to drive the most massive wave of imprisonment in the history of the United States."). 11. See generally MAUER, supra note 4, at chs. 3, 4, 10 (describing the "tough on crime" and "war on drugs" movements as well as related policies). 12. MICHELLE ALEXANDER, THE NEW JIM CROW 46-48 (2010). 13. Id. at 43-44. 192 AM. J. CRIM. L. [Vol. 41:2 to constant, replenishing crises of criminal victimization, given that the same things that win elections also sell newspapers-as the old media adage goes, "If it bleeds, it leads."" The combination of campaign and media attention to the intrinsically gripping problem of violent crime ensured the ongoing high salience of crime in the public mind and the steady popularity of "tough on crime" policies. In this atmosphere, the death penalty became a particularly potent symbol, offering politicians a way to signal in powerful shorthand their claims of toughness. For example, many state and national politicians sought to broadcast their support for and direct participation in capital punishment as a centerpiece of their campaigns. 15 Similarly, politicians rallied around the popular policies that drove mass incarceration in part because of their symbolic rhetoric. "Three strikes and you're out" and the "war on drugs" were shibboleths that won many backers for life sentences for recidivists (even for some nonviolent ones) and mandatory minimum drug sentences (even for some fairly low-level offenders). 16 In addition to producing new political incentives, rising crime rates also produced a new and soon politicized community-the growing body of crime victims. As the criminal justice system changed to adjust to growing numbers of defendants and cases, it also had to adjust to the needs of more victims, who increasingly sought greater power in the criminal justice process. Just as the "women's movement" advocated (unsuccessfully) for a constitutional amendment to ensure equal rights for women, the "victims' rights movement" sought constitutional amendments and legislation at both the federal and state levels to promote the interests of victims in the criminal process, including provisions for greater consultation, input, privacy, counseling, and restitution, among other things. 17 Although unsuccessful in attaining a federal constitutional amendment, the victims' rights movement achieved many state successes in terms of both constitutional amendments and legislation. 1 8 The organization of such a sympathetic constituency both played a substantial role in supporting legislation that increased the incarceration rate, and served as an important counterweight to capital defendants' constitutional right to present mitigating evidence in the post-Gregg world of capital sentencing by insisting on the introduction of "victim impact evidence." 19 The new political reality also received support from an unexpected place-the hallowed and usually liberal halls of academic criminology. In
14. See id. at 46-47. 15. See American Exceptionalism, supra note 3, at 112-13. 16. See id at 115 n.58. 17. See generally Douglas E. Beloof, The Third Wave of Crime Victims' Rights: Standing, Remedy, and Review, 2005 BYU L. REV. 255 (2005) (describing successes of the victims' rights movement and arguing for further expansions). 18. See id. at 257-58. 19. See Payne v. Tennessee, 505 U.S. 808, 825 (1991) (overturning the constitutional ban on the use of victim impact evidence in capital sentencing proceedings). 2014] Death Penalty and Mass Incarceration 193
1974, researcher Robert Martinson published an article reviewing the literature on effective rehabilitative strategies and proposing the disheartening hypothesis that "nothing works." 2 0 Martinson's suggestion hit a nerve with both left- and right-wing critics of rehabilitation-oriented criminal justice policies. The left feared repressive paternalism from the willingness of the state to intervene more broadly and more intrusively into individual liberty in the name of good intentions; the success of the 1971 film A Clockwork Orange, in which a dystopic state used invasive psychological conditioning to "treat" a criminal offender, aptly reflected these fears. 21 The right objected to coddling criminals by offering them services unavailable to the non-offending poor. This convergence of views from both sides of the political spectrum ensured that Martinson's "nothing works" conclusion "became synonymous with a way of characterising [sic] the treatment/rehabilitation approach for a generation." 22 Into the void left by the discredited rehabilitative theory of criminal justice naturally flowed deterrent and retributive theories-purposes that supported many of the new, harsher criminal statutes of the 1970s and 1980s and that were explicitly invoked by the Supreme Court to justify its reauthorization of capital punishment in 1976.23 Finally, mass incarceration and capital punishment were promoted by parallel movements away from discretionary post-sentence interventions, which led to deep declines in both parole for those incarcerated and clemency for those under sentence of death. One of the primary targets of the victims' rights movement was back-end discretion that shortened the public sentences imposed in the courtroom. This cause was cleverly and successfully pursued with calls for "truth in sentencing" that ultimately led to drastic cutbacks in the availability of parole and had the intended effect of increasing sentence lengths. 24 At the same time, the post-Gregg era saw a tremendous decline in the use of gubernatorial clemency to set aside death sentences. 25 The more structured capital sentencing process offered by the new generation of capital statutes approved by the Supreme Court led governors to increasingly defer to the outcomes produced by the judicial process.26 Thus, the public's increased
20. Robert Martinson, What Works? Questions and Answers About Prison Reform, 35 THE PUBLIC INTEREST 22, 48-49 (1974). 21. A CLOCKWORK ORANGE (Warner Bros., Hawk Films 1971). 22. GWEN ROBINSON & LAIN D. CROW, OFFENDER REHABILITATION: THEORY, RESEARCH, AND PRACTICE 28 (2009). 23. See Gregg v. Georgia, 428 U.S. 153, 183-86 (1976). 24. See WILLIAM J. SABOL ET AL., THE INFLUENCES OF TRUTH-IN-SENTENCING REFORMS ON CHANGES IN STATES' SENTENCING PRACTICES AND PRISON POPULATIONS (2002), available at http://www.urban.org/publications/410470.html. 25. Elizabeth Rapaport, Straight is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 NEW MEX. L. REv. 350, 353 (2003). See generally Hugo Adam Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. REV. L. & SOC. CHANGE 255 (1990-199 1). 26. See Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REv. 355, 435 (1995) 194 AM. J. CRIM. L. [Vol. 41:2 suspicion of discretionary mercy led to similar institutional changes in the capital and noncapital contexts that supported both the growing prison populations and the burgeoning death rows of the post-Furman era.
II. Mutually Reinforcing Policies
In addition to their common origins in the new political reality around crime and punishment that emerged in the 1960s and 1970s, the parallel rise of mass incarceration and capital punishment also owe a debt to one another. Legal and policy developments regarding incarceration often helped to reinforce commitment to capital punishment in both theoretical and practical ways, and vice versa. Thus, America's carceral and capital policies shared a doubly-linked fate, both in prevailing politics and in mutually supportive policies. Several polices central to the rise of mass incarceration have helped to promote the retention of capital punishment at the abstract level of theory and discourse. The spread of "three strikes and you're out laws"2 7 that impose lengthy and often mandatory sentences on repeat offenders, the sharply increased prosecution of juvenile offenders as adults,2 8 and the stringent registration and community notification requirements imposed on sex offenders (as well as the growth of indefinite civil commitment for those deemed to be "sexually violent predators") 2 9 together constructed a public narrative of the "irredeemable" violent offender. This narrative dovetailed with the decline of rehabilitation as a plausible penological goal to promote a view of many criminal offenders as being beyond hope and posing an ongoing, even lifelong, threat to society.3 0 This construction of "monstrous offenders" 31 created a feedback loop with "tough on crime" politics and the "nothing works" rejection of effective rehabilitation, entrenching and deepening calls for effective tools against such offenders. Given that the death of an offender is the only perfect prevention of future offending, it is not surprising that penal discourse and policies addressing "irredeemable" or "monstrous" offenders would create favorable conditions for the retention and use of the death penalty.
[hereinafter Sober Second Thoughts]. 27. See generally THREE STRIKES AND YOU'RE OUT: VENGEANCE AS PUBLIC POLICY (David Shichor & Dale K. Sechrest eds., 1996) (collection of essays examining a broad range of issues surrounding three strikes laws, including local and national variations of habitual offender, career criminal, and recidivist statutes). 28. See Donna Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 CRIME & JUST. 81, 83-84 (2000) (describing and evaluating effects of state policies substantially increasing the number of juvenile offenders prosecuted and convicted in state criminal courts in response to rising juvenile offense rates). 29. See generally ERIC S. JANUS, FAILURE TO PROTECT: AMERICA'S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE (2006) (describing and critiquing civil commitment and community notification laws regarding sex offenders). 30. See Joseph B. Kennedy, Monstrous Offenders and the Search for Solidarity Through Modern Punishment, 51 HASTINGS L.J. 829, 852-53 (2000). 31. See id. at833. 2014] Death Penalty and Mass Incarceration 195
Another major policy in the rise of mass incarceration that supported the death penalty was the "war on drugs." The rhetoric of war supported capital punishment at the level of theory and discourse because wars by their very nature presuppose a fight to the death against a lethal enemy. But the war on drugs also supported the death penalty in several more concrete ways. First, most directly, Congress passed a federal death penalty provision in 1988 authorizing capital prosecutions for murder in the course of a "drug kingpin" conspiracy. Six people were sentenced to death under this provision in the next few years. 32 Moreover, in 1994 Congress passed a more substantial extension of the federal death penalty, authorizing capital prosecutions for "drug kingpins" running large drug conspiracies, even in the absence of a homicide. 33 This latter provision, however, has not yielded any death sentences and is now potentially unconstitutional under the Supreme Court's recent constitutional proportionality decision prohibiting the death penalty as applied to ordinary non-homicidal offenses. 34 In addition, the war on drugs, by promoting a strongly punitive, rather than a therapeutic, approach to the problem of the widespread distribution. and use of controlled substances, undercut the force of mitigation arguments in individual capital sentencing proceedings based on the common capital defendant's experience of substance abuse. 35 A scholar who has studied what capital jurors find to be mitigating observed that a capital defendant's drug addiction is very unlikely to be considered as mitigating in the sentencing decision and, indeed, that a small number of jurors report considering it as aggravating evidence. 36 This discounting of the potential mitigating force of substance abuse is a product of larger social attitudes toward drug use, which were shaped in part by the long-running war on drugs. Finally, and most concretely, the prison-building boom that accompanied the massive run-up in incarceration also contributed to arguments that supported the retention of capital punishment. As the number of prisons grew, so did the number of correctional officers, and these employees and their unions have become a potent political force in many jurisdictions. Public comments by prison guards or their representatives are now a staple of the death penalty debate in the media and at hearings on the possible repeal (or reinstatement) of capital punishment in state legislatures. The prison guards argue that the death penalty is necessary in order to protect prison personnel and other inmates from violence by lifers or those serving long sentences, who supposedly
32. See Recent Summaries of the Results of Federal CapitalProsecutions, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/federal-death-penalty (last visited Feb. 8, 2014). 33. Id. 34. See Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (holding that a death sentence for rape of a child violated the Eighth Amendment). 35. See Stephen P. Garvey, Aggravation and Mitigation in Captial Cases: What do Jurors Think?, 98 COLUM. L. REV. 1538, 1571, Table 8 (1998). 36. See id. at 1571, Table 7. 196 AM. J. CRIM. L. [Vol. 41:2 have little left to lose, despite a dearth of supporting empirical evidence on this point.37 One might think that economic incentives would lead prison officials to support incarceration, which generates their employment, over execution. However, the staffing of specialized, high-security death rows, where capital inmates spend on average more than a decade awaiting execution, 38 also creates a financial incentive for such employment to be maintained. This may explain why California's powerful prison guard union, which oversees the largest death row in the nation, has traditionally supported both prison expansion and the death penalty. 39 Conversely, developments in capital punishment law also supported the incarceration boom. At the level of abstraction, the Supreme Court's short-lived abolition of the death penalty in 1972, followed by the commencement of its ongoing project of procedural regulation with the validation of the new generation of "guided discretion" statutes in 1976,40 reinforced the popular backlash that had greeted the Warren Court's more general "criminal procedure" revolution of the 1960s. 41 The "law and order" political campaigns of the 1960s and 1970s directed much of their ire toward the Supreme Court's perceived coddling of criminals and handcuffing of law enforcement, with only half-facetious calls to "[I]mpeach Earl Warren." 42 The post-Warren Court's capital punishment decisions helped to tend the embers and fan the flames of this still smoldering backlash. Moreover, the Court's death penalty jurisprudence, by taking an ongoing regulatory role in the administration of capital punishment, prompted not merely anger from ardent death penalty supporters, but also greater comfort with capital punishment from death penalty skeptics. Qualms about the fairness and reliability of the capital punishment process could be assuaged by the seemingly intensive-though actually fairly undemanding-constitutional regulation of the capital process. What we have called the "legitimating" effect of the constitutional regulation of capital punishment 43 may well have helped to legitimate not merely the death penalty, but also the larger criminal justice system. The public could view the entire system as an 'intensively regulated-indeed, over-regulated-domain in which the balance of power needed to shift to
37. Dawinder S. Sidhu, On Appeal: Reviewing the Case againstthe Death Penalty, 111 W. VA. L. REv. 453, 491 (2009). 38. See, e.g., Arthur L. Alarcon, Remedies for California'sDeath Row Deadlock, 80 S. CAL. L. REv. 667, 700 (2007) (noting that the average length of time between sentence and execution in California now exceeds seventeen years). 39. See, e.g., California's Prison-Guards' Union: Fading Are the Peacemakers, THE ECONOMIST, Feb. 25, 2010, available at http://www.economist.com/node/15580530 (noting that the prison guards' association supported laws facilitating filling prisons to double capacity). 40. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). 41. See Carol S. Steiker, Introduction to CRIMINAL PROCEDURE STORIES i, x (Carol S. Steiker ed., 2006). 42. Id. 43. See Sober Second Thoughts, supra note 26, at 426-38. 2014] Death Penalty and Mass Incarceration 197 law-enforcement. At a more concrete level, the introduction and near-universal spread of the sentence of life-without-possibility-of-parole (LWOP), starting in the 1970s, directly promoted the phenomenon of mass incarceration. While the extent of the influence of death penalty law on the widespread embrace of LWOP remains debatable, it is nonetheless clear that in some states the adoption of LWOP was driven primarily, if not exclusively, by death penalty politics. For example, Alabama, Illinois, and Louisiana each adopted LWOP statutes for the first time in response to Furman, fearing that the abolition of the death penalty would leave no other means of protecting the community from violent murderers.4 4 In Texas, the adoption of LWOP also came about as a result of the Supreme Court's regulation of capital punishment. 45 Death penalty supporters in Texas had long opposed LWOP as an alternative to the death penalty for the same reason that death penalty opponents supported it-the shared belief that the availability of LWOP as an alternative would make Texas sentencing juries less likely to return death verdicts. 46 Only after the Supreme Court invalidated the death penalty for juvenile offenders did death penalty supporters agree to make LWOP a sentencing alternative for murder-because without the death penalty as an option for juveniles, the introduction of LWOP had the effect of increasing, rather than decreasing, the maximum punishment available for juvenile murderers.47 The Texas LWOP story suggests that the speed and ease of the spread of such a new and extreme penalty as LWOP was facilitated in part by the muting of left-wing opposition as a result of the left's opposition to the burgeoning use of the death penalty.
III. Recent Divergences
The influence of death penalty politics on the spread of LWOP is a good place to begin when considering the divergences between the paths of mass incarceration and capital punishment. Although mass incarceration was promoted by the spread of LWOP, and LWOP was promoted by the politics of capital punishment, it is important to note that LWOP's success was not buoyed by the death penalty itself. Rather, LWOP was fueled by opposition to the death penalty, which made LWOP appear to be a lesser evil. The relationship of mass incarceration and the death penalty is thus not always one of linked fate, but at least sometimes one of hydraulic interaction. The extent to which incarceration and capital punishment are not entirely on the same trajectory becomes even clearer when one looks at the events of last decade or so. Since the turn of the millennium, the practice of capital punishment has essentially been in free-fall: executions
44. See Note, A Matter of Life and Death: The Effect of Life- Without-Parole Statutes on Capital Punishment, 119 HARV. L. REV. 1838, 1841 (2006). 45. Id. at 1843. 46. Id. 47. See id. at 1843-44. 198 AM. J. CRIM. L. [Vol. 41:2 are down by more than half from their annual high of nearly 100 in the late 1990s, and death sentences are down by two-thirds from an annual high of around 300 in the late 1990s. 48 Six states have legislatively abolished capital punishment since 2005, while no abolitionist state has reinstated the penalty since New York in 1995 (though New York abolished it in 2005 without carrying out any executions in the interim).4 9 Although mass incarceration, too, began to decrease, with the incarceration rate falling each year since 2009,50 the drop in incarceration began later than the drop in capital punishment, and the decrease has been far less substantial incremental rather than radical.5 ' What accounts for the newly diverging paths of mass incarceration and capital punishment? One answer lies in the disparate effects in the two contexts surrounding the "innocence revolution"-the spate of high-profile DNA exonerations that began in the late 1990s and that shook the public's faith in the reliability of the criminal justice system. In the capital context, new concerns about innocence have increased skepticism about the wisdom of retaining capital punishment, and such concerns were highly influential in six recently successful legislative campaigns to abolish the death penalty. 52 Fear of executing the innocent proved to be a powerful enabler of Republican cross-over on capital punishment, long an issue of the Democratic leftist fringe, as illustrated by Republican Governor George Ryan's granting of mass clemency to Illinois's entire death row in 2003, citing the wrongful conviction of seventeen death-sentenced inmates in the state.53 In contrast, concerns about innocence with regard to noncapital
48. See The Death Penalty in 2013: Year End Report, DEATH PENALTY INFORMATION CENTER (2013), available at http://deathpenaltyinfo.org/documents/YearEnd2013.pdf. 49. See Michael Powell, In N. Y, Lawmakers Vote Not to Reinstate Capital Punishment, WASH. POST, Apr. 13, 2005, at A3, available at http://www.washingtonpost.com/wp-dyn/articles/A47871 2005Apr12.html. 50. See generally David Cole, Turning the Corner on Mass Incarceration, 9 OHIO ST. J. CRIM. L. 27 (2011) (documenting causes for the drop in the incarceration rate); Erica Goode, U.S. Prison Populations Decline, Reflecting New Approach to Crime, N.Y. TIMES, July 25, 2013, at All, available at http://www.nytimes.com/2013/07/26/us/us-prison-populations-decline-reflecting-new-approach-to crime.html?_r=0 (noting a fall in federal and state prison populations for three consecutive years between 2010 and 2012). 51. See Goode, supra note 50. 52. See NY's Death Penalty: Did you know?, NEW YORKERS FOR ALTERNATIVES TO THE DEATH PENALTY, http://www.nyadp.org/content/nys-death-penalty-did-you-know (last visited May 12, 2014); New Jersey's Death Penalty: Innocence, NEW JERSEYANS FOR ALTERNATIVES TO THE DEATH PENALTY, http://www.njadp.org/gdabout&what=innocence (last visited May 12, 2014); Why New Mexico Repealed the Death Penalty, THE NEW MEXICO COALITION TO REPEAL THE DEATH PENALTY, http://www.nmrepeal.org/ (last visited May 12, 2014); Why Repeal the Death Penalty?, ILLINOIS COALITION AGAINST THE DEATH PENALTY, http://www.icadp.org/content/why-repeal-death-penalty (last visited May 12, 2014); Innocence, CONNECTICUT NETWORK TO ABOLISH THE DEATH PENALTY, http://cnadp.org/resources/issues/innocence/ (last visited May 12, 2014); The Death Penalty in Maryland, MARYLAND CITIZENS AGAINST STATE EXECUTIONS, http://www.mdcase.org/node/92 (last visited May 12, 2014). 53. See In Ryan's Words: 'IMust Act, 'N.Y.TIMES (Jan. 11, 2003), available at http://www.nytimes.com/2003/01/11/national/11CND-RTEX.html. 2014] Death Penalty and Mass Incarceration 199 convictions have had more muted effects, since abolition of criminal sanctions is not a realistic reform option. Rather, on the noncapital side, the innocence revolution spurred procedural reforms regarding, for example, the procedures for eliciting eyewitness identifications and for collecting, storing, and testing DNA material. 54 Such reforms, even if many of them are adopted, may help ensure the reliability of future convictions, but they will not make a substantial dent in the incarceration rate. What is required to address the phenomenon of mass incarceration is a movement not for more procedural justice, but rather for moderation or proportionality in punishment. Concerns about innocence, however, do not obviously bear upon the latter issue. A second cause of the divergence between mass incarceration and the death penalty is the rising relative cost of the death penalty and the distribution of that cost within jurisdictions. The Supreme Court's constitutional regulation of capital punishment has driven up the costs of capital trials and appeals, so that they now far outstrip the costs of noncapital cases-even when the cost of lifetime incarceration is included on the noncapital side. 55 The lion's share of these capital costs lies in trial level expenses, with the investigation of mitigating evidence and accompanying expert services that attend most competent capital sentencing presentations. Unlike the cost of incarceration, which is borne at the state level in state corrections budgets, the cost of capital trials is borne at the local, county level.56 Thus, in times of fiscal crisis, local prosecutors may come to see capital trials as unaffordable luxuries, even as they do not moderate their advocacy for lengthy sentences whose costs are spread across the state.57 Moreover, at the state level, corrections budgets are less responsive to fiscal crises, both because running prisons entails fixed costs and because prisons create jobs (and those jobs create politically powerful unions). Finally, the divergence between the enormous decline in capital practice and the very modest decline in imprisonment is facilitated by yet another difference between the two contexts: capital punishment offers the possibility of symbolic use for which there is no analog on the noncapital side.58 A significant proportion of states make merely symbolic use of the
54. See BRANDON L. GARRETT, CONVICTING THE INNOCENT 241-74 (2001). 55. See generally Carol S. Steiker & Jordan M. Steiker, Cost and Capital Punishment: A New Consideration Transforms an Old Debate, 2010 U. CHI. LEGAL F. 117 (2010) [hereinafter Cost and Capital Punishment] (addressing the effect of cost arguments in recent death penalty debates and policies). 56. See Katherine Baicker, The Budgetary Repercussions of Capital Convictions, 4 ADVANCES IN ECON. ANALYSIS & POL., no. 1, 2004, at 1, available at http://www.dartmouth.edu/-kbaicker/BaickerCapital.pdf. 57. Ian Urbina, Citing Costs, States ConsiderEnd to Death Penalty, N.Y. TIMES, Feb. 24, 2009, at Al, available at http://www.nytimes.com/2009/02/25/us/25death.html?pagewanted=all&_r=0. 58. See generally Carol S. Steiker & Jordan M. Steiker, A Tale of Two Nations: Implementation of the Death Penalty in "Executing" Versus "Symbolic" States in the United States, 84 TEX. L. REV. 1869 (2006) [hereinafter A Tale of Two Nations] (describing and explaining "symbolic" use of the death penalty). 200 AM. J. CRIM. L. [Vol. 41:2
death penalty,either by retaining it on their books but returning few if any death sentences (like New Hampshire and Wyoming), or by vigorously sentencing defendants to death but executing very few of the condemned (like California and Pennsylvania). 5 9 Thus, the political appetite for capital punishment can be fed in a variety of ways, some of which are far less fiscally costly and will promote the substantial decline (or disappearance) of death sentences, executions, or both. The only rough equivalent on the noncapital side is the symbolic raising of the maximum sentence for existing crimes. Legislative votes for such increases do not necessarily translate into either higher costs or higher sentences, but they generate political points for being tough on crime. Such symbolic moves on the noncapital side, though they will not necessarily increase sentence lengths, will certainly not decrease incarceration rates.
IV. "Death is Different" as a Double-Edged Sword
Perhaps the most dramatic divergence between the capital and noncapital spheres over the past four decades has occurred in the judicial realm. For most of our history, the American death penalty was essentially immune from constitutional regulation, as both the state and federal courts imposed few restrictions on capital practices. 60 But when the Supreme Court entered the fray in the late 1960s and early 1970s, and embarked on a course of continuing constitutional regulation, it grounded its efforts on the principle that "death is different."6 1 The mantra of "death is different" justified Furman's invalidation of prevailing capital statutes, as the Court found intolerable the risk of arbitrary administration that was presumably lamentable, but not constitutionally objectionable, on the noncapital side.62 When the Court subsequently upheld several of the new post-Furman statutes, the death-is-different principle accounted for a new and growing body of intricate doctrines applicable to the administration of capital punishment.63 The path of judicial regulation of the death penalty has taken
59. Simon Rogers, Death Penalty Statisticsfrom the US: Which State Executes the Most People?, GUARDIAN (Sept. 21, 2011), http://www.theguardian.com/news/datablog/2011/sep/21/death-penalty-statistics-us. 60. See Part 1: History of the Death Penalty, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/part-i-history-death-penalty (last visited May 13, 2014) ("The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty."). 61. See, e.g., Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring) (stating that "[d]eath is a unique punishment"); id. at 306 (Stewart, J., concurring) (stating that "[t]he penalty of death differs from all other forms of criminal punishment not in degree but in kind"). 62. See Lindsey S. Vann, History Repeats Itself The Post-Furman Return to Arbitrariness in Capital Punishment, 45 U. RICH. L. REV. 1255, 1260-61 (2011) (pointing out arbitrariness of administration as the common thread in the five separately written opinions constituting Furman's majority). 63. See William J. Bowers, The Pervasiveness of Arbitrariness andDiscrimination under Post Furman CapitalStatutes, 74 J. CRIM. L. & CRIMINOLOGY 1067, 1068 (1983) (noting the complexities of the formulaic statutes of Florida, Georgia, and Texas that were upheld in Gregg v. Georgia). 2014] Death Penalty and Mass Incarceration 201 surprising turns. In its first two decades, judicial regulation led to a stunning number of reversals as the Court elaborated the central doctrines of its capital jurisprudence: the requirement that state schemes "narrow" the class of death-eligible offenders via aggravating circumstances; the seemingly contrary requirement that states permit open-ended consideration of "individualizing" evidence supporting a sentence less than death; the amorphous insistence on "heightened reliability" in capital proceedings; and the newly-emerging doctrine of "proportionality," setting outer limits on the types of offenders and offenses within the death penalty's reach. 64 As noted above, the actual demands of the Court's death penalty jurisprudence during this period were quite minimal, and many of the reversals were attributable to faulty lines of communication between courts and state actors.65 Nonetheless, judicial regulation-and the death-is different principle-gave the appearance of intensive regulation, and the Supreme Court's intervention seemed to entrench and stabilize capital punishment. Indeed, as the number of death sentences and executions climbed to their modern-era highs in the mid-to-late 1990s,66 it was a fair question whether American capital punishment had become increasingly robust in spite of, or because of, judicial regulation. Over the past two decades, the Court's regulatory approach has become more demanding, particularly in its approach to proportionality. After initially rejecting categorical bars against executing juvenile and intellectually disabled offenders, 6 7 the Court reversed course and declared both practices excessively cruel.6 8 Importantly, the Court shifted its Eighth Amendment methodology, focusingless on the sheer number of states prohibiting the practice (in both cases, only eighteen states had prohibitions in place) 69 than on other indicia of prevailing societal standards, including the frequency of death-sentencing and executions of those offenders, elite and professional opinions, international practices, as well as the Court's own proportionality judgment. Applying the newly-emerging methodology, the Court also rejected states' emerging efforts to punish child rape with death, announcing what amounts to a flat ban on punishing
64. See Sober Second Thoughts, supra note 26, at 372-403 (discussing each of these central doctrines in detail). 65. Id. at 402-03. 66. See Warren Richey, Death Penalty Less Common in US Now than in 1990s, Report Finds, THE CHRISTIAN SCIENCE MONITOR (Dec. 21, 2010), http://www.csmonitor.com/USA/Justice/2010/1221/Death-penalty-less-common-in-US-now-than-in 1990s-report-finds (noting that the number of death sentences and executions have both declined after reaching peaks in the late 1990s). See also Executions by Year, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/executions-year (last visited May 12, 2014). 67. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (rejecting the proportionality challenge to the execution of juveniles); Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (rejecting the proportionality challenge to the execution of persons with intellectual disabilities). 68. Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005). 69. See Simmons, 543 U.S. at 559 (noting that, at that time, eighteen states barred the execution of juveniles). 202 AM. J. CRIM. L. [Vol. 41:2 non-homicidal, ordinary crime with death. 70 The Court's death penalty proportionality jurisprudence stands in stark contrast to its approach in noncapital cases, where the Court has shown remarkable reluctance to review the severity of noncapital sanctions. In the few noncapital proportionality claims that have reached the Court, the message has been unmistakable: states have essentially unfettered discretion to impose lengthy terms of imprisonment, even as applied to nonviolent offenders. 71 In the context of drugs, the Court summarily reversed a lower court decision that had found a forty-year sentence disproportionate as applied to an offender convicted of possessing nine ounces of marijuana with the intent to distribute. 72 The Court subsequently upheld an LWOP sentence as applied to an offender convicted of possessing a large quantity of cocaine. 73 In the recidivist context, the Court upheld a twenty-five year to-life sentence as applied to an offender who had attempted to steal three golf clubs. 74 The Court's proportionality jurisprudence reflects the implicit message of "death is different": imprisonment is not different and, thus, not worthy of close judicial scrutiny. Indeed, Justice Scalia, joined by then Chief Justice Rehnquist, explicitly called for a wholesale rejection of proportionality review on the noncapital side, though he would preserve a narrow proportionality principle in capital cases. 75 This position reflects the risk of a robust death-is-different approach: the potential for heightened review of capital cases to normalize noncapital sanctions and insulate them from review. Over the past four decades, the Court's sustained focus on American capital punishment has contributed to its relative indifference to the unprecedented harshness of prevailing incarceration policies, including the increased length of prison terms; the imposition of mandatory, severe terms even as applied to non-violent offenders; the withdrawal of discretionary outlets such as probation, parole, and good time; and the curtailment of rehabilitative programs. Thus, though the death-is-different principle has enabled capital reforms by supplying a built-in limiting principle, it has also stabilized noncapital practices by confirming that their "ordinariness" renders them less worthy of constitutional scrutiny. At the same time, capital reforms potentially can provide a blueprint for reforms on the noncapital side. The Court's recent proportionality decisions involving juvenile offenders illustrate this possibility, as the Court borrowed heavily from its capital jurisprudence in limiting the application of LWOP to juvenile offenders. The Court invalidated LWOP as an available punishment for non-homicidal juvenile
70. Kennedy v. Louisiana, 554 U.S. 407, 447 (2008) (declaring the death penalty should be reserved for ordinary crimes "that take the life of the victim"). 71. See infra text accompanying notes 72-74. 72. Hutto v. Davis, 454 U.S. 370, 374-75 (1982). 73. Harmelin v. Michigan, 501 U.S. 957, 995-96 (1991). 74. Ewing v. California, 538 U.S. 11, 30 (2003). 75. Harmelin, 501 U.S. at 995-96. 2014] Death Penalty and Mass Incarceration 203
offenders 76 and ruled that mandatory LWOP sentences cannot be imposed against juveniles convicted of homicide. 77 The Court emphasized the reduced culpability attributable to juveniles, invoking the same scientific evidence that supported its decision in Simmons exempting juveniles from the death penalty. 78 The Court also likened LWOP to the death penalty in its assertion of the "irreparable corruption" of the offender and the "irrevocable" forfeiture it imposes.79 Perhaps more surprisingly, the Court for the first time imported its requirement of "individualized sentencing" to the noncapital side by holding that juveniles facing LWOP for homicide must be afforded an opportunity to argue for a non-LWOP sentence. 8 0 Although the contours of the individualization right in this context remain murky, it is undoubtedly an important event for the Court to breach the capital/noncapital line by holding that at least some noncapital sentences may not be imposed in a mandatory fashion. The question remains, however, whether the Court's increasingly robust proportionality approach holds much promise for alleviating the punitiveness of our noncapital system. On the capital side, proportionality review not only exempts a significant number of offenders from the death penalty, including juveniles, persons with intellectual disabilities, and non homicidal offenders, but it also provides a roadmap for the eventual constitutional abolition of the death penalty. Many of the same considerations that supported particularized exemptions (declining death sentencing, declining executions, expert and professional opinion, international practices), support the proposition that the death penalty itself has become inconsistent with prevailing societal values. 81 But excessive punitiveness on the noncapital side, particularly the phenomenon of "mass incarceration," is the product of numerous intersecting policies, including law enforcement strategies, prosecutorial charging decisions, legislative practices (including sentencing ranges and mandatory minimums), and executive practices (limited parole, probation, and clemency). The proportionality argument, which carries so much potential with respect to the death penalty, is unlikely to do much more than permit limited attacks against discrete noncapital punishments, such as LWOP. Ultimately, the difference between the death penalty and large-scale incarceration is similar to the difference between smoking and obesity. The constitutional attack against the death penalty is premised on the assertion that the death penalty is unnecessary and our society would be best served
76. Graham v. Florida, 560 U.S. 48, 82 (2010). 77. Miller v. Alabama, 132 S. Ct. 2455, 2474 (2012). 78. Id. at 2463. 79. Id. at 2466. 80. Id at 2473-74. 81. Carol S. Steiker & Jordan M. Steiker, Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of ConstitutionalRegulation of Capital Punishment, 30 LAw & INEQ. 211, 242 43 (2012) [hereinafter Entrenchment]. 204 AM. J. CRIM. L. [Vol. 41:2
by abolishing it altogether. As with smoking, we can just kick the habit. But incarceration is more like food, with every society needing some level of imprisonment to deter crime and incapacitate dangerous offenders. Moreover, there remains wide disagreement about what a healthy diet of incarceration looks like. Is the proper baseline found in the relatively low rates of incarceration prevailing in places like the Netherlands and Switzerland-approximately 80 per 100,000-or in the relatively high rates found in places like Russia, Cuba, and the United States-ranging from 500 to 700 per 100,000?82 Even if the various jurisdictions within the United States committed themselves to reducing their incarceration rates, the path toward that end is not obvious; at least with obesity, we know that exercise and reduced calories will likely produce results. The perception that the United States currently has too much incarceration calls for complicated interventions. The unavailability of a full-scale proportionality attack on incarceration renders judicial remedies unlikely, leaving the problem in the generally unresponsive political arena. What makes death different, then, is not simply its severity or irrevocability. The death penalty is also different because of its amenability to meaningful judicial restriction, either in the form of robust proportionality limitation or abolition. Mass incarceration, on the other hand, calls for legislative and executive intervention. The worrisome possibility is that such intervention is less likely precisely because of judicial deference and inaction. The highly visible role of the Supreme Court in addressing capital punishment fuels the (mis)perception that all areas of criminal justice worthy of regulation are in fact subject to regulation through the courts. "Death is different" becomes not simply a reason for courts to defer to the other branches regarding incarceration policies; it also becomes a reason for those branches to abdicate their own responsibilities to police excessiveness.
V. Life After Death
As the prospect of death penalty abolition becomes stronger, it is worth considering the potential effects of abolition on the noncapital system. Would the end of the death penalty exert pressure to reform punitive noncapital policies? Or would abolition fuel a demand for more punitive noncapital sanctions? Of course, we have a natural experiment in the eighteen states that already abolished the death penalty. One striking but unsurprising fact is that jurisdictions without the death penalty tend to have much lower rates of incarceration compared to those with the death penalty. Seventeen of the eighteen noncapital states are among the lowest in terms of per capita incarceration, 83 and virtually all of the death penalty
82. Roy Walmsley, Core Publications, World Prison Population List, INT'L CENTRE FOR PRISON STUDIES (Nov. 23, 2013), http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/downloads/wppl_10.pdf. 83. Michigan is the exception. 2014] Death Penalty and Mass Incarceration 205 jurisdictions in the low-incarcerating group are extremely marginal in their use of the death penalty and are reasonable candidates for repeal or abolition in the near future. 85 North Carolina is the only significant capital jurisdiction with a relatively low per capita incarceration rate. 86 But that simply tells us that the jurisdictions which have chosen to withdraw the death penalty tend to be less prone toward high incarceration rates than jurisdictions that have retained it. National abolition, however, is likely to be "involuntary"-the product of a Supreme Court decision invalidating the punishment on Eighth Amendment grounds. The risk of backlash to such a decision might turn in part on the framing of the decision. If the Court were to invalidate the death penalty based on its diminished social utility in light of its infrequent use,8 7 the decision would resonate with pragmatic, smart-on-crime strategies that have led to the scaling back of incarceration in a number of states, including in active death penalty, high-incarcerating jurisdictions. Indeed, such a decision would mirror many of the recent successful "repeal" efforts, which have tended to focus on the disutility, rather than the immorality or excessive harshness, of the death penalty. 88 Along these lines, Maryland's Governor O'Malley, in signing the State Assembly's repeal bill, emphasized that the repeal sought to "eliminate[e] a policy that is proven not to work," rather than suggest that the Assembly had abolished an immoral practice. 89 If the Court, on the other hand, declared the death penalty inconsistent with prevailing standards of decency and a violation of human dignity, the risk of backlash would be greater and death penalty states might seek to preserve or enhance their punitive noncapital sanctions-similar to the rush to LWOP as an alternative punishment following Furman. Would judicial abolition necessarily stabilize LWOP? In jurisdictions that recently repealed the death penalty, the presence of LWOP strongly contributed to the repeal efforts, as reformers pointed to the declining need for capital punishment in light of the LWOP's incapacitating function with respect to dangerous offenders. 90 On the other hand, when the death penalty is no longer a penal option, political and legal challenges
84. Kansas, Washington, Nebraska, Utah, New Hampshire, Oregon, and Wyoming are the death penalty jurisdictions in this low-incarceration group. 85. See Prisoners in 2011, BUREAU OF JUSTICE STATISTICS 23 (2012), available at http://www.bjs.gov/content/pub/pdf/pll.pdf (providing imprisonment rates of sentenced prisoners by state). 86. Id. 87. See Furman v. Georgia, 408 U.S. 238, 312-13 (1972) (White, J., concurring) (proposing a similar argument that the lack of regular administration of the death penalty may be a reason in itself for abolition). 88. Cost and CapitalPunishment, supra note 55, at 155. 89. Governor Martin O'Malley, Statement on the Passage of Death Penalty Repeal in Maryland (Mar. 15, 2013), available at http://www.govemor.maryland.gov/blog/?p=8492. 90. See A Matter of Life andDeath: The Effect ofLife-Without-Parole Statutes on Capital Punishment, 119 HARV. L. REV. 1838, 1841-43 (2006) (discussing the relationship between abolition of the death penalty and the creation of LWOP sentences). 206 AM. J. CRIM. L. [Vol. 41:2 to LWOP would likely be invigorated. On the legal side, defense lawyers would likely argue for increased safeguards in the administration of what would then become the "uniquely severe" punishment. 9' The Court's language in the recent juvenile cases likening LWOP to the death penalty would certainly support further litigation efforts to impose restrictions on LWOP, 92 similar to the sort of regulations currently imposed on the capital side (narrowing the reach of LWOP to certain offenses and offenders; individualized sentencing prior to the imposition of LWOP; and heightened requirements for representation in LWOP cases). The abolition of the death penalty would likely have important consequences not just for discrete punishments such as LWOP, but for the wider criminal justice system. Much of the current salience of American criminal justice comes from the presence of capital punishment. The media gravitates toward cases in which death sentences are imposed and executions are scheduled. These cases often highlight issues relevant to the much larger but less dramatic pool of criminal cases, such as quality of counsel, the risk of punishing the innocent, prosecutorial misconduct, race discrimination, and so on. Moreover, capital cases serve disproportionately as vehicles for the legal treatment of such issues in the federal and state courts. Although all state prisoners are nominally afforded the right to litigate constitutional claims in federal habeas corpus, only death-sentenced inmates are statutorily afforded counsel in cases of indigency. 93 The same is true in most states regarding representation in state post-conviction proceedings. 94 And in many states, only death-sentenced inmates enjoy an appeal-as-of-right to the highest state court following conviction at trial.9 5 Capital adjudication thus serves something of an audit function in American criminal law by providing a small but important pool of cases raising not simply capital-specific issues but also drawing judicial attention to foundational, noncapital issues. Along these lines, the Court selected capital cases as the occasion for announcing its landmark decisions regarding the Sixth Amendment's requirements for effective representation96 and the disclosure responsibilities of prosecutors. 97 The disappearance of the death penalty from the American landscape could thus influence the visibility of American criminal justice practices more broadly. The symbolic and practical consequences could be significant, with the possibility that political and prudential discourse might fill the void caused by the erosion of constitutional discourse. With no cases on the brink of execution and fewer criminal cases before the highest
91. Furman, 408 U.S. at 305 (Brennan J., concurring) (noting that "death is a uniquely and unusually severe punishment"). 92. See supra text accompanying notes 76-80. 93. 18 U.S.C.A. 3599(a)(2) (West 2014). 94. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 11.071 2 (West 2013). 95. See, e.g., IN. CODE ANN. 35-50-2-9 (j) (West 2014) (discussing the State Supreme Court's reviews of death sentence cases); ARIZ. REV. STAT. ANN. 13-755 (West 2009) (same). 96. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 97. Brady v. Maryland, 373 U.S. 83, 86-87 (1963). 2014] Death Penalty and Mass Incarceration 207
American courts, particularly the United States Supreme Court, the focal point of American criminal justice would shift to non-judicial policymakers -legislatures, prosecutors, police, and other executive officials. Perhaps the debate about current levels of incarceration would become more vigorous, with the shadow of capital punishment and constitutional regulation removed from view.
VI. Conclusion
The United States is currently an outlier in its retention of the death penalty and in its unprecedented high rates of incarceration. Many observers see in these practices some defining aspect of American character -its populism, its rugged individualism, or its frontier mentality. What is often missed in the conversation about American criminal justice, however, is the relative newness of both of these phenomena. The United States did not become an outlier with respect to the death penalty until the latter half of the 2 0 th century. Throughout most of our history, the United States was at the forefront of capital reform and moderation, and, indeed, it would have been at the forefront again if judicial abolition of the death penalty had "stuck" in 1972 with Furman. Similarly, the United States was not strikingly punitive in its noncapital practices until the modern era. As with the death penalty, the United States was in some respects a leader in progressive reform-at times enthusiastically embracing rehabilitative and non-punitive approaches to criminal offenders-though our history is too complex and varied to permit broad or general characterizations. The point, though, is that our present moment of punitiveness in both capital and noncapital practices seems both contingent and fragile. The death penalty appears vulnerable to both political and judicial reform-even abolition. There is also a growing, though more muted, discontent with our noncapital system, particularly our high rates of incarceration. In some respects, similar political and social forces caused both the growth of the American death penalty and the expansion of our prisons. And as our crime rates fall and the politics of punishment no longer support costly punitive policies, we might expect a retreat along both dimensions. However, divergences between the death penalty and incarceration-in terms of costs, policy, political pressures, and legal doctrines-might ultimately produce different outcomes in the movement toward reform. Moreover, although similar forces influence both American incarceration and the American death penalty, these two practices interact in complicated ways with each other, which might place their futures on divergent tracks. w
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