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Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty

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Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty William & Mary Bill of Rights Journal Volume 28 (2019-2020) Issue 3 Article 3 March 2020 Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty Melanie Kalmanson Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the Criminal Procedure Commons Repository Citation Melanie Kalmanson, Steps Toward Abolishing Capital Punishment: Incrementalism in the American Death Penalty, 28 Wm. & Mary Bill Rts. J. 587 (2020), https://scholarship.law.wm.edu/ wmborj/vol28/iss3/3 Copyright c 2020 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj STEPS TOWARD ABOLISHING CAPITAL PUNISHMENT: INCREMENTALISM IN THE AMERICAN DEATH PENALTY Melanie Kalmanson* While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the sys- temic disarray of capital sentencing in the United States is a result of the U.S. Su- preme Court’s attempt to constitutionalize capital sentencing.1 This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia,2 has aided the Court in gradually narrowing capital punishment, as a result of the controlling “evolv- ing standards of decency” standard.3 Specifically, the Court has narrowed capital punishment with respect to who may be sentenced to death,4 how sentences of death are imposed,5 and how defendants are executed.6 As a result, this Article contends that the “evolving standards of decency” standard paves the path toward abolition. First, this Article shows that incrementalism has led to the current landscape of capital punishment in the United States.7 Then, the Article contends that an incre- mental approach to reaching abolition is inherent in the governing “evolving stan- dards of decency” standard and the most effective and realistic way of achieving abolition.8 Finally, the Article proposes the next steps in this approach to eliminating the death penalty in America.9 *JD, magna cum laude, Florida State University (2016). Melanie Kalmanson served as a staff attorney to former Justice Barbara J. Pariente of the Supreme Court of Florida from August 2016 until January 2019. After her clerkship, she entered private practice. Also since her clerkship, Melanie has written and published several pieces on the effects of the U.S. Supreme Court’s decision in Hurst v. Florida and the death penalty generally. 1 See CAROL S. STEIKER & JORDAN M. STEIKER, COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT 4 (2016). 2 See Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (per curiam). 3 Atkins v. Virginia, 536 U.S. 304, 311–12 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion)). 4 See, e.g., id. at 318; Ford v. Wainwright, 477 U.S. 399, 409 (1986). 5 See, e.g., Hurst v. Florida, 136 S. Ct. 616, 619 (2016). 6 See, e.g., Baze v. Rees, 553 U.S. 35, 62 (2008). 7 See infra Part III. 8 Atkins, 536 U.S. at 312; infra Part IV. 9 See infra Section IV.B. 587 588 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 28:587 INTRODUCTION .................................................588 I. EIGHTH AMENDMENT “EVOLVING STANDARDS OF DECENCY” FRAMEWORK ................................................591 II. WHAT IS INCREMENTALISM?....................................592 A. Evolving Jurisprudence ....................................592 B. Incremental Legislation ....................................595 III. HOW INCREMENTALISM HAS SHAPED THE CURRENT CAPITAL PUNISHMENT SYSTEM ....................................................597 A. Defendants Who Are Eligible to Be Sentenced to Death ...........600 1. Mental Incapacity.....................................600 2. Juveniles............................................603 B. How Defendants Are Sentenced to Death ......................604 C. How Defendants Are Executed ..............................610 IV. DEFINING THE ROUTE FROM HERE TO ABOLITION VIA THE “EVOLVING STANDARDS OF DECENCY”.....................................617 A. Why Abolition Is the Final Destination ........................618 B. Next Incremental Steps.....................................621 1. Defendants Eligible for Death............................621 2. Defendants Sentenced to Death...........................624 3. Execution Process .....................................625 a. Drugs Used in Lethal Injection........................625 b. Sick Inmates ......................................627 c. Length of Time on Death Row ........................630 d. Delayed Executions.................................633 CONCLUSION ...................................................634 INTRODUCTION Since capital punishment resurfaced after the U.S. Supreme Court’s landmark decision in Furman v. Georgia, invalidating capital sentencing across the United States in 1972,10 scholars and courts have contemplated the flaws in capital sentenc- ing systems across the country. Most scholars predict the United States will ultimately abolish capital punishment for one reason or another.11 Most scholars also agree that the point of abolition is getting closer and closer.12 Society seems to support this 10 408 U.S. 238, 239–40 (1972). 11 See, e.g., STEIKER & STEIKER, supra note 1, at 4; Austin Sarat et al., The Rhetoric of Aboli- tion: Continuity and Change in the Struggle Against America’s Death Penalty, 1900–2010, 107 J. CRIM. L. & CRIMINOLOGY 757, 758 (2017) (“Today the United States seems to be on the road to abolishing the death penalty.”). But see Ross Kleinstuber et al., Into the Abyss: The Uninten- ded Consequences of Death Penalty Abolition, 19 U. PA. J.L. & SOC. CHANGE 185, 186 (2016) (arguing that abolition will have unintended consequences that may be harmful to defendants). 12 See, e.g., David Von Drehle, The Death of the Death Penalty: Why the Era of Capital Punishment Is Ending, TIME (June 8, 2015), http://time.com/deathpenalty/ [https://perma.cc 2020] STEPS TOWARD ABOLISHING CAPITAL PUNISHMENT 589 sentiment, too, as public support for capital punishment continues to decline.13 This Article agrees that abolition is the ultimate destination for capital sentencing, even with a post-Kennedy Supreme Court; of course, the time it will take to get there is unclear and may be delayed as a result of the new makeup.14 While scholars seem united that abolition is the end point, their suggested paths for arriving there vary.15 For example, Carol and Jordan Steiker (the Steikers) have shown that the Supreme Court’s constitutionalization of capital sentencing produced unintended consequences on the path to abolition.16 They argue that the Court’s effort to impose constitutional safeguards in this context has exposed the impossibility of making the death penalty fair or principled, which will eventually lead to its de- mise.17 Others argue that abolition is the only solution to the arbitrary and capricious way in which defendants are sentenced to death, even after Furman.18 Specifically, for example, Carla Edmondson points to the “future dangerousness” consideration in many states’ capital sentencing schemes as affording juries far too much discre- tion such that the sentencing decision is unconstitutionally arbitrary.19 This Article makes a new contribution to this discussion, explaining that the Court’s constitutionalization of capital punishment, specifically through the Court’s Eighth Amendment “evolving standards of decency” framework, has fundamentally destabilized death-penalty jurisprudence. Through this framework, the Court set the stage for abolition by creating an incremental approach to abolition, under which the Court has already begun narrowing the death penalty. Whether deliberately or not, this Article argues that courts have incrementally narrowed the death penalty since /AR72-U537] (stating that the United States’ “troubled [capital-sentencing] system is creeping into view”). 13 See Gallup Poll—For First Time, Majority of Americans Prefer Life Sentence to Capital Punishment, DEATH PENALTY INFO. CTR. (Nov. 25, 2019), https://deathpenaltyinfo.org/news /gallup-poll-for-first-time-majority-of-americans-prefer-life-sentence-to-capital-punishment [https://perma.cc/J3VS-6T5N] [hereinafter Gallup Poll]; Public Opinion, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/facts-and-research/public-opinion-polls [https://per ma.cc/KSH4-EC8Z] (last visited Feb. 3, 2020). 14 This Article only addresses capital punishment in the United States. Therefore, it should be assumed throughout that discussion is of only capital punishment in the United States. Likewise, unless otherwise noted, “Court” refers to the U.S. Supreme Court. 15 E.g., Sarat et al., supra note 11, at 758 (“There are, of course, many possible explanations for the changing situation of capital punishment.”); see A.M. Kirkpatrick, The Abolition of the Death Penalty, 13 CRIM. L.Q. 308, 308–09 (1970) (“Society would be better served by . the abolition of the death sentence and the penalty of execution. Abolition will neither stop nor re- duce murder, but the evidence is that it will not result in any increase in the taking of human life. If this matter can be examined rationally and dispassionately there are few who will not agree that the death penalty should be completely abolished and
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