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A Deterrent Or a Catalyst for Death Penalty Abolition William W

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A Deterrent Or a Catalyst for Death Penalty Abolition William W Cornell Journal of Law and Public Policy Volume 17 Article 1 Issue 3 Summer 2008 American Procedural Exeptionalism: A Deterrent or a Catalyst for Death Penalty Abolition William W. Berry III Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Berry, William W. III (2008) "American Procedural Exeptionalism: A Deterrent or a Catalyst for Death Penalty Abolition," Cornell Journal of Law and Public Policy: Vol. 17: Iss. 3, Article 1. Available at: http://scholarship.law.cornell.edu/cjlpp/vol17/iss3/1 This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. AMERICAN PROCEDURAL EXCEPTIONALISM: A DETERRENT OR A CATALYST FOR DEATH PENALTY ABOLITION? William W. Berry III* INTRODUCTION ............................................. 481 I. CONCEPTS OF AMERICAN CULTURAL EXCEPTIONALISM ....... ..................... 484 II. AMERICAN PROCEDURAL EXCEPTIONALISM ...... 489 A. THE JURY SYSTEM .................................. 490 B. THE WRIT OF HABEAS CORPUS ...................... 494 C. THE SIXTH AMENDMENT RIGHT TO COUNSEL ........ 496 III. RELATIONSHIP BETWEEN CONFIDENCE IN THE PROCESS OF RETENTION AND ADMINISTRATION OF CAPITAL PUNISHMENT IN AMERICA ........... 499 A. THE UNITED STATES SUPREME COURT ............... 499 1. McGautha v. California ........................ 500 2. Furman v. Georgia............................. 501 3. Gregg v. Georgia .............................. 502 4. Woodson v. North Carolina..................... 504 5. The Post-FurmanEra .......................... 505 B. STATE LEGISLATURES ............................... 509 C. GOVERNORS .......................................... 510 IV. AMERICAN PROCEDURAL EXCEPTIONALISM: DETERRENT OR ABOLITION OF THE DEATH PENALTY IN THE UNITED STATES? ................ 511 CO N CLU SIO N ................................................ 513 INTRODUCTION "[T]he Americans . are nevertheless extremely open to compassion. In no country is criminal justice adminis- tered with more mildness than in the United States. Whilst the English seem disposed carefully to retain the bloody traces of the Middle Ages in their penal legisla- * BA, University of Virginia; JD, Vanderbilt Law School; D.Phil Candidate, University of Oxford. The author would like to thank Carolyn Hoyle for her help and encouragement on this Article and the editors of the Cornell Journalof Law and Public Policy for all of their hard work on the piece. All errors are my own. 482 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:481 tion, the Americans have almost expunged capital pun- ishment from their codes." -Alexis de Toqueville' The term "American exceptionalism," as coined by de Tocqueville in the 1830's, has referred historically to "the perception that the United States differs qualitatively from other developed nations, because of its unique origins, national credo, historical evolution, and distinctive politi- cal and religious institutions."'2 For some, the death penalty in the United States is a morally required institution, and its current under-utilization threatens the functioning of a free and just society. 3 For others, the use of the death penalty in the United States is an abhorrent continuation of government-sanctioned human rights violations inconsistent with America's overall mission of advancing the cause of liberty and human 4 rights throughout the world. Given that most western democracies have abolished the death pen- alty,5 to what extent are the retention and administration of the death penalty in America "exceptional," that is, a direct result of the unique characteristics of the United States captured in de Tocqueville's concept ' 6 of "American exceptionalism?" I ALEXIS DE TOQUEVILLE, 2 DEMOCRACY IN AMERICA 203 (1862); see also STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 113 (2002) (noting the astonishment of Europeans at the various movements to abolish the death penalty in the United States in the nineteenth century). 2 Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1481 n.4 (2003). Sociologists such as Louis Hartz, Werner Sombart, and Seymour Lipset further devel- oped the modem conception of American exceptionalism, using it to explain the "strength of 'the liberal tradition' and the weakness of working class radicalism in the United States." David Garland, CapitalPunishment and American Culture, 7 PUNISHMENT & SOC'Y 348, 348 (2005). 3 See, e.g., Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-on Sentence, 46 CASE W. RES. L. REV. 4, 4 (1995) ("Whatever purposes the death penalty is said to serve- deterrence, retribution, assuaging the pain suffered by victims' families-these purposes are not served by the system as it now operates."). 4 See, e.g., Roger Hood, The Death Penalty: The USA in World Perspective, 6 J. TRANS- NAT'L L. & POL'Y 517 (1997) (noting that given the "common commitment to liberty and human rights" among the United States and western nations, "many of us in Britain and in Europe generally are puzzled, to say the least, by the American commitment to the death penalty and to its practice of execution"). 5 See ROGER HOOD, THE DEATH PENALTY: A WORLD-WIDE PERSPECTIVE 11 (1996) (providing a world-wide abolition survey). 6 "Exceptional" has three general meanings: rare, superior, or differing from the norm. In this context, exceptional means differing from the "norm" of abolition in Europe by contin- uing to administer capital punishment. The term "American exceptionalism" here shall simply refer to the cultural, economic, political, and other characteristics of the United States that distinguish it from European states, with the caveat that the term has been used in many differ- ent contexts with a variety of meanings. See Koh, supra note 2, at 1482 (stating that "the term 'American exceptionalism' has been used far too loosely and without meaningful nuance" and describing various ways in which the term has been used). 2008] AMERICAN PROCEDURAL EXCEPTIONALISM As explained below, this Article describes the hypothesis of cultural exceptionalism and its attempt to explain the retention of the death pen- alty in America.7 The Article ultimately concludes, however, that the persistence of the death penalty in the United States is best explained not by cultural exceptionalism, but instead by procedural exceptionalism, de- fined as the unique American belief in its legal process. This American exceptionalism of process validates the expression of the impulse toward retribution commonly found in western nations. 8 In other words, the per- ceived fairness of the process affirms the retributive notion that the exe- cution of a murderer achieves justice for society. 9 When the American death penalty process is shown to be unjust, arbitrary, or discriminatory in its administration, the defect in the process serves as a check on the retributive impulse. The result is a move to halt the use of the death penalty. Thus, the retention and administration of the death penalty in the United States rests upon a belief in the fairness of the American judicial process in capital punishment cases. This belief in the fairness of judicial proceedings provides justification for the expres- sion of the retributive impulse. Part I of this Article explores the hypothesis of American cultural exceptionalism as it relates to the death penalty. Part II defines Ameri- can procedural exceptionalism and considers three procedural ap- proaches foundational to procedural exceptionalism: the jury system, the writ of habeas corpus, and the right to counsel under the Sixth Amendment. Part III highlights the correlation between procedural exceptional- ism and the use of the death penalty in America since Furman v. Geor- gia.10 Although not exhaustive, this section attributes many of the shifts 7 For an interesting exploration of the use and retention of the death penalty from an empirical and international perspective, see David F. Greenberg & Valerie West, Siting the Death Penalty Internationally,33 LAW & Soc. INQUIRY 295 (2008) (finding that the retention of the death penalty is rooted in a country's legal and political systems, and is influenced by its religious traditions). 8 See generally JEFFRIE G. MURPHY, RETRIBUTION, JUSTICE, AND THERAPY (1979). 9 It is not clear, however, that retribution alone is a sufficient justification for the use of capital punishment under the Eighth Amendment's prohibition against cruel and unusual pun- ishment. See Furman v. Georgia, 408 U.S. 238, 344 (1972) (Marshall, J., concurring) ("It is plain that . punishment for the sake of retribution was not permissible under the Eighth Amendment. This is the only view ... if the 'cruel and unusual' language were to be given any meaning. Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But, the fact that some punishment may be imposed does not mean that any punishment is permissible. If retribution alone could serve as a justification for any particular penalty, then all penalties selected by the legislature would by definition be accept- able means for designating society's moral approbation of a particular act. The 'cruel and unusual' language would thus be read out of the Constitution .... "). 10 No executions occurred in the
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