Death Penalty Drugs: A Prescription That\u27s Getting Harder to Fill

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives? Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment). So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study commissions, and the like. But there’s another phenomenon that has quietly wreaked havoc in the administration of the death penalty in the United States: the dearth of death penalty drugs. Here’s the backstory

Passive-Aggressive Executive Power

My contribution to the 2013 Constitutional Law Schmooze poses a question about the downside of executive power, at least in the enforcement context. If executive power to enforce the law presupposes the duty to use it, what happens when the executive branch would rather not? Perhaps reframing the question will help. What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (“DOMA”) have in common, besides the letter “d”? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind—and at the outset, I set aside the “Just say no” response, which is an exercise of executive power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, “Fine, I’ll do it, but let’s just be clear—I don’t want to.” In the discussion that follows, I first flush out these responses with my five examples—the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of executive power

The Doctrinal Side of Majority Will

What is the Supreme Court\u27s relationship with public opinion? Barry Friedman\u27s answer in The Will of the People scours some 200 years of history to provide a distinctly political view of the Court, and the story he tells is compelling. Yet it is also incomplete. The Will of the People presents a largely external account of the law; it sees the influence of majority will as a force that moves outside the jurisprudence we lawyers spend so much of our time researching, writing, and talking about. By this account, there is what the Justices say is driving their decisionmaking-legal doctrine-and then what, consciously or subconsciously, is really going on. As Friedman has explained elsewhere, The Justices don\u27t tend to give speeches much less write opinions saying \u27we are following public opinion. Or do they? In this symposium contribution, I contend that Friedman is right; Supreme Court decisionmaking is inextricably bound to majority will. But he is more right than he knows, or at least more right than The Will of the People shows. In his focus on an extralegal account of Supreme Court decisionmaking, Friedman misses the best evidence yet of the Court\u27s majoritarian leanings: its widespread use of explicitly majoritarian doctrine. Sometimes-not all the time or even most of the time, but sometimes-the influence of majority will is so strong that it seeps into the legal framework for deciding questions of constitutional law. On these occasions, the Justices do write opinions that say we are following majority will. By and large, the phenomenon simply has gone unnoticed

Furman Fundamentals

For the first time in a long time, the Supreme Court\u27s most important death penalty decisions all have gone the defendant\u27s way. Is the Court\u27s newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court\u27s ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court\u27s ability to withstand majoritarian influences, Furman teaches the opposite--that even in its rnore countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court\u27s role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court\u27s help may do more harm than good. If the past truly is a prologue, Furman portends that the Court\u27s current interest in scrutinizing the death penalty will not last forever. Like the fairweather friend, the Court\u27s protection will likely be there in good times but gone when needed the most

Lessons Learned from the Evolution of Evolving Standards

In the discussion that follows, I explore the evolution of the evolving standards doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of evolving standards, questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the evolving standards doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death penalty arena will reflect evolving standards of decency whether the doctrine says so or not

\u3ci\u3eFurman\u3c/i\u3e Fundamentals

For the first time in a long time, the Supreme Court\u27s most important death penalty decisions all have gone the defendant\u27s way. Is the Court\u27s newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court\u27s ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court\u27s ability to withstand majoritarian influences, Furman teaches the opposite—that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court\u27s role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court\u27s help may do more harm than good. If the past truly is a prologue, Furman portends that the Court\u27s current interest in scrutinizing the death penalty will not last forever. Like the fairweather friend, the Court\u27s protection will likely be there in good times but gone when needed the most

\u3ci\u3eFurman\u3c/i\u3e Fundamentals

For the first time in a long time, the Supreme Court\u27s most important death penalty decisions all have gone the defendant\u27s way. Is the Court\u27s newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court\u27s ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court\u27s ability to withstand majoritarian influences, Furman teaches the opposite—that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court\u27s role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court\u27s help may do more harm than good. If the past truly is a prologue, Furman portends that the Court\u27s current interest in scrutinizing the death penalty will not last forever. Like the fairweather friend, the Court\u27s protection will likely be there in good times but gone when needed the most

The Unexceptionalism of Evolving Standards

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the evolving standards of decency doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court\u27s reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court\u27s majoritarian tendencies, the most powerful evidence of the Court\u27s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine