The Constitution and Capital Sentencing: Pursuing Justice and Equality

Equal Justice and The Death Penalty: A Legal and Empirical Analysis. By David C. Baldus, George Woodworth and Charles Pulaski, Jr. Boston: Northeastern University Press. 1990. Pp. Vii, 689. $65.0

The Eighth Amendment as a Warrant Against Undeserved Punishment

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction imposed represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishment they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules, and mandatoryminimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. This Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I aim to clarify both what the Eighth Amendment reveals about the kind of people we would like to be and why the Supreme Court is not able to force us to live up to that aspiration

\u3cem\u3eFurman\u3c/em\u3e\u27s Mythical Mandate

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court\u27s regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the Court has struggled to fulfill. However, this Article shows that consistency is implausible as an Eighth Amendment aspiration and that the Court has never seriously pursued consistency after Furman. The Court has focused almost entirely on promoting expansive individualized consideration of capital offenders, a goal at odds with consistency. The problem is that the Court\u27s continuing rhetorical commitment to Furman\u27s mythical mandate has cast doubt on the value and legitimacy of individualization and has diverted attention from efforts to clarify why individualization serves Eighth Amendment ends. In defense of the doctrine, the Article provides an Eighth Amendment theory for individualization--one founded on avoiding retributive excess. The Article also shows, however, that this theory calls for reforms that could further assure that only the deserving receive the death penalty

Repudiating the Narrow Rule in Capital Sentencing

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has since Furman v. Georgia about the problem of inequality that has continued to pervade capital selection. If the Court remains unwilling to strike down unequal death-penalty systems, it should acknowledge the inequality and explain that the problem addressed by the Eighth Amendment is not inconsistency but retributive excess

Moving Beyond Miranda: Concessions for Confessions

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, intelligent, and voluntary decisions. States could promote these outcomes by providing valuable sentencing concessions to those who confess

Capital-Sentencing Law and the New Conservative Court

With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current limitations become a distinct possibility. And that is where we are today. This essay aims to show that the true core of what the Eighth Amendment demands is not consistency but a “deserts-limitation”—a requirement that no person receive the death penalty who does not deserve it. That is a goal on which even conservatives could agree. It is also a goal that many of the existing death penalty doctrines help to fulfill. Thus, this essay aims to explain why a conservative Court should not repudiate the heart of existing Eighth Amendment jurisprudence on capital selection

Constitutional Clause Aggregation and the Marijuana Crimes

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. Neither the Cruel and Unusual Punishment Clause, the Fourth Amendment, the Due Process Clause nor the Equal Protection Clause can justify such a protection, and that would remain true even when most states have legalized. But, could another theory justify this constitutional right? A second important and topical legal question concerns when two or more rights-based clauses in the Constitution can combine to invalidate government action that none of the clauses could disallow on their own. The Supreme Court generally has declined to recognize multiple-clause rights. But, in the past, it occasionally seemed to endorse the approach. And, recently, in Obergefell v. Hodges, it gave new impetus to the idea by declaring the existence of a “synergy” between the Due Process and Equal Protection Clauses that it asserted had helped explain its acknowledgment of certain rights previously and that purportedly helped lead, in the case at hand, to its acknowledgment of a right to same-sex marriage. In consequence, enthusiasm has again intensified over the notion that rights-based clause aggregation can expand constitutional protections. But, is clause aggregation only rhetoric offered to justify something the Court would have done anyway under a single clause or can it sometimes really matter? And, if so, when? This Article puts both problems in play by asking this question: After a super-majority of states legalize, could multiple clauses together reveal a constitutional right to engage in certain recreational marijuana activities? The Article answers with cautious affirmance: Clause aggregation could help justify such a constitutional right, in tightly limited circumstances. But, the Article also notes that many of the contours remain undeveloped in the Supreme Court’s jurisprudence on rights-based clause aggregation, complicating any effort to predict whether and how the Justices would apply it in the future to recreational marijuana

Atoning for Dred Scott and Plessy While Substantially Abolishing the Death Penalty

Has the Supreme Court adequately atoned for Dred Scott and Plessy? A Court majority has never confessed and apologized for the horrors associated with those decisions. And the horrors are so great that Dred Scott and Plessy have become the anti-canon of constitutional law. Given the extraordinary circumstances surrounding the Court’s historical complicity in the brutal campaign against African Americans, this Article contends that the Court could appropriately do more to atone. The Article asserts that the Court could profitably pursue atonement while abolishing capital punishment for aggravated murder. The Article shows why substantial abolition of the capital sanction would constitute a relevant response to the Court’s past complicity in the long, violent campaign for white supremacy. The Article also explains why substantial abolition, with a confession and apology, would involve little social cost and could send a valuable message. As for how our racial history could help justify substantial abolition in the language of the Constitution, the Article proposes an approach suggested by decisions in which the Court has combined two or more clauses to justify an outcome that neither clause would authorize on its own. In the death-penalty context, the Court could aggregate the prohibition on cruel and unusual punishments and the command of equal protection. Under that approach, the Court need not find a national consensus against death-penalty systems, nor must it find purposeful discrimination. The Court could rely, instead, on the inability to refute that those systems are remnants of the judicially authorized pursuit of white supremacy. The nature of that conclusion would also distinguish death from other punishments and thereby solve some problems that the Court has identified with abolition using a single-clause methodology. The arguments for vigorous Supreme Court atonement and for limiting the death penalty connect, although they stand apart. The Court could look for a better context than the death penalty to apologize for Dred Scott and Plessy, but a better context is hard to fathom. Likewise, the Court could justify, without apology, restricting the penalty based on our judicially sanctioned quest for white supremacy, but an apology for Dred Scott and Plessy would add a healing message. The actions are synergistic. The Court could achieve something special through the mutually-reinforcing symbolism that could come with simultaneous restriction of the death sanction and robust atonement for Dred Scott and Plessy

A Sixth Amendment Inclusionary Rule for Fourth Amendment Violations

Early in the tenure of Chief Justice Roberts, a five-Justice majority of the Supreme Court signaled that it was ready to consider eliminating the exclusionary rule as a remedy for Fourth Amendment violations. The central concern was that, even after decades of limiting the rule through new exceptions, it purportedly lacked utility in balancing protections against the competing dangers of crime and police abuse, the only rationale on which it has been grounded in the modern era. That existential reappraisal never openly occurred, and the exclusionary rule, in further reduced form, still survives. Yet, given the Court’s recent conservative shift, there is reason to think that such a fundamental reassessment could now happen. On that view, the methods by which the Court could eliminate the exclusionary rule become important, as do some central normative questions that abolition would raise: In a world without court-ordered suppression, how, if at all, should the Constitution protect criminals against government searches and seizures? And how should it balance protection for law-abiders between the competing dangers of crime and police abuse? For the sake of exploring the implications, this Article assumes that the Court will, indeed, eviscerate the exclusionary rule as a judicially mandated remedy. The Article discusses four routes that the Court could follow. All of them, like the exclusionary rule, have defects. However, one stands out for protecting law-abiders somewhat from police overreach while only modestly protecting criminals and for resting on a constitutional grounding. The Court could substitute for the exclusionary rule an “inclusionary rule” based on the right to jury trial in the Sixth Amendment