Thursday, March 19, 2009

Constitutional Consequences of New Mexico's Ban on the Death Penalty?

CNN reports that Governor Bill Richardson of New Mexico signed a bill today "repealing the death penalty in his state." Part of the impetus to sign the bill related to personal conviction; as Governor Richardson explained to CNN:
Throughout my adult life, I have been a firm believer in the death penalty as a just punishment -- in very rare instances, and only for the most heinous crimes. I still believe that. . . .
Nevertheless, Governor Richardson said he ultimately signed the bill because he "do[es] not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crimes," adding that he was bothered by the fact that minorities are "over-represented in the prison population and on death row." His action has sparked praise from the American Civil Liberties Union who said in an official statement:
Gov. Richardson’s decision today to sign the bill abolishing the death penalty in New Mexico is a historic step and a clear sign that the United States continues to make significant progress toward eradicating capital punishment once and for all. Gov. Richardson’s courageous and enlightened decision should send a powerful message to other states, governors and Americans about the need to take a hard look at our error-prone, discriminatory and bankrupting system of capital punishment. It is a system incapable of ensuring that innocent lives are not unjustly taken. It is a system plagued by racial, economic and geographic discrimination. And it is a system that police chiefs, criminologists and statistical experts around the country agree does not deter crime. Gov. Richardson deserves enormous credit for acting in the best interests of the people of his state and the people of this country.
I wonder if this might open up new avenues to the Supreme Court for death row inmates to argue against the constitutionality of the death penalty. The Court has previously held that the death penalty does not violate the Eighth Amendment's prohibition on "cruel and unusual punishment." Gregg v. Georgia, 428 U.S. 153 (1976). As with all of its Eighth Amendment jurisprudence, see Trop v. Dulles, 356 U.S. 86, 101 (1958) ("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."), its decision was predicated on "evolving standards of decency." Gregg, 428 U.S. at 173. Recently, in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), the Court held that the imposition of the death penalty for the rape of a child was unconstitutional--at least where the life of the victim was not taken--partly because only five states had laws punishing such conduct on the books. Those five states were not enough to show "evidence of a national consensus with respect to the [imposition of the] death penalty for child rapists." Id. at 2653. Following this logic with respect to future challenges, if other states follow New Mexico's lead in banning capital punishment altogether--which seems possible given that roughly 14 other states have now banned the death penalty--the Court may choose to revisit its conclusion that the death penalty comports with the Eighth Amendment.

It is unclear, of course, how many state pronouncements against the death penalty would be necessary to establish that the penalty offends our "evolving standards of decency." Moreover, one has to wonder how the possibility of habeas relief would, if at all, influence the Court’s decision to overrule its precedent on capital punishment. Although collateral attacks on state court judgments are, as Craig noted, difficult to successfully lodge, a pronouncement that the Eighth Amendment prohibited the death penalty would be made retroactive to all pending death penalty prisoners notwithstanding Teague v. Lane, 489 U.S. 288 (1989), which generally requires habeas petitioners to depend on the law existing at the time their decision went final. See Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (noting that one of two exceptions to Teague retroactivity “should be understood to cover . . . rules prohibiting a certain category of punishment for a class of defendants. . . ."). Decisions “on the merits,” and thus within the scope of 28 U.S.C. § 2254(d)(1) would likely also be subject to collateral attack assuming (as I do) that the applicable Teague exception would be imputed to cover the statute.

The Court should not refrain from holding the death penalty unconstitutional simply because it could upset many state court judgments, but one nevertheless has to wonder if the practical ramifications of such a decision would somehow influence the Court's decision to reconsider its precedent.


  1. Nima & Co.:
    There are a couple of points I would like to raise.

    (1) The decision to abolish capital punishment is not costless. As a practical matter, the availability of capital punishment adds to the efficiency of plea deals in many cases. I personally know of a case about to go to trial that may not have even been researched and/or investigated had the offender not feared the potential capital consequence of being found out later. Because of CP, he has attempted to plead for life while serving two separate life sentences (this plea was rejected by the DA). {I am willing to field reasonable questions at my email address should anyone have any.}

    (2) Assuming, for the sake of argument, that the Court did decide to rule Capital punishment completely unconstitutional, one must consider the consequences to the abolitionist movement. As a parallel, I recall an opinion by a plurality of the Court (See: Fronteiro v. Richardson but it was written by Brennan & Powell) regarding gender-discrimination. The Court reasoned that since the Equal Rts. Amendment was very close to being ratified, it could expedite the process by making it a Due Process/Equal Protection issue. By doing so, the members of the remaining states needed for ratification lost any and all interest in passing the law; as a result, a much more comprehensive Constitutional Amendment was aborted by the Court's impatience. Likewise, if the Court were to hold the Death Penalty unconstitutional (which it won't seeing as it just affirmed its constitutionality in the recent Kentucky decision. see: it might have the unintended effect of short-circuiting the abolition movements in many of the states, which, in turn may allow supporters of CP to rebuild. {I didn't like physics much, but Newton was right: Every action has an equal & opposite reaction}

    (3) I fail to see why many people find CP to even be a contentious issue, given the numerous safeguards that states and the Feds have created. Sure, innocent people may have been killed-- I'm not denying or trying to mitigate that in the least; but many many more innocent people have been murdered and CP plays a significant role as a deterrent. (see: "The Birthday Party"

  2. @ Master Shake--

    Great, thoughtful reply. I don't have time for a full response, but I do want to address your second point regarding the Supreme Court making the death penalty unconstitutional.

    I agree it's unlikely they would do so now, but if the abolitionist movement continues to pick up steam and it got to a point where a vast majority of states banned the death penalty it would be a tough sell to hold otherwise--assuming they granted cert, of course.

    I think it's an interesting point about how so holding could curtail the abolitionist movement, but--practically speaking--what would it matter if the death penalty was unconstitutional on federal law grounds?

  3. Master Shake,

    I think you make some good points. I must agree with Craig on the abolitionist question, however. If we accept the premise that the death penalty is more harmful than helpful (which you do not), I don't understand how making it unconstitutional would "deter" the state abolitionist movement, unless you are referring solely to getting other people to support the ban who do not already. But, the goal for supporters of the ban is not necessarily to get everyone on board with their views; the goal is to ban the death penalty.

    I appreciate, once again, your detailed commentary.

  4. It is axiomatic that once a person/group accomplishes a goal (regardless if it is by Court ruling or statutory enactment), their incentives and desires shift; once the Abolitionists (in our example) convince the Court to abolish the death penalty as it currently exists, they no longer have the same incentives that they do now. While they may be willing to fight hard to keep it abolished, they cannot, by definition, have the same "hunger" they did when they wanted it abolished.

    The Supporters (for lack of a better term) then become the party with the incentives to try and get CP back on the books. Ceteris Paribus, I like the Supporters in such a political dogfight: The American public overwhelmingly supports CP, even with its perceived warts (see:

  5. P.S. I totally recommend reading The Birthday Party if anyone gets a chance. It's a quick read and it is a fascinating story.

  6. Oh Jeff, please take that somewhere else.

  7. Jeff,

    Please provide one legal basis by which the Court could hold "restrictions that exist on executions unconstitutional." I see no logic upon which this inane supposition could stand.

    I'm the guy who agreed with you on the AIG thing, by the way, so don't just attack my "crazy liberal bias."

  8. Um, Jeff... let's see. How should I put this? We weren't talking about liberal biases, etc., at all; we were talking about hypothetical situations and potential outcomes with CP being the core issue.

    I support CP whole-heartedly, and, from my experience, it works; but that doesn't mean I can demand/force/bully others into agreeing with me.

    In conclusion: Please shut the fuck up about this until you have something intelligible (let alone, intelligent) to say.

  9. The bottom line is that I am not tyring to force people to agree with me. I am just stating facts. CP works, and it is immoral not to have can I justify paying taxes to a government who chooses to let murderers live freely...and in addition, i have to pay to feed the murderers, give them cable TV, and workout facility. There is something wrong with that

  10. Don't look now, ladies & gents-- Jeff showed that he isn't some conservative nut-case. I concur with every single one of those concerns. It's like that one scene in the Wizard of Oz... "well, why didn't you say so? that's a horse of a different color" (

    There is certainly something wrong with all of that.

  11. Jeff,

    I think your policy argument is based on a fallacy. In fact, I'm pretty sure capital punishment ultimately has a higher economic cost than life imprisonment. Why, you ask? Simply put, the appeals process is insanely expensive.

  12. Josh:
    It is important to make "apples-to-apples" comparisons here: what's the data comparing the costs of appeals for CP-states vs. the costs of appeals for non-CP states? The assumption in your assertion is that the appellate process for non-CP states is relatively cheap (i.e. prisoners on life sentences appeal less than those on death row). I don't think that holds up neither as inherently true nor empirically true. Do you think you can find the data on this?

    As a side note: I am always amused by the Abolitionists who claim "but it would be cheaper" if we got rid of CP. As my old econ. professors used to say: "Compared to what? According to whom?" It's not as if the prisoner who gets life w/o parole says "I'm not going to appeal this/file habeas petitions because, while I'm stuck here forever, at least I won't get gassed/shocked/injected." Moreover, many victims' families find CP to be the only comfort they have when they lose their loved one. Whether that is right or wrong is irrelevant: it is what it is.

  13. MasterShake;

    The statistics are rather convincing. Here are just a few:

    - According to Duke University, the death penalty costs North Carolina $2.16 million per execution OVER the costs of sentencing murderers to life imprisonment.

    - In Indiana, the total costs of capital punishment exceed the complete costs of life without parole by 38%, even assuming that 20% of death sentences are overturned and reduced to life.

    - Enforcing the death penalty costs costs Florida $51 million a year ABOVE what it would cost to punish all first-degree murderers with life in prison w/o parole.

    There are, to be sure, factors to consider other than economic cost. But, arguing in favor of capital punishment b/c it saves taxpayers money is just plain wrong. The data does not support such a conclusion.


Note: Only a member of this blog may post a comment.