"Why a Fair Death Penalty May Never Be Fair," is Andrew Cohen's latest post at the Atlantic.
The biggest news of 2013 about the death penalty in America did not come from a court of law or from one of the nation's death rows. It did not come from the public pronouncements of earnest conservatives who one after the other came out in favor of abolition. It came instead from a Gallup poll released in October that revealed that public support for capital punishment is at its lowest ebb since November 1972—at 60 percent.
That date is significant. Ten months earlier, in January 1972, the United States Supreme Court had invalidated the nation's capital punishment statutes (but not the death penalty itself) in Furman v. Georgia. The resulting public backlash, Evan Mandery writes in his excellent new book about the topic, helped push the Court to reverse course. By 1976, under the thin guise of "reformed" capital laws, and under political pressure after an increase in crime rates, the justices brought back the death penalty in Gregg v. Georgia.
That November 1972 polling figure from Gallup—57 percent approved the death penalty that month-- was but a brief marker on an upward trail that saw support for capital punishment reach 80 percent in 1994. But it has descended ever since. There are many reasons for the drop.
Although the individual protections contained in the Bill of Rights never should be dependent upon the whims and caprices of majority rule, public opinion and the death penalty have always been inseparable. Mandery's work, titled A Wild Justice: The Death and Resurrection of Capital Punishment in America, is an important reminder of that link. There is no other way to say it but this: The Supreme Court 40 years ago blinked on capital punishment—blinked because of the public outcry at the very notion of eliminating the death penalty by court order rather than by the political process.
And in blinking, in their zeal to cobble together a majority that would permit executions, the justices who gave us our modern capital jurisprudence failed to adequately articulate a legal theory that supports the death penalty in the context of the Eighth Amendment's protections against "cruel and unusual" punishment. Supporting a practice that embodies the most irreversible act our government can do in our name, this is a baffling vacuum in constitutional law. And yet it persists, 40 years after the Court was supposed to have "fixed" the nation's capital laws.
Also available, more from Andrew Cohen.