Atkins v. Virginia and Ring v. Arizona -- the U.S. Supreme Court's recent decisions restricting who can receive the death penalty and who can impose it -- are important for all sorts of reasons, but none quite as central as the fact that the rulings themselves aren't so important at all. At least not in the sense of importance that most Americans generally attach to Supreme Court rulings: These were not daring thunderbolts of judicial intervention aimed from on high, but rather decisions dictated, in many ways, from below. To be sure, for members of the anti-death-penalty movement, Atkins and Ring are confirmation from the top of the legal system that things are moving slowly in their direction. But evidence of such progress has been playing out in the court of public opinion for quite some time. Atkins and Ring -- which, respectively, ban the execution of the mentally retarded and stipulate that only juries, not judges, can impose the death penalty -- were merely symptoms that something in the politics of capital punishment has been changing in America. And perhaps still is.
To understand why, you have to go back to April 22, 1987, when the Court rebuffed the last massive legal challenge to the death penalty's constitutionality. In McCleskey v. Kemp, the NAACP Legal Defense Fund had attempted to use an extraordinarily comprehensive study of Georgia's death penalty to demonstrate that the system was racially biased based on whether a victim (not a defendant) was black or white. The Court's 5-to-4 ruling was a devastating loss for abolitionists, and one that would only become more bitter with the passage of time. For one thing, Justice Lewis Powell, who wrote the majority opinion and provided the swing vote in McCleskey, would tell his biographer four years later that he regretted the ruling. And as Jack Boger, the NAACP's lawyer in McCleskey, describes it, America's capital punishment system seemed to become frozen in ice for the next eight to ten years -- with any potential for reform or reconsideration locked, immobile, beneath the surface of a hostile Supreme Court and an indifferent American public.
What McCleskey made clear was that there would be no repeat of Furman v. Georgia, the sweeping 1972 decision that briefly declared a national death-penalty moratorium. Before McCleskey, says Herbert Haines, a professor of sociology and anthropology at the State University of New York College at Cortland who has studied the anti-death-penalty movement, an assumption existed among capital punishment opponents that "the lawyers would handle this." After 1987, he explains, the opponents were forced to acknowledge that "there's no way we're going to get a second Furman decision." Their post-McCleskey legal strategies would have to be supplemented with more traditional means of political mobilization. And they would have to seek more incremental victories.
Fifteen years later, there is no better testament to capital-punishment opponents' dramatic reversal of fortune than the fact that many of them are calling this the most hopeful moment since April 21, 1987 -- the day before the Supreme Court ruled in McCleskey. A few are even talking cautiously about the possibility of a second Furman, albeit years down the road. The reason for this optimism has less to do with the Court -- which remains both constitutionally cautious and ideologically unpredictable -- than with an increased willingness on the part of voters and politicians to question whether capital punishment can ever be made foolproof. During the first half of the 1990s, according to the Gallup Poll, support for the death penalty hovered between 76 percent and 80 percent; during the last two years, that number is down to between 65 percent and 72 percent. "Hope springs from broader trends," says Douglas Berman, an associate professor at Ohio State University College of Law. "Not necessarily Court trends."
Ironically, the seeds of this reversal may have been sown in the setbacks of the 1980s and early 1990s. As courts lowered barriers to executions, the machinery of death accelerated -- especially in places like Texas -- and the number of opportunities for mistakes or close calls or sleeping defense lawyers grew exponentially. As errors piled up, dramatic eleventh-hour reversals began to occur, and they struck a stronger emotional chord with the American public than the broad statistical claims that had been at the heart of the McCleskey strategy. "Who understands regression analysis?" asks George Kendall, a cooperating lawyer with the NAACP Legal Defense Fund during McCleskey and currently a staff lawyer there. "That was not made for the American public."
The advent of DNA testing made some exonerations possible. It also dramatized for the public what studies have long shown: that eyewitness testimony is unreliable and far from scientific. More broadly, it reminded Americans of the fallibility of the justice system. A decrease in crime during the 1990s may have also allowed the public to evaluate the issue of capital punishment more rationally. In 1988, the dominant image associated with violent crime and the death penalty was probably Willie Horton, says Richard Dieter, executive director of the Death Penalty Information Center. Today, it may well be Northwestern journalism students managing to exonerate an innocent man who had spent 16 years on death row.
As mistakes have piled up, so have doubts -- on the right as well as the left. "When you come across something that's a problem, it starts to register, and that's what's happening here," says Diann Rust-Tierney, director of the American Civil Liberties Union's Capital Punishment Project. "People who support the death penalty have had to come forward and say, 'Wait a minute.'"
And they have. Republican Governor George Ryan of Illinois declared a death-penalty moratorium in his state after a commission found numerous errors in the system. Maryland has followed suit. Influential conservatives such as George Will and Pat Robertson have questioned how the death penalty is being applied. "It was not the usual voices," Dieter says. In recent weeks, the Innocence Protection Act, which would ensure defendants access to DNA evidence and qualified representation, has gained momentum on Capitol Hill with backing from a number of death-penalty supporters.
Atkins and Ring are, in many ways, perfect expressions of this public mood, says James Liebman, a Columbia University School of Law professor and author of a study on error rates in capital cases. "These decisions reflect pressure that's being felt by the Court that's coming from the public and the policy makers and the press," he says. Atkins is widely regarded as the more significant of the two rulings in terms of its potential to affect death-penalty law in years to come. In the Atkins decision, Justice John Paul Stevens invoked an evolving standard of decency -- as measured by the number of states that have banned execution of the mentally retarded -- as a test of whether the punishment was "cruel and unusual" under the Eighth Amendment. It was an argument rooted in the actions of numerous state legislatures that have banned such executions, at least partially in response to public questioning of the death penalty.
In Ring, the Court ruled that only juries, not judges, can impose the death penalty, invalidating five state laws and calling into question four others. Ring may not have been a decision whose roots lie in public opinion, but it was very much an effort by the Court to return sovereignty over the death penalty to the public, in the form of jury decisions. What the Court seems to be saying is that it wants the American people and their elected representatives to decide this issue. As it did in Atkins, the Court may be offering to nationalize the results of such a political process in the future, if carried out in a substantial number of states. But it will not impose restrictions on the death penalty from afar. It is a perfect example, Liebman says, of the law lagging a bit behind the rest of the political system.
As an immediate matter, Atkins opens the possibility of a challenge to the execution of juveniles on similar grounds. Only 20 states allowed the execution of the mentally retarded prior to the Court's ruling; 22 currently allow the execution of juveniles. The numbers seem similar enough that an argument based on evolving standards of decency -- as indicated by the number of states permitting the practice -- might hold up for juveniles as well.
Berman also points out that in other Western countries, the road to death-penalty abolition has been incremental. And that raises the question of whether a strategy that seeks to hem in the practice from numerous angles -- making it too expensive or difficult or time-consuming to carry out while fighting for tighter restrictions on who can be executed -- might not eventually lead the majority of Americans to throw up their hands and decide that capital punishment simply isn't worth the effort. That's the hope of Stephen Bright, director of the Southern Center for Human Rights. "I think the death penalty may be a little like the Berlin Wall," he says. "It just may collapse at some point." At the Supreme Court level, there are mixed levels of optimism. "I think we're headed to a re-examination in the Court as to whether this punishment is just hopelessly flawed," says Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty. Others are more cautious, noting that with just one or two Bush appointees, the Court's current balance on the death penalty could swing decisively to the right.
And then there is the most intriguing question of all: whether a legal test based on evolving standards of decency could provide the basis for a complete moratorium -- a second Furman -- years down the road. Liebman believes that's a possibility, but, he says, when and if it happens, "it will still be the Court reacting to its perception of a change in public morality." For his part, Berman believes that if Atkins and Ring embolden death-penalty opponents to focus exclusively on the high court, they will be doing their cause a genuine disservice. The real work, he believes, is still to be done in state capitals and in the realm of public opinion.
It may seem ironic that in the wake of two such promising rulings, death-penalty opponents are being cautioned not to place too much stock in the leadership of the Court. But the lesson of McCleskey was that "courts weren't going to be the ultimate savior here," says Berman. Atkins and Ring do not change that. They do, however, suggest that if the current Supreme Court will not be decreeing an end to capital punishment anytime soon, it may also be sending a message to the American public and its elected leaders on the future constitutionality of the death penalty: The law will lag. You lead.
