Fuman v. Georgia and the Death Penalty

Aikens v. California is alphabetically a quick get at Oyez.com and led me to look over Furman v. Georgia again as well. Anthony Amsterdam had multiple arguments so used Aikens to largely set-up his general arguments. In the end, the California Supreme Court declared the death penalty unconstitutional on state grounds (unclear why the USSC heard the case almost simultaneously -- the opponents argued in front of the state court less than two months before).  A Wild Justice (The Brethren being perhaps the first one) provides an examination of the history there. 

The USSC held the death penalty as applied in the cases granted unconstitutional 5-4, but only two believed it completely so.  This set up Gregg v. Georgia a few years later in which the death penalty was upheld 7-2 (Stevens replacing Douglas), but mandatory death penalty still in effect not (Powell/White switching places). Multiple justices on both sides thought the death penalty would be done with the first time, but Justice White did not -- he rested on it being applied too little to be rational. Something like thirty-five states raced to try to figure out a way to execute and the Supreme Court tried instead to "tinker with death." Still, aside from a few states, White's original concerns weren't really answered.

Justice Stewart also rested on the death penalty not being applied in a rational way, deciding later the new laws provided better safeguards. He also probably simply accepted that the country still strongly expressed a desire to have a death penalty.  Justice Marshall, though ultimately noting it wouldn't enough anyway given the death penalty was still disproportionate, appealed to "the opinion of an informed citizenry," the sort of "reasonable observer" that pops up in First Amendment cases, particularly during Christmas display season.  He has at least something of a point there, partially since we have a strong ability to assure ourselves certain things are true.  Burger and Powell do provide pushback.

The dissents are pretty strong and well written. Burger/Powell provide a broad based reply, Blackmun provides a more emotional one given he personally was strongly against it and Rehnquist rested on judicial restraint and trusting the people (this not being some affirmative action program or something). Not that majority opinions aren't strong either (White and Stewart had more of an essay approach, the others more in depth -- the whole affair would amount to around two hundred pages). The whole affair is rather intriguing reading.  The one thing I would call out the dissent on in particular is any suggestion the 8A did not deal with disproportionate punishments.  Justice Powell himself held otherwise a few years later.  

I believe the death penalty is both unconstitutional and bad policy -- digs of some, people like myself do not always think that is the same thing. Bad policy can be inspired by things that either violate the Constitution or at least its general principles. On that front, I mean that the document influences various things that might be a matter of policy -- let's say the nuances of criminal justice -- without compelling some court to strike down the "wrong" one. When Furman et. al. was decided in 1972, for instance, I'm unsure it was correct for the USSC to strike down the death penalty nation-wide. If fully honest, I think Blackmun was right at the time. There were corrections and tinkering around the edges (e.g., holding it unconstitutional as applied to rape or perhaps mandatory sentences*).  [Should add, that I don't quite agree with him in Gregg v. Georgia, where he dissented from a more restrictive approach, but he soon accepted that.]

On principle, I would have shared the views of Brennan and Marshall.  But, like same sex marriage in the 1980s, it is different when trying to use the USSC to declare something unconstitutional. Constitutional law there develops over time and requires some development of society in general. It also is appropriate to work up. The basics of speech protection came before the hard cases.  There was a lot of things to deal with in the death penalty context before a full frontal attack. And, twenty years later, there was enough water under the bridge for Blackmun's saying "enough" to have gain serious traction. Stevens' similar move in Baze v. Rees was a concurrence to an opinion upholding the death sentence.

I'm not a member of the Supreme Court, however, and never shall be. From my vantage point, and at this point in history, I think the death penalty is unconstitutional writ large for the various reasons cited in the Furman majority opinions et. al.  Meanwhile, it is proper for the Supreme Court to attack the punishment from various angles, including openness of the lethal injection process and things like the mental stability of those executed. Finally, this effort should not interfere with the many many more who are being mistreated in some fashion in our quite flawed criminal justice system.  This includes Obama's -- for whatever reason -- paltry use of the pardon power. 

See also, Mark Osler's Jesus on Death Row.

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* Justice Douglas in his separate opinion basically rested on equality, overall arguing that "cruel and unusual" punishments in particular as applied here was a ban on arbitrary application.  He left open the question of mandatory punishments, which basically weren't done with few exceptions, noting however that they too might be shown to be applied unevenly. Powell argued the evidence for this was not present and in effect the nature of things will result in some people more likely to commit crimes. 

Brennan/Marshall argued that the death penalty was not needed for deterrent or other purposes. A passing note as to killing in prison etc. argued that even there that the death penalty was not necessary, but the matter was not dealt with in depth. Simply put, if the penalty is so problematic, we will have to deal with the extreme cases. And, anyway, it will not only be applied to them.