Death Penalty Should Be Narrowed to Fewer Crimes, Bonnie Says

Richard Bonnie: "Abolition [of the death penalty] is not in the cards" at this point.

Given that abolition of the death penalty is unlikely, opponents of it should press for the crimes to which it can be applied to be sharply narrowed, U.Va. law professor Richard Bonnie told the American Constitution Society March 1.

The death penalty is "anchored in retributive justice," said Bonnie, who advocates abolition. He represented the first four men sentenced to death in Virginia after the Commonwealth reinstated capital punishment in 1973.

Since World War II there has been a worldwide trend to abolish the death penalty, he said. The United States is among the last industrial democracies to still have it. Its continuation in the Soviet Union, China, and South Africa associates it with repressive regimes and its elimination in Europe showed it was not necessary. In 1966, 46 percent of Americans favored abolition. Then support for capital punishment rose, which Bonnie ascribed to President Richard Nixon's "emphasis on punitive justice."

At this point, "abolition is not in the cards," Bonnie said. He predicted that capital punishment will continue for the foreseeable future but possibly with fewer executions.

The Constitution's framers sanctioned the death penalty in the due process clause of the Fifth Amendment, he said.

As part of the "due process revolution" of the Warren Court in the 1960s, concerns about fairness of the criminal justice system and the desire to reduce the risk of mistakes, capital punishment came to be seen as a problem.

There is a "clear record of racism in use of the death penalty in the South," Bonnie added.

A second factor was increasing moral sensitivity to the death penalty by those who impose it. Most Supreme Court appointees had no steadfast personal opposition to the death penalty at the time of their appointment. "They didn't see it part of their mission to abolish it," Bonnie said. "But the more of these cases they saw, the more concerned they became. Being responsible for these cases is a serious moral burden for the judges and attorneys to bear. They start out passive but become opposed."

In the 1960s the NAACP's strategic attack on the death penalty focused on jury selection. But additionally, only a very small number of capital murder convictions actually resulted in the death penalty, which could arguably make it capriciously imposed. Moreover, condemned men were disproportionately black or from poor backgrounds.

Before outlawing the death penalty in Furman v. Georgia in 1972 the justices were 6-3 in favor of the death penalty and found no constitutional defect in it.

Opponents described it as a discretionary system that couldn't be fixed and shifted the argument against it from focusing on the due process clause to the Eighth Amendment, which forbids "cruel or unusual punishment."

"The Court struck down all statutes on the books," Bonnie said, "and then temporized, emphasized the death penalty's arbitrariness," and hoped legislatures would take up that view and not re-enact capital punishment laws. But 35 states did, almost immediately. Some made it mandatory, some put in "guided discretion" clauses that allowed it in aggravated circumstances.

In 1976 in Gregg v. Georgia, the Court upheld "guided discretion."

"Post- Furman, abolition is off the table," Bonnie concludes. Abolitionists now fear that pushing for an end to it could provoke a constitutional amendment to allow it.

That leaves three other options, he said. One would be to push state supreme courts to take the heat for eliminating it. This was the approach chosen by the U.S. Supreme Court, he said. Second would be to push for aggressive Court review of each case to look for errors in the conviction. California tried this and reversed every death sentence examined on the basis of errors discovered. But most of the judges involved in the review were then voted out.

The final route is to narrow the class of offenses to which the death penalty applies, such as limiting it to cases in which a police officer is killed or a witness is murdered. By choosing option two, the Court missed many opportunities to develop the final option, Bonnie said, and "should have been more aggressive about limiting the death penalty."

How would they do that? Under the Eighth Amendment certain principles could be used to reduce the arbitrariness, he said.

First would be to require "clear evidence of a criminal offense proven to a jury." Second would be "individuality, looking for extenuating circumstances in individual cases."

Third would be the "reliability of the adjudication." Are the facts in the case reliable and did they get the full and serious attention of the jury?

Fourth is proportionality. The death penalty is disproportionately applied in cases of rape, for accomplices to murder, and for under-age or mentally ill offenders. The result would be a very small number of cases where people could receive the death penalty.

The death penalty tends to be more common in cases where the victim of the crime is white, Bonnie said. "The systemic problem is that in the aggregate, black perpetrators and victims' lives are discounted. The problem is you can't prove that in the individual circumstances of a case."

"If the Supreme Court takes their adjudication seriously, they don't have any choice but to develop another line. I don't have any reason to think they will."

"They need to see the data on sentencing," he said. "And continue to unfold the Eighth Amendment jurisprudence. An aggressive review is going to make a lot of people angry. They could have done this in the '70s and '80s but they backed off from it. There is some receptivity in the public to making the death penalty fairer. Or Congress could do this tomorrow."