Carol S. Steiker & Jordan M. Steiker, Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty, 107 Cornell L. Rev. 1621 (2022).
Abstract: In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased threat of airline hijacking nationwide (and worldwide). In California, the Anderson decision was superseded that same year by a ballot initiative that amended the California constitution to ensure the constitutionality of capital punishment. At the federal level, the U.S. Supreme Court revisited its Furman decision four years later in Gregg v. Georgia, re-authorizing the death penalty nationwide with its validation of new capital statutes that purported to guide the exercise of discretion by capital sentencers. Such speedy about-faces might be seen as evidence of the limits of constitutional intervention, at least with regard to topics as “hot” as the death penalty. Under this view, if the political branches of government are not ready to act, courts cannot get out too far ahead without facing backlash, as observers have often commented with regard to other hotbutton issues like school integration and abortion rights. And if the political branches are ready to act without a judicial mandate, then constitutional intervention by courts is superfluous. For the first few decades after Furman, the U.S. Supreme Court continued to refine procedures for new guided-discretion capital sentencing regimes but left the substance of the death penalty alone. State courts largely followed suit under their own state constitutions. Death sentences and executions surged as the political branches continued to embrace the death penalty, with death sentences and executions both reaching their nationwide modern-era (post-1976) highs during the late 1990s. Starting around 2000, however, the trend reversed. Death sentences and executions dramatically declined nationwide over the course of the next two decades. Prosecutors sought the death penalty less often, juries returned fewer death sentences when it was sought, some governors imposed moratoria on carrying out death sentences, and numerous states abolished capital punishment—most recently, Virginia, the first Southern state to do so and the state logging the largest number of executions in American history. This trend of radical diminution of the death penalty was so pronounced that many, ourselves included, predicted a hollowing out of the death penalty capped by a federal constitutional “Furman II” as a coup de grace that would sweep in outliers like Texas and Alabama. Despite the backlash that greeted the first generation of constitutional intervention, the newly weakened state of the American death penalty seemed to point to judicial abolition as the last, best hope for nationwide abolition. But broadening the lens beyond the U.S. Supreme Court, which at this point in time seems extremely inhospitable to federal constitutional challenges to the death penalty, reveals that the situation is more complex. Judicial constitutional (and sometimes statutory) intervention promoting death penalty abolition is neither hopeless (because of backlash) nor the only hope (to sweep in political resisters); rather, it interacts in complex ways with the work of the political branches. We can see this interaction most clearly at the state level, where intervention by state courts has played an important role in the nationwide decline of the death penalty, but in many different and sometimes unexpected ways. In what follows, we explore some of the myriad scenarios in which state court intervention—only rarely involving full-blown, Anderson– or Furman-style abolition—has interacted with political reform or repeal efforts to accelerate the recent massive decline in the use of the death penalty across the United States. Each one of these stories is unique, reflecting each state’s specific context and history. But these scenarios can also be seen as archetypes of dynamics that could play out in a broadly similar way in other contexts and, thus, provide important lessons for advocates in other jurisdictions. Moreover, the sum of the scenarios, when viewed in the aggregate, offers an important historical corrective. These dynamics between judicial and political action illuminate the importance of state court intervention in the story of the American death penalty’s precipitous decline, which has tended to foreground other institutional actors and to neglect the complex interactions among branches of government. State judicial rulings, though often highly technical and, therefore, less visible and accessible to the public, have been a pervasive and powerful force in the two-decade-long diminution of the practice of capital punishment across the United States. Although we label state court decisions that hasten the demise of the death penalty as “little Furmans,” it is important to emphasize that the state judicial interventions we describe below, though diverse in their details, differ strikingly in their dynamics from Furman. Furman arrived at a time when state legislatures had paid scant attention to the death penalty. In fact, Furman arrived in large part because of state legislative inattention. The NAACP Legal Defense insisted that the extraordinary pre-Furman decline in capital sentencing and executions revealed that prevailing state capital statutes did not accurately reflect societal attitudes about the death penalty. And the refusal of state legislatures to revisit their statutes suggested that those statutes had fallen into desuetude, relics of an outdated morality that was evident in the infrequent, haphazard, and discriminatory use of the death penalty. Litigants in Furman argued that judicial intervention was required to put an end to a practice that had for all practical purposes run its course. But several of the Justices necessary to the result in Furman were not fully convinced and were unwilling to embrace the claim that the death penalty was inconsistent with societal standards of decency. So, Furman’s intervention proved to be essentially procedural, highlighting the absence of efforts by state legislatures to ensure that the death penalty was rationally and consistently applied, leaving open the door to state legislative efforts to tame the death penalty through more refined capital statutes. Because Furman arrived at a time of legislative inactivity, it was widely perceived to be “counter-majoritarian”—imposing significant judicial limitations on (perhaps even abolition of) the death penalty despite scant political activity in that direction. Of course, that characterization could be disputed. Even though there was not a strong or successful political campaign to end the death penalty in the years before Furman, the manifest declines in death sentencing and executions suggested weakening political support. But whatever the valence of public or political support for the death penalty at the time, it is undoubtedly true that Furman was not building on or advancing the work of legislative bodies. In contrast, the myriad state judicial interventions described below arrived at a very different time in the life of the American death penalty, and they were deeply connected to and in conversation with the work of state political branches. In some cases, the state courts directly advanced moral commitments identified and embraced by the state legislatures (including legislative commitments to racial justice or even legislative efforts to move away from the death penalty). In other cases, the state courts imposed minimal restraints on the death penalty, leaving it to the state legislature to decide whether to navigate those restraints or to use the state court decision as an occasion to let the death penalty expire without the political visibility or costs of an outright legislative repeal. Unlike in Furman, the state courts in these scenarios acted after a period of extended public debate about the wisdom and appropriate shape of the death penalty and substantial engagement with the issue by the political branches. In this respect, the state court interventions are best understood as culminations of a dialogue with the political branches in contrast to the sudden, lightening-like, and widely unexpected intervention in Furman.