February 27th, 2021


Democracy, the death penalty and the Supreme Court

Noah Feldman

By Noah Feldman Bloomberg View

Published June 2, 2016

One Louisiana county accounts for half the state's death sentences - even though it has just 5 percent of the state's population and 5 percent of its homicides. On Tuesday, Justice Stephen Breyer cited this fact about Caddo Parish, Louisiana, in a dissenting U.S. Supreme Court opinion arguing that the death penalty is unconstitutional. The "arbitrary" factor of geography, Breyer proposed, is a reason to think that the death sentence is cruel and unusual punishment prohibited by the Eighth Amendment.

Is Breyer right? Last June, in a case called Glossip v. Gross, Breyer filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg, arguing that the death penalty was unconstitutional under all circumstances. In that opinion he also expressed concern that the accident of geography affects who gets a death sentence.

Tuesday's opinion, also joined by Ginsburg, was a dissent from the court's refusal to hear a capital case coming out of Caddo Parish. The opinion expands on the geography rationale in particular.

Breyer wrote the opinion partly to renew attention to his general argument, and partially because Caddo Parish is one of the most notable national outliers in death sentences. Breyer cited a New York Times article stating that between 2010 and 2014, Caddo Parish gave out more death sentences per capita than any other county in the U.S.

To evaluate how convincing Breyer's argument is, it's worth starting with his idea that arbitrary enforcement makes the death penalty cruel and unusual. Here he draws inspiration from the Supreme Court's 1972 opinion in Furman v. Georgia, which put capital punishment in the whole country on temporary hiatus.

There was no single rationale on which five justices agreed in the Furman case. But one particularly powerful argument was that of Justice Potter Stewart, who said that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Among all those who committed heinous crimes, he argued, it was "a capriciously selected random handful upon whom the sentence of death has in fact been imposed."

Stewart and his colleagues were focused on procedural arbitrariness - the fact that judges and sometimes juries had almost unlimited discretion in deciding whom to execute.

It was partly for this reason that the court allowed the death penalty to be reintroduced in the U.S. starting in 1976. The logic was that, once laws had been improved to reduce this sort of procedural discretion, the death penalty was no longer going to be applied arbitrarily.

Breyer's notion of arbitrariness is different. The procedures for sentencing used in Caddo Parish are no different than procedures used anywhere else.What is different in Caddo Parish seems to have been one man: former acting district attorney Dale Cox. Under district attorney Charles Scott, Cox led a series of death penalty cases. When Scott died in April 2015, Cox became acting district attorney. He attracted national attention with an interview in which he said, "I think we need to kill more people." Other comments made Cox (a white man) seem racist, to boot.

All this sounds - and is - horrifying. The idea that one prosecutor could vastly expand the number of executions in a place does seem arbitrary. As Breyer put it, "One could reasonably believe" that if the petitioner in Tuesday's case "had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row." Potter Stewart's "struck by lightning" analogy seems in this sense to be borne out.

But the aftermath to Cox's interview is also significant. In the wake of the bad publicity caused by his comments, Cox decided not to run for district attorney. In November 2015, Caddo Parish voters elected James Stewart, an African-American, as district attorney to finish out Scott's five-year term.

Notice what this means: the high rate of death sentences imposed in Caddo Parish was the product of the democratic process. Cox was seeking death penalty under the guidance of Scott, who was elected.

Stewart may not pursue the same set of policies. If he doesn't, it will be because the public has spoken and rejected those policies.

Why should the democratic process matter when it comes to the geography of the death penalty? The answer lies in a notion that Breyer himself has embraced in other contexts: the idea that states should function as laboratories of democracy.

The origins of this idea go back to Breyer's idol, Justice Louis Brandeis, who wrote in a 1932 dissent that "it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Brandeis was a progressive pragmatist, and Breyer is a progressive pragmatist. Both believe in the value of real-world experiment to see whether a social policy actually makes the world better place. Both believe the judiciary should stand aside and allow social experiments to run.

In his 2011 book "Making Our Democracy Work: A Judge's View," Breyer approvingly quoted Brandeis, adding that the value of trying different approaches is a reason to make sure that "states have constitutional leeway to experiment."

Terrible as it may sound, choosing to seek the death penalty whenever it's legally permissible to do so is a classic example of experimental democracy. So long as the Supreme Court says the death penalty is legally permissible when the procedures are performed correctly, it's logically within the rights of individual states -- or individual counties within states -- to become heavy execution zones.

That's a terrible idea, to be sure. But it's a terrible idea that can be corrected by experience. And whatever else it is, the decision isn't arbitrary --- at least from the perspective of the voters.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."