Benjamin Wittes, edi­to­r­i­al page writer for The Washington Post, dis­cuss­es the death penal­ty in light of recent U.S. Supreme Court deci­sions in the October 2005 issue of The Atlantic Monthly. He states that the Court has ​“shift­ed gears on cap­i­tal pun­ish­ment” and pre­dicts that this trend will con­tin­ue through a series of deci­sions lim­it­ing the death penal­ty and address­ing sys­temic flaws that con­tin­ue to sur­face. Wittes writes:

The Court has with­out ques­tion shift­ed gears on cap­i­tal pun­ish­ment. For years the jus­tices turned a will­ful­ly blind eye to the claims of those on death row.
…
But late­ly the Court has struck a very dif­fer­ent tone.
…
The atti­tu­di­nal shift on the part of Kennedy and O’Connor — two of the less rigid­ly prin­ci­pled jus­tices in recent years — is hard­ly a sur­prise. As DNA exon­er­at­ed grow­ing num­bers of pris­on­ers through the 1990s, the pub­lic grew more skep­ti­cal toward cap­i­tal pun­ish­ment in gen­er­al, real­iz­ing that even when juries are sure of a per­son­’s guilt, they are some­times dead wrong. Although polls still show major­i­ty sup­port for the death penal­ty, that sup­port is shrink­ing. Juries are hand­ing down few­er death sen­tences. Executions coun­try­wide, after reach­ing a mod­ern-day high of nine­ty-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anx­i­eties that have led to these trends. It would actu­al­ly be sur­pris­ing if no Supreme Court jus­tice had rethought his or her approach in light of what we now know about cap­i­tal pun­ish­ment.
…
Despite O’Connor’s retire­ment, the Court’s new approach seems like­ly to impose sig­nif­i­cant con­traints on cap­i­tal pun­ish­ment, but ones that will be large­ly invis­i­ble to the pub­lic. The Court will prob­a­bly not be strik­ing down many laws, but the jus­tices will tight­en the screws by scru­ti­niz­ing the indi­vid­ual cas­es enough to fur­ther iso­late the death penal­ty region­al­ly and to raise its polit­i­cal and finan­cial costs.

(“The Executioner’s Swan Song?”, Atlantic Monthly, October 2005). See Supreme Court.

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