Death-Penalty Experts Describe Justice Kennedy’s Mixed Legacy on Capital Punishment

Justice Anthony Kennedy​’s votes swung both to the right and to the left on death-penal­ty issues, pro­fes­sors Carol Steiker (pic­tured, l.) of Harvard Law School and her broth­er, Jordan Steiker (pic­tured, r.) of the University of Texas School of Law write in a com­men­tary for SCOTUSblog, ​“but [he] declined to swing for the fences.” The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy’s nuanced inter­pre­ta­tion of the Eighth Amendment and his mixed lega­cy as a swing vote on cap­i­tal pun­ish­ment. Though he was ​“a fre­quent sup­port­er of restric­tions on the avail­abil­i­ty of fed­er­al habeas review of cap­i­tal cas­es, a skep­tic of claims chal­leng­ing the con­sti­tu­tion­al­i­ty of lethal injec­tion and a rel­a­tive­ly reli­able vote against grant­i­ng stays of exe­cu­tion in end-stage cap­i­tal lit­i­ga­tion,” they write, he also was ​“the author of numer­ous opin­ions that broke new ground in the court’s Eighth Amendment jurispru­dence.” Most notably, he joined or authored land­mark deci­sions that nar­rowed the scope of the death penal­ty, exempt­ing defen­dants with intel­lec­tu­al dis­abil­i­ty, juve­nile offend­ers, and those who com­mit­ted non-homi­cide crimes. Those deci­sions on the Court’s ​“pro­por­tion­al­i­ty doc­trine” had sys­temic impact on the admin­is­tra­tion of the death penal­ty nation­wide and paved the way for lat­er deci­sions ban­ning the use of manda­to­ry life-with­out-parole sen­tences for juve­niles. However, Justice Kennedy was con­tent to grap­ple with the con­sti­tu­tion­al­i­ty of indi­vid­ual death-penal­ty prac­tices one at a time, rather than address­ing the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment as a whole. Kennedy’s role as a swing vote is illus­trat­ed by his change of heart on guar­an­tees of indi­vid­u­al­ized sen­tenc­ing. In his ear­ly days on the Court, he vot­ed to restrict defen­dants’ rights to the con­sid­er­a­tion of mit­i­gat­ing evi­dence that could spare their lives, but near­ly 20 years lat­er, as the Court as a whole moved ide­o­log­i­cal­ly to the right, he shift­ed left­wards and joined major­i­ty opin­ions that broad­ly pro­tect­ed the rights to present and have cap­i­tal sen­tencers mean­ing­ful­ly con­sid­er that evi­dence. In 1989, he pro­vid­ed the fifth vote in Stanford v. Kentucky to per­mit the use of the death penal­ty against offend­ers aged six­teen and sev­en­teen. By 2005, cit­ing an evo­lu­tion of val­ues in the United States, he authored the Court’s 5 – 4 deci­sion in Roper v. Simmons ban­ning the death penal­ty for offend­ers under age eigh­teen. In 2015, Kennedy start­ed an impor­tant dis­cus­sion of the con­di­tions of incar­cer­a­tion on death row, rais­ing ques­tions about the effects of long-term soli­tary con­fine­ment. Justice Stephen Breyer drew on Kennedy’s con­cerns in his dis­sent in Glossip v. Gross, ques­tion­ing the con­sti­tu­tion­al­i­ty of capital punishment.

(Carol Steiker and Jordan Steiker, Justice Kennedy: He swung left on the death penal­ty but declined to swing for the fences, SCOTUSBlog, July 2, 2018.) See U.S. Supreme Court and History of the Death Penalty.