Justice Sandra Day O’Connor’s Conflicted Death Penalty Jurisprudence

Justice Sandra Day O’Connor, the first woman to sit on the United States Supreme Court, died at the age of 93 on December 1, 2023. In her 25-year tenure on the Court, Justice O’Connor authored opin­ions in sev­er­al land­mark death penal­ty cas­es, includ­ing deci­sions that upheld the use of the death penal­ty for vul­ner­a­ble groups and peo­ple with dimin­ished cul­pa­bil­i­ty. However, she demon­strat­ed an ear­ly inter­est in improv­ing cap­i­tal defense stan­dards, and in her lat­er years on the Court expressed con­cerns that the coun­try had exe­cut­ed inno­cent peo­ple. Her leg­isla­tive expe­ri­ence, a rar­i­ty for jus­tices, influ­enced her approach in Eighth Amendment cas­es where she con­sis­tent­ly looked to state leg­is­la­tures to deter­mine ​“evolv­ing stan­dards of decen­cy” regard­ing the groups of peo­ple eli­gi­ble for death.

Architect of Ineffective Assistance of Counsel Legal Standard 

Justice O’Connor set the sem­i­nal stan­dard for judg­ing the con­sti­tu­tion­al ade­qua­cy of defense rep­re­sen­ta­tion in death penal­ty cas­es as the author of the major­i­ty opin­ion in Strickland v. Washington (1984), the Court’s first major for­ay into the assess­ment of defense rep­re­sen­ta­tion under the Sixth Amendment. In Strickland, she held that in order to pre­vail, defen­dants rais­ing inef­fec­tive assis­tance of coun­sel claims must show 1) that counsel’s per­for­mance was defi­cient, and 2) that the defi­cient per­for­mance prej­u­diced the defense. However, she declined to spec­i­fy what ​“defi­cient” or ​“prej­u­di­cial” per­for­mances would look like, and empha­sized that ​“judi­cial scruti­ny of counsel’s per­for­mance must be high­ly def­er­en­tial.” The majority’s rea­son­ing came under severe crit­i­cism from Justice Thurgood Marshall in dissent: 

“My objec­tion to the per­for­mance stan­dard adopt­ed by the Court is that it is so mal­leable that, in prac­tice, it will either have no grip at all or will yield exces­sive vari­a­tion in the man­ner in which the Sixth Amendment is inter­pret­ed and applied by dif­fer­ent courts. To tell lawyers and the low­er courts that coun­sel for a crim­i­nal defen­dant must behave ​‘rea­son­ably’ and must act like ​‘a rea­son­ably com­pe­tent attor­ney,’ is to tell them almost nothing.” 

Justice Marshall’s con­cerns proved pre­scient. A 2000 paper found ​“lit­tle con­sis­ten­cy with­in judi­cial dis­tricts or across dis­tricts” in apply­ing Strickland, with ​“striking…factual sim­i­lar­i­ty between win­ners and losers.” Defendants were denied relief when courts found they had received ​“rea­son­able” rep­re­sen­ta­tion despite their attor­neys being impaired with drugs and alco­hol, sleep­ing, and fail­ing to present any evi­dence dur­ing tri­al. In a 2001 speech express­ing con­cerns about the fair admin­is­tra­tion of the death penal­ty, Justice O’Connor her­self sug­gest­ed fur­ther action was need­ed: ​“Perhaps it’s time to look at min­i­mum stan­dards for appoint­ed coun­sel in death cas­es and ade­quate com­pen­sa­tion for appoint­ed coun­sel when they are used.” Then, in 2003, she authored the major­i­ty opin­ion in Wiggins v. Smith, in which she wrote that the def­i­n­i­tion of ​“rea­son­able” could be found by look­ing to pre­vail­ing pro­fes­sion­al norms, such as the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. By doing so, Wiggins gave the courts spe­cif­ic guid­ance to eval­u­ate attor­ney per­for­mance but upheld the use of a broad stan­dard that invit­ed judi­cial sub­jec­tiv­i­ty and inconsistency. 

Legislative-Driven Approaches to Youthfulness, Mental Illness, and Intellectual Disability 

Unlike the oth­er jus­tices of her era, and as an out­lier in the Court’s his­to­ry, Justice O’Connor had served as a leg­is­la­tor for two terms in the Arizona State Senate pri­or to join­ing the Court. When the Court was called upon to decide whether the death penal­ty was ​“cru­el and unusu­al pun­ish­ment” for cer­tain class­es of peo­ple under the Eighth Amendment, she was a strong believ­er in the ​“evolv­ing stan­dards of decen­cy” test — the notion that courts should look to the peo­ple for a con­sen­sus on the moral­i­ty of a giv­en prac­tice. She argued that leg­is­la­tures were the key sig­ni­fiers of society’s views. However, her assess­ments of leg­isla­tive trends were not always con­sis­tent, and her approach tend­ed to favor state auton­o­my over death penal­ty prac­tices, in line with her con­ser­v­a­tive col­leagues. She dis­fa­vored blan­ket exclu­sions of vul­ner­a­ble groups from the death penal­ty but was will­ing to grant relief based on individualized facts. 

Justice O’Connor resist­ed the idea that young offend­ers should be exclud­ed from the death penal­ty. She con­curred in the Court’s judg­ment in Thompson v. Oklahoma (1988) that the defen­dant, who had been 15 at the time of the crime, could not be exe­cut­ed, but wrote sep­a­rate­ly to ques­tion the plurality’s hold­ing that all defen­dants under 16 should be cat­e­gor­i­cal­ly exclud­ed. The Court found that 32 states reject­ed the prac­tice or the death penal­ty gen­er­al­ly. ​“Although I believe that a nation­al con­sen­sus for­bid­ding the exe­cu­tion of any per­son for a crime com­mit­ted before the age of 16 very like­ly does exist, I am reluc­tant to adopt this con­clu­sion as a mat­ter of con­sti­tu­tion­al law with­out bet­ter evi­dence than we now pos­sess,” she wrote. In Stanford v. Kentucky (1989) the fol­low­ing year, she became the swing vote in the Court’s con­clu­sion that the death penal­ty was con­sti­tu­tion­al for chil­dren ages 16 and up, despite a major­i­ty of states reject­ing the prac­tice and a sim­i­lar num­ber to Thompson: 28 either declined to impose it on 16-year-olds or had abol­ished the death penal­ty out­right. ​“The day may come when there is such gen­er­al leg­isla­tive rejec­tion of the exe­cu­tion of 16- or 17-year-old cap­i­tal mur­der­ers that a clear nation­al con­sen­sus can be said to have devel­oped,” she wrote in a con­cur­rence, but ​“I do not believe that day has yet arrived.” 

In Roper v. Simmons (2005), the Court over­turned Stanford and held that exe­cu­tion was only con­sti­tu­tion­al for defen­dants 18 or old­er at the time of their crime. Justice O’Connor dis­sent­ed, despite the num­ber of states reject­ing cap­i­tal pun­ish­ment under 18 years old hav­ing grown to 30. The ​“evi­dence before us fails to demon­strate con­clu­sive­ly that any such con­sen­sus has emerged in the brief peri­od since we upheld the con­sti­tu­tion­al­i­ty of this prac­tice” in Stanford, she wrote, and she ​“would not sub­sti­tute our judg­ment about the moral pro­pri­ety of cap­i­tal pun­ish­ment for 17-year-old mur­der­ers for the judg­ments of the Nation’s leg­is­la­tures.” Instead, she ​“would demand a clear­er show­ing that our soci­ety tru­ly has set its face against this prac­tice before read­ing the Eighth Amendment cat­e­gor­i­cal­ly to for­bid it.” Neuroscientific research now con­firms that brains do not devel­op ful­ly until a person’s mid-20s, mean­ing that impulse con­trol, long-term plan­ning, and oth­er crit­i­cal think­ing fac­ul­ties are inhib­it­ed in youthful offenders. 

Yet a 30-state agree­ment suf­ficed to form a ​“nation­al con­sen­sus” around reject­ing the death penal­ty for peo­ple with intel­lec­tu­al dis­abil­i­ty, in an illus­tra­tion of Justice O’Connor’s fluc­tu­at­ing approach to death penal­ty analy­sis. She wrote for the major­i­ty in Penry v. Lynaugh (1989) uphold­ing the prac­tice, hold­ing that ​“there is insuf­fi­cient evi­dence of a nation­al con­sen­sus against exe­cut­ing [intel­lec­tu­al­ly dis­abled] peo­ple con­vict­ed of cap­i­tal offens­es for us to con­clude that it is cat­e­gor­i­cal­ly pro­hib­it­ed by the Eighth Amendment.” However, she vot­ed to grant relief to the defen­dant in that case and its com­pan­ion case Penry v. Johnson (2001) on the grounds that Texas’ jury instruc­tions did not allow the jury to mean­ing­ful­ly con­sid­er the defendant’s intel­lec­tu­al dis­abil­i­ty as a mit­i­gat­ing fac­tor. By 2002, she joined the major­i­ty in Atkins v. Virginia to cat­e­gor­i­cal­ly bar the death penal­ty for peo­ple with intel­lec­tu­al dis­abil­i­ty, based in part on the fact that 30 states either banned the prac­tice or the death penal­ty. The Court high­light­ed the ​“dra­mat­ic shift in the state leg­isla­tive land­scape” since Penry I that saw 16 new states pass bills on the subject. 

Justice O’Connor also resist­ed a cat­e­gor­i­cal bar on exe­cu­tions for seri­ous­ly men­tal­ly ill peo­ple. In Ford v. Wainwright (1986), where the Court held that the exe­cu­tion of a per­son with insan­i­ty was uncon­sti­tu­tion­al, she con­curred in the judg­ment but dis­sent­ed from the ratio­nale. The ​“Eighth Amendment does not cre­ate a sub­stan­tive right not to be exe­cut­ed while insane,” she wrote. Further, she dis­agreed ​“that the fed­er­al courts should have any role what­ev­er in the sub­stan­tive deter­mi­na­tion of a defendant’s com­pe­ten­cy to be executed.” 

Nonetheless, Justice O’Connor wrote force­ful­ly against the ​“orig­i­nal­ism” approach that some of the Court’s con­ser­v­a­tive jus­tices now advo­cate, and which over a dozen state Attorneys General recent­ly asked the Court to imple­ment in place of the ​“evolv­ing stan­dards of decen­cy” test. ​“It is by now beyond seri­ous dis­pute that the Eighth Amendment’s pro­hi­bi­tion of ​‘cru­el and unusu­al pun­ish­ments’ is not a sta­t­ic demand,” Justice O’Connor wrote in her Roper dis­sent. ​“Its man­date would be lit­tle more than a dead let­ter today if it barred only those sanc­tions — like the exe­cu­tion of chil­dren under the age of sev­en — that civ­i­lized soci­ety had already repu­di­at­ed in 1791.” 

Cementing the Death Penalty for Non-Triggermen 

Justice O’Connor was instru­men­tal in main­tain­ing the death penal­ty for peo­ple who par­tic­i­pat­ed in cap­i­tal crimes but did not them­selves kill — typ­i­cal­ly peo­ple con­vict­ed under ​“felony mur­der” laws. In Enmund v. Florida (1982), the Court held that the death penal­ty is uncon­sti­tu­tion­al when a defen­dant did not kill, attempt to kill, or intend that a killing take place. In her first year on the job, Justice O’Connor wrote for the four-jus­tice dis­sent. Arguing that oth­er Eighth Amendment deci­sions had stronger leg­isla­tive and jury sup­port, such as the abo­li­tion of the death penal­ty for rape in Coker v. Georgia (1977), she wrote that ​“the avail­able data do not show that soci­ety has reject­ed con­clu­sive­ly the death penal­ty for felony mur­der­ers.” Five years lat­er, she wrote for the 5 – 4 major­i­ty in Tison v. Arizona (1987) to fur­ther nar­row the scope of Enmund. She held that a per­son who did not cause death nor intend to cause death could be exe­cut­ed if the jury found ​“major par­tic­i­pa­tion in the felony com­mit­ted, com­bined with reck­less indif­fer­ence to human life.” 

In Later Years, Shared Public Concerns About Innocence 

Towards the end of her tenure on the Court, Justice O’Connor ques­tioned the death penalty’s fair­ness sev­er­al times in pub­lic speech­es, empha­siz­ing the emerg­ing evi­dence of inno­cent peo­ple on death row. ​“More often than we want to rec­og­nize, some inno­cent defen­dants have been con­vict­ed and sen­tenced to death,” she said at a Nebraska State Bar Association event in 2001. She stat­ed that wrong­ful con­vic­tions would con­tin­ue to occur unless indi­gent defen­dants were rep­re­sent­ed by qual­i­fied lawyers. That same year, she told the Minnesota Women Lawyers orga­ni­za­tion that ​“seri­ous ques­tions are being raised about whether the death penal­ty is fair­ly admin­is­tered in this coun­try.” She referred to the then-90 (now 195) exon­er­a­tions from death row, say­ing that ​“if sta­tis­tics are any indi­ca­tion, the sys­tem may well be allow­ing some inno­cent defen­dants to be exe­cut­ed.” Research sug­gests that the same groups for whom Justice O’Connor vot­ed to main­tain the death penal­ty for many years – peo­ple who are under the age of 18, intel­lec­tu­al­ly dis­abled, men­tal­ly ill, or less­er par­tic­i­pants in the crime—face a height­ened risk of wrong­ful con­vic­tion. Justice O’Connor retired from the Court in 2006 after 25 years of service.