Professor Carol Steiker, Author of Courting Death, Offers an Inside Look at the Supreme Court and the History and Future of America’s Death Penalty

Robin Konrad 0:02

Hello, and welcome to Discussions with DPIC. I’m Robin Konrad, the Director of Research and Special Projects with the Death Penalty Information Center. Today, I’m very excited to be joined by Professor Carol Steiker who is one of the nation’s leading scholars on capital punishment. Carol Steiker is the Henry J. Friendly Professor of Law and Faculty Co-director of the Criminal Justice Policy Program at Harvard Law School. Before joining the faculty at Harvard, Professor Steiker clerked for Justice Thurgood Marshall, and also represented indigent defendants at the Public Defender Service in Washington, DC. She has also represented clients in death penalty cases before the US Supreme Court. Her most recent book Courting Death: the Supreme Court and Capital Punishment, co-authored with her brother Jordan Steiker of the University of Texas School of Law, was published by Harvard University Press in November 2016. We’re very excited to have you here today. Welcome Professor Steiker.

Professor Carol Steiker 1:02

Thank you, Robin.

Robin Konrad 1:04

Let’s start off. You say in your book “Courting Death” that clerking for Thurgood Marshall was your quote, “education in death penalty law.” What did you learn from him about the death penalty? And how has the experience of working for Justice Marshall influenced your work?

Professor Carol Steiker 1:20

Well, I think I can speak for both myself and my brother Jordan because each of us clerked for Justice Marshall two years apart and we had similar experiences in his chambers. Justice Marshall was the only then and I think probably of all time justice to have represented death row inmates himself, to have represented people in capital trials. In fact, there’s a recent movie about some of Justice Marshall’s early criminal defense work, the movie Marshall, about a case in which he represents a black man falsely accused of raping a white woman in Connecticut — great movie by the way. So Justice Marshall having been himself a criminal defense lawyer, a capital defense lawyer, and a civil rights lawyer, cared deeply about the death penalty. And indeed, on the very first day of my clerkship, I was handed two giant black binders with all of the court’s previous death penalty cases in them. And the outgoing clerk said, “the boss really cares about the stuff, you better learn it.” And that was my introduction right then to death penalty law. And each of those cases, and there every year there are, you know, from half a dozen to a dozen capital cases that come to the Supreme Court. Each of those cases were ones that we knew and were told by our boss, as we called him, to delve into deeply to try to see whether there was any possibility of convincing more justices to join him and Justice Brennan in challenging the death penalty in those cases. So it was something that we knew meant a lot to him, and over the year of being in this chambers, we came to understand why, by really delving deeply into these cases, into the history of the court’s engagement with capital punishment, and the way in which the court offers a window into the death penalty across the country, since all contested death cases end up in the Supreme Court. All of that led us to see, understand, and share Justice Marshall’s concern about these cases.

Robin Konrad 3:42

What was it in particular if you can articulate that he was so concerned about with regard to the administration of the death penalty in the United States?

Professor Carol Steiker 3:51

I think there were a number of things. One thing was clearly the racial disproportion. I mean, he had been Thurgood Marshall of the NAACP LDF and he, as much as anyone in the country understood the way that the death penalty, which was disproportionately used in southern states, was used as a tool of racial oppression. There’s no question that it was not fairly or even-handedly meted out. So I think that was part of it, but I also think there was a sense in which he understood that the law around the death penalty did not provide fairness to any capital defendants, black or white. I remember there was one case that I worked on, where he ended up writing as he often did in these cases, the dissent and the case involved a judge who refused to strike from the jury a biased juror. And when it went up to the Supreme Court, the Supreme Court agreed that that jury had been biased and should have been taken off the jury.

Robin Konrad 5:06

Do you remember what the bias was?

Professor Carol Steiker 5:07

I don’t remember what the bias was, but I do remember the case was Ross vs. Oklahoma. And I forget the precise reasons for the bias, but it was clear, the Supreme Court agreed that the trial court had erred, as courts often do, on the side of the prosecution and against the defense in this capital case, to take this juror off the trial. But the juror didn’t sit on the trial, because as you can imagine, the defense lawyer used one of his peremptory strikes to remove that juror from the jury, that perspective juror from the jury because each side gets a certain number of peremptory strikes as opposed to strikes for good cause. They can use them for any reason and no reason and so the defense lawyer used one of these precious strikes to take this biased juror off the jury and then appealed and said now he was at a disadvantage because the prosecution hadn’t had to use any of its peremptory strikes. But he had had to give up one of his to correct the trial judge’s error. And the Supreme Court said, “well, peremptory strikes are not constitutionally mandated. They’re the creatures of state law. And therefore, you didn’t suffer any constitutional injury by having to give up one of your peremptory strikes. So you lose.” And I remember Justice Marshall was furious about this case and in fact, you know, he gave me my instructions, and I worked on the opinion and the dissent and I gave it to him, and he looked at it and it just, it wasn’t fiery enough for him. And so he took his big blue marking pen with which he marked up our drafts and he wrote a new first line for the dissent which was this: “A man’s life is at stake. We should not be playing games.” And I think his sense was that the lack of due process, the lack of procedural protections, the way in which judges routinely overrode whatever rules there were, usually on the side of the prosecution and against indigent defendants, made him think that the system was just not fair, no matter what color you are, and I could see that in this case.

Robin Konrad 7:26

Well, thank you for sharing that story. And that’s something we’ve talked about in a previous podcast about peremptory strikes. Well, let’s get back to the general general discussion about race and the death penalty and Justice Marshall’s experience and ,and I guess you know, you’ve done a lot of research and writing about race and the death penalty. How pervasive is race discrimination in death penalty cases and is the death penalty redeemable at this point in time, where we are now?

Professor Carol Steiker 7:59

Well, unfortunately, where we are now is deeply rooted in our past and there really is no escaping history in this regard. So that if you look at a map of the United States, people talk about the American death penalty, but there is no American death penalty. The overwhelming use of the death penalty is by states so there is a federal death penalty, but in the 40-some-odd years since 1976, there have been almost 1500 executions in the United States and only three of them have been under federal authority.

Robin Konrad 8:39

And I just want to interject the date of 1976 for our listeners is when Gregg vs. Georgia was decided and if you want to give a brief one or two sentence just a refresher for, for those listening who, who don’t have experience with the death penalty.

Professor Carol Steiker 8:54

Yes, absolutely. 1976 is year zero in many modern lawyers minds because in 1972, in a landmark case called Furman vs Georgia, the Supreme Court actually abolished the death penalty under the Constitution as it was then applied in the United States. But there was a fair amount of backlash, especially in the south, and in 1976, the Supreme Court reviewed five new death penalty statutes all from southern states, and upheld three of them and set forth therefore a kind of new template for the modern death penalty. And the American death penalty was revived, back in business, and began soaring over the next couple of decades. So 1976 is what many people think of as the beginning of the modern death penalty. So everything that we count, we basically count from 1976, from this new era. And as I was saying, in this new era, in the last 40 ish years, 42 years, there have been almost 1500 executions — only three of them have been under federal authority. So the death penalty is a creature of state law. And there are 19 states now that don’t have the death penalty and none of them are states of the former Confederacy, and the states of the Deep South are the ones that overwhelmingly conduct the executions in the United States, so that’s not an accident. From the very beginning, from the colonial era, the southern states were the biggest users of the death penalty, initially as a mode of keeping slaves in check because they were already in some kind of confinement if you will add hard labor. So the southern slave owners believed that the death penalty was necessary to terrorize, to keep control over this, this large number of slaves that in some places in the south outnumbered the white masters by considerable numbers. After the Civil War, the former slave owners were fearful of the newly freed slaves who live now among them, free in the south and a great deal of violence against these freed blacks engulfed the South during Reconstruction, and beyond in an era that we now think of as the era of lynching. Indeed, at the highest point of this era, which was between about 1890 and 1910, the real peak of the lynching era, there were nearly 2000 lynchings, which is more than the 1500 legal executions in our country over the past 40 years, in a country obviously, that has many more people living in it now. But between 1890 and 1910, there were nearly 2000 lynchings. So there were more extrajudicial killings in that 20 year period, then there were legal executions during that period or legal executions in the past 40 some odd years counting backwards from today. So that gives you some sense of the scale of violence in the south, mostly in the south, lynchings were not entirely relegated to the south, but that was where most of them took place.

Robin Konrad 12:23

And they were predominantly black people that were lynched.

Professor Carol Steiker 12:26

Predominantly of black people and for crimes against, for alleged crimes against white people. They were never, many of these people were never actually charged so, you know, I’d say a substantial minority of them were for murder, alleged murder, against white victims. Another substantial portion were for alleged rape against white women and some of them were for things that aren’t crimes at all, but were thought to be violations of the social code. Being disrespectful to white people, or looking boldly at a white woman, or saying something inappropriate to a white person. So they were, they were for a lot of different things, but they were almost always racially inflected and indeed the arguments for keeping the death penalty at that time. So what’s really interesting is in that period, that peak of lynching, also happened to be during an era that we call the Progressive Era, and there was a lot of foment about reform and progressive thinking and actually a number of states abolished the death penalty, it was one of the most active periods of abolition in US history. 10 states abolished the death penalty in a period of about that same period of about 20 years, but almost all of them reinstate it, the death penalty, despite having abolished it and the overwhelming reason when you read the debates, and you read the newspaper reports of the time was that it was the only way to tamp down on lynchings. So it was actually many progressive people in the south, who supported the death penalty during this era because they thought at least legal executions had some process attached them, you had to be charged, there had to be a trial of sorts, as opposed to a mob just stringing someone up and torturing them, which is what lynchings were of that period. So it’s really interesting to see that the continued life of the death penalty in the south was a direct product of its history of violent lynchings. And now you look today, and the best predictor of the geographical regions that have executions today is regions that had lynchings 100 years ago. So that’s the work of the sociologist, Frank Zimmering, who shows these two maps of the places that had lynchings 100 years ago and the places that have executions today, and it’s eerie, the incredible overlap between those two maps. So today’s death penalty is inextricably tied to a history of slavery, of lynching, of progressive anti-lynching support of the death penalty. It, that’s, those are the waves of history that are still lapping at the shore of the present.

Robin Konrad 15:33

And we talked before we started recording this about the, the new Equal Justice Initiative memorial and museum that just opened a few weeks ago at the end of April. That’s the first time in American history, that we have a memorial dedicated to the lynching victims and it’s, it’s amazing. We were down there for the opening ceremony and I don’t know if you’ve given any thought of how that will change the dialogue, generally, to now have in the United States, in the south, in Alabama, where so much there’s so much history of racial violence and lynching, that we had the civil rights movement starting, you know, in, in Alabama, whether that’ll change the discussion, dialogue, anything with regard to the death penalty?

Professor Carol Steiker 16:27

Well, I hope that it will, because it’s interesting, we write about a lot of this in our book. And when we, when Jordan and I have gone on book tours and gone to bookstores, and even law schools to talk about our book, it’s striking to me how much people, including law students who you would think might be better informed about these aspects of American history, striking to me how little people know of this history, how little it’s taught, for example, in our high schools, there’s a very celebratory History of the United States. Like we used to have bad things, but then we had the civil rights movement and it all got better and that’s not really the true story. And we do kind of hasten over some of this really ugly history and pretend that it has all been resolved. And when you get in deep about just how ugly the history was, and just how deep it ran, and just how resistant to change it has been, I think that that will make people understand our current institutions in another light. There’s one aspect, in particular , about the memorial and Montgomery that I think is quite striking, which is that for each place that there was a lynching, each town there’s, there’s a wooden marker, but in fact there’s not just one wooden marker, there are two. So there’s one that will remain at the museum site and the other, the town in which the lynching took place is invited to come and claim that marker and erect its own memorial in that town. So it’s a way of bringing the lessons from this museum to the places where these events actually happened. And should one of these jurisdictions not be interested in claiming it’s marker, then those two markers will stand there. I love this as Jeffrey Toobin wrote in a wonderful piece of New Yorker about this museum, “The second marker will remain at the museum in silent rebuke to the town that has refused to claim it.” So I feel like that is kind of genius in terms of trying to use what is essentially a museum to reach out and bring its lessons home so to speak.

Robin Konrad 18:55

Yeah, and it’s it’s powerful it is just walking through these, you know, giant, they’re they’re almost like a large metal box. And and they’re hanging in and you just walk through it and it’s, I mean, it’s very powerful. It’s very powerful. So let’s, let me go back to talking about Justice Thurgood Marshall for a minute. It’s been several decades without him. And so I’m wondering since he’s left, have you noticed that that his legacy still remains through any of the opinions on capital punishment that have come out in the more recent history?

Professor Carol Steiker 19:31

Well, you know, it’s interesting you should say that one of the things that Justice Marshall wrote, which I have over the years kind of made fun of a little bit when I teach Furman vs. Georgia, so he wrote, in his own opinion, striking down the death penalty in 1972, each of the justices on the court wrote his own opinion there were only he’s on the court back then. And in his opinion, Justice Marshall said that even though public opinion polls showed that people seem to support the death penalty in the United States, he said the real question wasn’t what the polls showed, but what fully informed people would think. And he said, if the public were fully informed about the death penalty in the United States, they would not support it. And that always struck me, the reason I made fun of it is it always struck me as kind of condescending, it’s like in an argument saying to someone, well, if you knew as much as I did, you would agree with me and that’s not a very appealing or persuasive kind of argument to make. But one thing that’s really quite amazing is that over the years, even though that that prediction may not be entirely true about ordinary people, because there’s been an attempt to see if you give people stuff to read, whether they change their minds about the death penalty, not entirely clear that that is in fact true. It’s proven to be amazingly true for the justices on the Supreme Court, so that over the years, more and more justices who have supported the death penalty over the years have changed their minds. So I feel that Justice Marshall prediction has proven true with his colleagues, for example, Harry Blackmun, Justice Harry Blackmun, who was one of the dissenters in Furman — he did not think that the court should have struck down the death penalty in 1972 — at the end of his time on the court in 1994, in Callins vs. Collins, Justice Blackmun said, “You know, I now come to see that the death penalty is in fact unconstitutional because I’ve tried and tried to fix it as a justice and it’s incapable of being fixed. So he said, I’ve been what, I’ve been working on this and watching it and seeing it for 20-ish years and it we know we failed in trying to fix it. And so here’s someone, who’s among the people who now knows the most about the death penalty in the country and Justice Harry Blackmun at the end of his multiple decades on the Supreme Court and he changes his mind. Justice John Paul Stevens in 2008, in Baze vs Rees, says, you know, I’ve been working on this for more than 30 years on the court and Justice Stevens was one of the justices who brought the death penalty back in 1976 and in 2008, 32 years later, he says “my 32 years on the court looking at the death penalty I now realize that the death penalty is unconstitutional.” So one of the things that Justice Marshall’s ideas have shown to be true is that people who really see the death penalty up close, change their mind in that direction. There’s been no one on the court, that I know of, that’s changed their mind in the other direction — that started out as against the death penalty but after a few decades on the court moved in the other direction. And there are several others. So there’s just Justice Powell, who was also one of the 1976 justices who brought the death penalty back, who after his retirement from the court just shortly after his retirement, his official biographer asked him if he regretted any of his decisions, if he could change any of them what would they be? And he said McCleskey vs. Zant. And that was the case that upheld the death penalty against a challenge of racial discrimination. And he said, in fact, I think we should just do away with the death penalty. So there’s yet another justice. And most recently, of course, Justices Breyer and Ginsberg who have each voted to uphold death sentences and executions in their years on the court, but in 2015 the two of them, well Justice Ginsburg joined a descent that Justice Breyer penned, saying that they thought that the death penalty was likely unconstitutional, and the court should consider it. So that’s a kind of stunning. I feel like all of these decisions and statements by justices are in some sense in the shadow of Justice Marshall’s work, because, especially his prediction that those who who are fully informed about the death penalty would end up opposing it.

Robin Konrad 24:32

Well, and since you mentioned the most recent dissent by Justice Breyer joined by Justice Ginsburg in 2015, in that opinion, Justice Breyer didn’t go so far as to reach the conclusion that the death penalty was unconstitutional, but he outlined the reasons why he believes that it may be and should that question be before the court, that would be something that they would consider and looking at the different factors including innocent people who have been sentenced to death and have been exonerated, the lawyering that has been received, the prosecutorial misconduct. Why do you have an opinion of why you think that they stopped short of actually saying in dissent that the death penalty was unconstitutional as opposed to saying it may be unconstitutional?

Professor Carol Steiker 25:24

Yes. You know, when you think about it, if you look back to Justice Marshall and Justice Brennan’s stance on the death penalty, and Furman and again in Gregg, they took the same stance of the death penalty is per se, unconstitutional. Their view was a view that actually was much more common in the 1960s than it is today is that the death penalty was just itself an immoral punishment, regardless of how it was imposed, or whether it was imposed on guilty people. That it was an inappropriate punishment because it violated human dignity. That was the entire gist of Justice Brennan’s opinion and Justice Marshall shared that view as well.

Robin Konrad 26:07

And they used to dissent in every capital case saying that it was unconstitutional. Correct?

Professor Carol Steiker 26:13

Correct, per se. I can even type that up in my sleep. Because as a clerk for every capital case that came to the court, Justice Marshall and Justice Brennan would say something like adhering to my view that the death penalty is in all cases cruel and unusual punishment prohibited by the 8th and 14th Amendments of the United States Constitution, I dissent. Now Justice Breyer and Ginsberg’s, very lengthy dissent in Glossip vs. Gross is a different kind of dissent. It’s completely empirical, and it’s about how the death penalty is applied, that it’s applied in a way that innocent people are executed, it’s applied in a way that’s random, arbitrary, and discriminatory. It’s applied in a way where the executions occur so much later if they occur at all after the sentence of death, that it’s a kind of second punishment, a very cruel punishment, in Justice Breyer’s view and it also prevents the death penalty from being able to serve as a viable deterrent or to be retributive justice so many decades later. So all of those kinds of arguments, one depend on empirical evidence. So I could see why, you know, a cautious justice would say, we should hear full argument and get the benefit of briefing on these issues before we rule definitively. Whereas if you were taking the human dignity view, you wouldn’t you would need to do that because that’s not an empirical question. So I think it’s the empirical aspects and the data driven aspects of Justice Breyer’s and Justice Ginsburg’s approach which is much more in accord, honestly, with the times that today it is really a much more consequentialist debate about the death penalty. Does it do good things for our societies? Is it capable of doing good things for our society? Or are the bad results, whether its execution of innocence or arbitrariness and discrimination that we ought to be concerned about, rather than the nature of the punishment per se?

Robin Konrad 28:30

Your book explores the constitutional problems that still persist in the death penalty, despite 40 years of attempts by the Supreme Court to develop a set of rules to regulate fairly capital punishment. Why do we still have these problems? Do you have a sense of what’s going on there?

Professor Carol Steiker 28:51

Yes, I do. And I think they’re two different reasons or two different sets of reasons. One set of reasons has to do with, ironically, the Supreme Court’s own attempts to regulate the death penalty. So the Supreme Court has said initially, gee, what’s really a problem about the death penalty from the pre-Furman era is that there’s no standards at all to guide capital juries. Juries, are the sentencers by tradition and history in the United States, and prior to Furman they were given no direction at all in terms of deciding whether someone should get life or death. The typical jury instruction to a jury in a capital case would be “Ladies and gentlemen of the jury, you may sentence the defendant to death or to life or sometimes to a term of years even, less than life, and that decision is in your sole discretion to be made according to your conscience”. So no grounds, factors, reasons at all and that was initially what the court was most concerned about. This what they called standardless sentencing discretion, that the juries could sentence someone to life or death for any reason or no reason or any feeling that they had, they didn’t have to give any reason or convince one another of their reasons. So that was one problem and the Supreme Court said no, there must be some kind of guidance. Well, this is kind of an accident of history if you’re a state and you have the death penalty and the Supreme Court is just struck it down because you’re not guiding your juries enough, one solution you might come up with which is what quite a number of states did immediately after Furman and will say okay, no discretion at all. You commit a capital crime and you will automatically get the death penalty. Well, the Supreme Court then said, “Hmm, know that that’s a problem too, because death is such an awesome punishment so different in its severity and finality, even from life behind bars, that you have to consider the defendant as an individual in giving that sentence. So on the one hand, there must be rules and guidance. But on the other hand, the jury must have discretion to grant mercy based on the “innumerable frailties of humankind”, which is a lovely phrase that the Supreme Court uses. But those two commands are really as the court both left wing justices and right wing justices came to see are in conflict with one another. You can’t on the one hand guide jury discretion in the, in the imposing of the death penalty and not guide jury discretion in exempting people from the death penalty. As one of the briefs actually in Furman, in Gregg vs. Georgia said, ‘the command kill him if you want and the command kill him, but you may spare him if you want, mean the same thing in any man’s language.’ Kill him if you want, is the pre-Furman regime of total discretion to impose the death penalty. Kill him, but you may spare him if you want is the post-Furman post-Gregg regime of your discretion is guided in terms of imposing the death sentence, but completely unguided in terms of taking people out of consideration for the death penalty. And that, it gives an irresolvable conflict and you’re just not able to do both of those things well if both of those things are what you need to do to have the death penalty. So I think that’s one problem why we still have these problems. And another set of problems has to do with other institutional structures that the court doesn’t control and can’t fix. So the fact is, is that the vast majority of jurisdictions in the United States elect not only their prosecutors, but also their judges, and so there’s intense politization. And social scientists have shown despite the fact that many people have faith in judges, that when it’s an election year, the number of people who are executed, in given jurisdictions, goes up. People are responding to what they think will help them get elected, either as prosecutors or as judges. And that creates pressures in cases that are really problematic and that may drive both some of the problems with wrongful conviction, some of the problems with discrimination, and the use of the death penalty. So there’s that. There’s Congress’s complete rollback of what’s called federal habeas corpus review, which has the federal courts, who are not elected, stand as a backstop in reviewing capital convictions and Congress decided that the federal courts were reversing too many state court convictions and taking too long to review them. And in 1996 completely revamped that system, drastically cutting back on the federal courts’ power to oversee capital convictions in state courts. And so that’s a structural issue that the Supreme Court has nothing that it could do even if it wanted to do something about that. And finally, even if there was complete new process and no political input into state courts, and total federal habeas corpus review, even if all that was perfect, there’s yet another problem, which is the quality of representation in capital cases. You can have a zillion rights and they can be the best rights in the world. But if your lawyer doesn’t claim them for you, they might as well not exist and the quality of capital defense representation in the United States is abysmal, especially in many of the states that use the death penalty the most. They are more likely not to have statewide public defender systems which do a better job at training and retaining quality counsel, and they tend to fund their indigent defense services at ridiculously low levels that virtually ensure that the bottom of the legal barrel are the lawyers who are doing this job. So those three things the Supreme Court cannot command the purse strings of states to fund indigent defense and obviously it can’t override Congress’s decision about the role of the federal courts. And it is not allowed to change the state political systems by which prosecutors and judges are elected. So there’s a limit to what the supreme court could do,even if it were absolutely committed to trying to make the death penalty system a fair one.

Robin Konrad 36:24

So let me let’s let’s wrap up and bring it back to present day and in the conclusion of your book, you discuss the future of the death penalty and you say it’s currently more vulnerable than it has been at any point since it’s revival in 1976. So based on what you just said, I’m wondering why do you believe that is and what factors have brought us to that point and and where do we go from here? What’s the future of the death penalty in the United States?

Professor Carol Steiker 36:56

Well, one thing that’s striking is that after the Supreme Court brought the death penalty back in 1976, the death penalty was really off to the races. You know, it just immediately was used by prosecutors, once again primarily in the south, and rows and rows over the next couple of decades till it reached what we call it’s modern era peak, in the late 1990s. And when we talk about a peak, we’re talking about some really substantial use of the death penalty. So 1996 was the peak for death sentencing, where there were more than 300 death sentences in that year, new death sentences in that year alone and in 1999 was the peak for executions. There were 98 executions that year. So think of that as approximately 300 sentences, approximately 100 executions. That’s a pretty substantial death penalty. But and no one predicted this at the time including myself, but starting at the turn of the millennium the death penalty basically fell off a cliff. So that in the last couple years of years, instead of 300 new death sentences, we have around 30 new death sentences — that’s a decline of 90%. Instead of 100, 98, 100 executions, we have 20ish executions — that’s a decline of 80%. That’s just extraordinary. If you had something like that in the medical field, you’d be talking about a miracle cure. So an enormous, enormous decline in the use of the death penalty in the United States. That’s really significant, because the way the Supreme Court thinks about what the 8th Amendment prescribes, what is cruel and unusual punishment, the Supreme Court says, well, we know it’s cruel and unusual punishment if it violates the evolving standards of decency that mark the progress of a maturing society. Well, what does that mean? The Supreme Court it says we look at what state legislatures do and we look at practices on the ground, what prosecutors and what juries do with regard to the death penalty. Well, if you look at those things, we’ve had seven states legislatively abolish the death penalty in the last 10 or 15 years. This is almost like the progressive era that was like the last time in history where we had that many in such a short period of time. And we have both prosecutors and juries not seeking or returning the death penalty in anything like the numbers that they’ve done in the past, so that if you look today, we have 19 states that don’t have the death penalty at all and many more states that you could say, are de facto abolitionist states. So, Amnesty International says other countries are de facto abolitionist if they haven’t had an execution in 10 years. Well, we have 11 states that haven’t had an execution in 10 years. Where in our book, we count a slightly different way to call states inactive, as opposed to de facto abolition. We say an inactive state is a state that hasn’t executed more than three people in the past 50 years. And they’re slightly different, 11 states that haven’t done that. But whichever way you count, you get to 19 plus 11 is 30. It was 30 states that the Supreme Court relied on to say that the death penalty is unconstitutional for juvenile offenders. 30 is the number that the Supreme Court relying on to say that the death penalty is unconstitutional for offenders with intellectual disability. So the legal architecture is there. The Constitutional architecture is there whereby the Supreme Court could say, quite plausibly, that the death penalty, as it’s being used today, is unconstitutional because it violates these evolving standards of decency. Now, will that happen? As with everything involving the Supreme Court, it depends on who is on the Supreme Court. And that is a question that’s very much up in the air. But I do think that it, if unless the death penalty experiences another historic revival, if things stay more or less the way they are, I think the Supreme Court will do this. Whether now or in another generation or so depending on who’s on the court. And I think that that is the only way where the Supreme Court is going to be abolished from sea to shining sea, if you will, because the Alabama’s and the Texas’s of the world are not going to be abolishing the death penalty through the political process, so that our supreme court is really the only way to ensure nationwide abolition. Until then, I think we will, however, continue to see a withering away of the practice.

Robin Konrad 42:18

How do you see the current administration impacting the death penalty at all? Obviously, the President is able to appoint Supreme Court Justices and could have that impact, but just even big picture, the use of the death penalty on a federal level or the rhetoric that comes with the current administration with regard to criminal justice, in general, and in particular capital punishment?

Professor Carol Steiker 42:42

Well, the Supreme Court is crucial in this story. As I’ve, as I’ve said in the book and say, often the only way we’ll get nationwide abolition is through the Supreme Court. And so the Supreme Court is crucially important and the ability to appoint Justices is tremendously important. So there’s no question that the current administration has a huge role to play in that regard. In other regards. I think it’s more atmospheric than real. As I said earlier, the the federal government is really a bit player in the story. Of the almost 3000 people on death row, some 60-odd are federal prisoners. They’re not a big part of death row and only three of the almost 1500 executions were federal executions. So I don’t see the federal government likely to ramp up hugely even if it did, even if it executed three more people that, that wouldn’t be a huge contribution to the death penalty, use of the death penalty in the United States. Rhetorically, the court, the president ,and Attorney General Jeff Sessions have done a lot to promote the death penalty, including the Attorney General’s direction to the US Attorneys to use some of the provisions in the US code to prosecute drug dealers who caused death through, say overdoses, as capital murderers and I think we have yet to see whether that is rhetoric, or whether the federal government is really going to commit the kind of resources that would be necessary to try to turn that rhetoric into a reality. I’m somewhat skeptical of that, but we’ll have to wait and see.

Robin Konrad 44:41

Thank you so much Professor Steiker for joining us today. It’s been an enlightening conversation and we were just thrilled to have you here with us today.

Professor Carol Steiker 44:49

Thank you, Robin. It’s been a pleasure.

Robin Konrad 44:51

Listeners can find the book, “Courting Death” online or at your local bookstore. To learn more about the death penalty, visit our website at www.deathpenaltyinfo.org and make sure you subscribe to our podcast to ensure that you never miss an episode of Discussions with DPIC.