From www.Scotusblog.com

This article is part of a symposium on the jurisprudence of the late Justice Ruth Bader Ginsburg.

Jeffrey L. Kirchmeier is a professor of law at CUNY Law School and author of Imprisoned by the Past: Warren McCleskey, Race, and the American Death Penalty.

When Justice Ruth Bader Ginsburg was appointed to the Supreme Court in 1993, she had never ruled in a death penalty case. She brought to the court her experience both as an attorney protecting oppressed groups and as a court of appeals judge who embraced judicial moderation. During the subsequent years, her support for individual rights and her judicial moderation informed her approach to capital punishment amid growing societal concerns about the unfairness of the death penalty system.

In both public statements and her votes, Ginsburg recognized problems with the implementation of the death penalty. For example, during a lecture in Maryland in 2001, she discussed poor legal representation of capital defendants and stated that she was “glad to see” Maryland pass an execution moratorium bill. In 2011, she told law students that she hoped the court one day would hold that “the death penalty could not be administered with an even hand.” Despite those concerns, Ginsburg, taking a methodical approach, never wrote an opinion declaring the death penalty unconstitutional in all cases.

Some justices have taken the broader position. Justices Thurgood Marshall and William Brennan rejected the return of the death penalty in the 1970s by reasoning that capital punishment violates the Eighth Amendment of the Constitution. Marshall and Brennan dissented in every case upholding a capital sentence through the rest of their careers.

Other justices later took that position near or at the end of their judicial careers. In February 1994, during Ginsburg’s first term on the court, Justice Harry Blackmun wrote a dissenting opinion concluding that the death penalty is unconstitutional. Around that same time, former Justice Lewis Powell revealed he regretted his votes upholding the death penalty. Similarly, and also during Ginsburg’s time on the court, Justice John Paul Stevens wrote in 2008 that the death penalty is “patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Unlike those justices, Ginsburg was not on the Supreme Court for the landmark death penalty decisions upholding the modern death penalty in the 1970s and 1980s, such as Gregg v. Georgia and McCleskey v. Kemp. As a law professor, she co-authored an amicus brief for the American Civil Liberties Union in the important 1977 case on capital punishment and sexual assault, Coker v. Georgia. But her judicial experience with the death penalty largely spanned a time of declining executions, and that backdrop may have helped guide her to a more gradual approach of working with her colleagues at chipping away at capital punishment rather than sweeping broadly.

Her approach to capital punishment cases grew from a thoughtful strategic decision. She believed she could be more influential by participating directly in the court’s decisions analyzing capital punishment rather than by taking a broad position that the death penalty always violated the Constitution. Although some criticized her approach, her careful analysis drew respect from her colleagues, with justices on the other side of a case sometimes acknowledging the logic of her reasoning.

So, even though Ginsburg declared to an audience in 2017, “If I were queen, there would be no death penalty,” she approached the death penalty not as a monarch, but as a jurist, carefully carving away with a scalpel to expose the problems she saw with America’s system of executing people. She relied on precedent to try to ensure capital sentencing followed the constitutional demands that procedures be fair and reliable, while enforcing the court’s proclamations that death sentences differ from other punishments. Her approach to capital punishment was similar to her approach to other constitutional criminal procedure cases, which as illustrating a “preference for narrow rulings that adhere closely to precedent and that avoid grand pronouncements.”

During Ginsburg’s career, she did sometimes vote to uphold death sentences. But generally her written opinions and votes tended to be on the side of the condemned. Her majority decisions included Shafer v. South Carolina, involving jury instructions on the alternative of life without parole sentences, and Ring v. Arizona, in which the court held that the Sixth Amendment right to a jury required juries, not judges, to determine “aggravating factors” that would justify a death sentence.

In capital cases in which she did not write an opinion, Ginsburg’s vote was often crucial. During this century, she voted in the majority of every 5-4 Supreme Court decision in favor of capital defendants. She cast important votes striking capital punishment for people with intellectual disabilities, for juveniles and for defendants in cases in which nobody was killed.

Ginsburg also played a key role in lower-profile cases, often voting to grant stays of executions or deny applications to vacate stays. In recent years since the Death Penalty Information Center began keeping track of the statistic, no capital defendant received a stay of execution without her vote.

Despite her careful jurisprudence, Ginsburg saw broader problems with the death penalty, including limits on habeas corpus, failures to protect innocent defendants and unequal treatment based on race and other factors. She brought to her capital punishment jurisprudence her compassion for people tossed aside by society. For instance, she wrote poignantly of the risk of pain and suffering during executions in her dissenting opinion in Baze v. Rees.

Toward the end of her life, Ginsburg’s long experience led her further. Although she never wrote a sweeping opinion concluding that the death penalty in all cases is unconstitutional, her colleague Justice Stephen Breyer in 2015 wrote a dissenting opinion in Glossip v. Gross, asking that the court request briefing on “whether the death penalty violates the Constitution.” The long dissent documented numerous reasons it is “highly likely that the death penalty violates the Eighth Amendment.” No other justice joined the dissent and the call to reassess the constitutionality of the death penalty … except for Ginsburg. And in July of this year, she again joined Breyer in questioning the constitutionality of the death penalty.

While we may only speculate what would have happened had the court taken up the issue, through Ginsburg’s careful and reasoned approach in her death penalty jurisprudence, she provided a bold voice for moderating and challenging the American system of capital punishment. Her votes and analysis created an important record that remains, even as the sudden absence of her voice protecting the powerless has left a gaping hole on the court. All who care about fairness, justice and equality will miss her.

Posted in Featured, Symposium on Justice Ginsburg’s jurisprudence

Recommended Citation: Jeffrey Kirchmeier, Symposium: Ginsburg, the death penalty and strategic gradualism, SCOTUSblog (Oct. 5, 2020, 9:43 AM), https://www.scotusblog.com/2020/10/symposium-ginsburg-the-death-penalty-and-strategic-gradualism/

The 18th Annual World Against the Death Penalty Day falls on Saturday, October 10, 2020.

Here are some ideas for organizing (courtesy of World Coalition Against the Death Penalty)

1. Organize a demonstration.
2. Organize a gathering on a videoconference platform. It can take the shape of a webinar, remote workshop, conversation, a public debate or even a virtual film screening to create awareness.
3. Coordinate a letter/email writing campaign.
4. Participate in a TV show or with a community radio station.
5.  Organize an art exhibition (of artwork made by people sentenced to death, of photographs of death row, of drawings or posters) or a [virtual] theatre performance.
6.  Join the events prepared for the abolition of the death penalty worldwide.
7.  Donate to a group working to end the death penalty.
8.  Follow the social media campaign on Facebook, Instagram and Twitter: use #nodeathpenalty or click here to tweet against capital punishment!
9. Mobilize the media to raise awareness on the issue of the death penalty.
10. Participate in “Cities Against the Death Penalty/Cities for Life” on 30 November 2020.

http://www.worldcoalition.org/worldday.html

https://www.azcentral.com/picture-gallery/news/local/arizona/2020/08/26/vigil-lezmond-mitchell-only-native-american-death-row-downtown-phoenix/3441219001/

By Dan Peitzmeyer and Kevin Heade – Death Penalty Alternatives for Arizona

Published August 23, 2020 at AZCentral.Com

Lezmond Mitchell, a member of the Navajo Nation, is scheduled to be executed on Aug. 26 for crimes committed on the Navajo reservation against other tribal members.

President Trump and Attorney General William Barr chose to include Mitchell among the first five federal death row inmates to be executed in 17 years.

Mitchell is the only Native American on federal death row.

Politics put Lezmond Mitchell on death row

He was put there through a politically motivated prosecution. The U.S. Attorney for the District of Arizona, Paul Charlton, elected not to seek the death penalty. Presumably, this decision was made because the Navajo Nation chose not to opt in to the Federal Death Penalty Act (FDPA) to allow the death penalty in federal prosecutions of its tribal members under the Major Crimes Act.

However, in 2002, U.S. Attorney General John Ashcroft overruled Charlton’s decision and insisted that Mitchell be sentenced to death under a loophole to the FDPA’s opt-in requirement by seeking a death sentence for carjacking, a federal crime of national applicability.

President Jonathan Nez of the Navajo Nation has appealed to Trump to respect the culture, tradition, values and sovereignty of the Navajo Nation by commuting Mitchell’s sentence to life in prison. 

Judge Andrew Hurwitz of the 9th Circuit Court of Appeals (and former vice chief justice of the Arizona Supreme Court) has opined that just because the death sentence in Mitchell’s case is legal, it “does not necessarily make it right.” Several members of the victims’ family also oppose putting Mitchell to death. 

Those familiar with Arizona history understand the unique relationship that Native Americans have with the federal government.

Tribal sovereignty and culture should be respected. It is an affront to the Navajo Nation to execute Lezmond Mitchell.

Science, law also support commutation

If President Trump needs more reasons to grant mercy, the advances in law and psychology merit a commutation of Mitchell’s death sentence.

Mitchell was 20 years old in 2001 when he and his accomplice committed their crimes.

The United States Supreme Court has since ruled that the Eighth Amendment prohibits the death penalty for juveniles and limits life sentences for juveniles to extreme circumstances where the defendant cannot be rehabilitated.

Yet, there is scientific consensus that the legal age of 18 is an arbitrary demarcation between youth and adulthood. Developmental maturity does not occur until the age of 25 or later. 

President Trump should consider this science.

Trump has an opportunity to show that he understands his immense constitutional authority to commute federal death sentences.