It took Judge Blackmun less than a year to leave the court, but interestingly, he began writing dissenting opinions in all the remaining death penalty cases, beginning with the sentence Justice Marshall first used: “Stand by my point of view in Callins v. Collins. He was inspired with great confidence by Marshall and Brennan, who were not yet on court in 1994. It was another Furman dissident and Republican commissioner who changed his mind. But the biggest change has been the development of evidence of mitigation. The Court has requested individual sentencing in capital cases, which is not required in non-capital cases. We have all kinds of mandatory sentences in non-death sentences: three-shot laws, mandatory and mandatory minimum improvements, and everything else. Only the main accused have the right to have their life story presented. But it`s a pretty robust law, and therefore capital punishment advocates have really learned how to do it, and as my brother Jordan and I have written, this has been a big cause of the massive reduction in the use of the death penalty over the past two decades.
Lawyers have become much better at humanizing their clients and explaining how capital crimes can happen, and juries are reluctant to impose the death penalty, even in truly horrific cases. The mitigating power in capital cases has inspired many lawyers and public defense firms to investigate and conduct mitigation presentations, even in non-capital cases, in order to combat some of the excessively harsh sentences that lead to mass incarceration. I think that is a problem that could arise. I am certainly thinking of solitary confinement and restrictions on the use of life sentences without parole, whether or not those sentences are unconstitutional. I think lawyers will address these issues because they have clients who could benefit from them, but in practice, the Supreme Court is not really where you want to be with these cases now. I think it`s highly unlikely that they will receive an extension of the Supreme Court`s Eighth Amendment protection, when some state courts might make more sense for these cases. Each state has an equivalent of the Eighth Amendment. Sometimes in exactly the same language – “cruel and unusual” punishment. Punishment sometimes “cruel or unusual”. Sometimes in addition to or instead of a proportional punishment requirement. Then there was Baze v.
Rees in 2008. Judge John Paul Stevens, the Ford-appointed judge who was not in court for Furman in 1972, but joined the court shortly before Gregg in 1976. Along with Justices Powell and Potter Stewart, Justice Stevens drafted the majority opinions in Gregg and the four accompanying cases that essentially reinstated the death penalty. It was the plurality of the death penalty that inaugurated the modern death penalty. But Stevens jumps off the boat in 2008 and says: Now, I`m convinced that the death penalty is unconstitutional, even though Judge Stevens, unlike Justices Marshall, Brennan, and Blackmun before him, says he will uphold the death penalty under Eighth Amendment jurisprudence out of respect for precedent. STEIKER: Strong defense work has changed prosecutors` tendencies. Prosecutors don`t want to lose. Often, defense attorneys present their mitigating evidence to prosecutors before trial and say, “Hey, look.
Look at all this. Our guy will beg for life, but you have to give him life. That`s how a lot happens and a lot of it spills over into non-capital affairs. For example, many non-capital defense offices have mitigation teams and mitigation training. Condemnation work has always been the neglected stepson of defense attorneys, but I think what Capital Advocacy has shown is how powerful it is and how systemically it can be used in the non-capital space. The Supreme Court later struck down this prohibition of disproportionate sentencing in Harmelin v. Michigan, 501 U.S. 957 (1991), but stated in dicta that in extreme cases, a disproportionate sentence could violate the Eighth Amendment. This view was subsequently expressed in Lockyer v.
Andrade, 538 U.S. 63 (2003), which states that an approximate requirement of proportionality is available only in “extremely rare” and “extreme” cases. STEIKER: Oh, sure. One of the ways the Eighth Amendment law has affected the non-capital context is the way the court has used it in the context of the lives of young people without parole. These cases are not death penalty cases, and yet the Court has used its powerful Eighth Amendment jurisprudence to say, first, that minors who do not kill people cannot receive the death penalty. It was Graham v. Florida in 2010. And then, to say two years later, in Graham v. Miller, that even minors who kill people cannot be sentenced to life without probation like adults. STEIKER: Justice Marshall was a full-impact litigation strategist.
He was the one who killed Brown v. Board of Education, but this decision did not emerge from the mind of Zeus. He had litigated civil rights cases for decades, so I suspect he would take a long-term view.