← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Death Penalty Dust-Ups at the High Court
00:46:47
The robes are on but the gloves are off when it comes to capital punishment.
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- [00:05]
A
It's very hard to defend the death penalty and they don't want to be in that position. So instead they want to keep hammering on the table and say, but it's constitutional and therefore states should be allowed to do it and therefore we shouldn't have to try to defend it on its merits.
- [00:29]
B
Hi and welcome back to Amicus Slate's podcast about the courts and the Supreme Court and the rule of law. I'm Dahlia Lithwick. I cover many, some, most of those things for Slate. This week brings us to a topic we actually haven't addressed really directly on the show in, I think, a number of years, and that is the death penalty. The last few weeks have actually brought us a raft of incredibly divisive and I think even rancorous ugly public fights on the court around capital punishment, which is very strange given that the number of executions in this country continues to drop. And yet a Supreme Court, presumably more devoted than ever to proving that it all gets along all the time despite everything, has been actually willing to punch and scratch and pull hair in a series of big death penalty cases in recent weeks. This culminated a week ago in a doozy of a ruling about how painful an execution can be. We wanted to try to understand why these death penalty cases seem to strike so deeply into the heart of the justices moral reasoning about the world and why they're willing to get so publicly mad about it. To do that, we have invited on Professor Carol Steicher. There is almost nobody out there who knows this better. She's the Henry J. Friendly professor of Law and Faculty Co director of the Criminal Justice Policy Program at Harvard Law School. She specializes in criminal justice with a special focus on capital punishment. And her most recent book, Courting Death, the Supreme Court and Capital Punishment, co authored with her brother Jordan Steicher of the University of Texas School of Law, was published by Harvard University Press in November 2016. My friend Link Kaplan called it, quote, the most important book about the death penalty in the United States, not only within the past generation, but arguably ever. End quote. Their research is sweeping. It is devastating about the ways in which the death penalty is currently administered. And Carol, it is just a thrill to have you on the podcast with us today.
- [02:40]
A
So happy to be here, Dalia and.
- [02:42]
B
I thought maybe we could start, if we could, with the pair of religion cases that aren't exactly death penalty cases, but they sure raised temperatures this winter. First we had the court in February issue a really striking decision in a case involving Dominique ray. The court by 54 margin, the conservative justices in the majority announcing that an execution is going to go forward, even though the Alabama prison allows a Christian chaplain in the room, but blocks the imam. And that order prompted a pretty stinging rebuke from Justice Elena Kagan, who said that this was just a shocking and unconscionable intrusion into his religious freedom. Can you talk a little bit for a moment about what it is about that case? And it seemed at one level that this was simply the court giving preference to Christian pastors. In your final moments. There has to be something more complicated than that, right?
- [03:43]
A
Well, at one level, you could say, look, these are two topics you're not supposed to talk about at dinner parties because they get people so riled up, the death penalty and religion. So this has got both of them. So you could imagine the temperature is already high. But I think partly what's going on here is the reason that the majority gave for not staying the execution from Alabama had to do with the timing of the inmate's objection, which actually was within only a few days from learning that his imam would not be permitted to be present at his execution. But it reflected, I think, one of the things that the conservatives on the court really hate about death penalty litigation, which is they have this sense that they're being taken for a ride, that delays are being used strategically and unethically, and they see that happening even when it's not there, as it clearly was not in that case.
- [04:53]
B
So that's interesting, because in a minute we're going to talk about how even in recent days, the court is still relitigating that Ray decision for I think, the reasons that you're throwing out there, which is that there's this imputation, at least from Justice Alito and some of the conservative justices, that death penalty lawyers are just in bad faith, that they're just gaming the system and they're doing everything they can to throw a wrench into, you know, states protocols. And I guess I just wonder, can you give us a history, Carol, of when that language that these people are sort of in a racket and they're trying to game the system, starts leeching into the language around the death penalty cases?
- [05:43]
A
I'm not sure there's a date certain, but I think perhaps at least a few years back, in the lethal injection decision prior to this one, Glossop V. Gross In 2015, the majority of the court, which were the conservatives on the court, plus Justice Kennedy, rejected a challenge to the use of the drug midazolam in an execution. And the majority pointed out that well, why are states experimenting with this strange new drug whose efficacy and safety and lack of cruelty are in doubt? Well, it's because anti death penalty advocates have successfully managed to convince pharmaceutical companies to withdraw more customarily used and effective drugs off the market. And so the court in that case kind of conflates a broader anti death penalty movement with the individual lawyers litigating on behalf of individual clients in death penalty cases. So I think that case, Glossop v. Gross 2015, is the first time you really see that conflation.
- [06:56]
B
And my memory of Glossett, both the oral argument and also the hand down day when the decision was announced in June, was that real acrimony was sliding into the rhetoric. I remember Justice Scalia reading unprepared remarks from the bench, a concurrence that he hadn't planned on reading, kind of attacking Justice Breyer, who had used Glossip as an opportunity to kind of relitigate the totality of the death penalty in America. And I guess it raises this question that's going to thread through our conversation, which is why this, why is the death penalty the area where the justices are willing to kind of rip off the mask and say the other side is just awful. They're all a bunch of liars. Everyone is unprincipled. This whole thing is pretextual. I can't even think of other contexts, even abortion, even the religious liberties cases, where there's this level of just assumption that the other side is all just liars. Am I wrong about that?
- [08:04]
A
It is striking. I think what you're seeing is striking. I'm not sure it's completely different from the other areas where the justices get really hot under the collar. Abortion, affirmative action, voting rights, basically anything to do with race politics, often criminal justice, certainly abortion rights, because these are what you might think of as culture war issues. So they're not just hot button issues. They're issues in which people use those issues to define themselves in their politics, in their identities, in their place in American society. Not every issue that people disagree about, I think belongs in the canon of the culture wars, and this is certainly one of them.
- [08:58]
B
So then last week, the court stays in execution very, very similar circumstances to the Dominique Ray case we just talked about. This is a Texas inmate, Patrick Henry Murphy, who wants his spiritual advisor in the chamber before his execution. He, in this case, wants a Buddhist spiritual advisor. And this time the court stays the execution, seemingly, they say, because it had been filed in a timely fashion. As you point out, the claim they made in Ray was that it was not timely. But again, I think the whispering out in the world was, well, either that's because Ray was black and Patrick Henry Murphy was white, or the court disfavors Islam and loves Buddhism, or they learned from the spanking they took after the Wray case. Do you have a theory about why the cases go differently?
- [09:51]
A
You know, it is a bit of a head scratcher. I do think all three of those things occurred to me probably in the reverse order. There was really pushback against the court's decision in the Alabama case. And from a lot of people who are, you know, sort of sympathetic to the conservatives on the court. I think religious freedom is one of those, you know, cross cutting, culture war ideas. And I also think that the fact that you had a black Muslim in the first case and a white Buddhist in the second case, where Texas already permitted both Christian and Muslim spiritual advisers, that it then became like, whoa, so you're going to leave just the one Buddhist out? It just, it seemed, yet perhaps a bridge too far there. So, you know, no reason it can't be all of those things. I think a lot of people were scratching their heads because there really didn't seem to be a dime's worth of difference on the underlying claim. And I think the original rationale for the first claim was so preposterous, as I think Justice Kagan really explained quite clearly, that I think the court was ready to walk it back.
- [11:13]
B
So that brings us to Russell Bucklew. And this is a death penalty case from Missouri, a decision that came down, I guess, a week last Monday, and the court issued a death penalty decision that I think sent people into orbit. I think I'm not overstating it, the response to the courts. And we're back into the world of lethal injection. We talked about Glossip, but this is a death row inmate. And I guess I should say here there's no dispute that he did what he's accused of doing. We can say the same about the other cases we've discussed. There's no question that he was guilty. But he was claiming that death by lethal injection would cause severe harm and suffering because of a rare disease that he has that leads him to have these tumors that will, I guess, just make it impossible for him to breathe if he has the standard lethal injection protocol and they could rupture and it could be gruesome. And again, the court splits. 5, 4. You noted that Anthony Kennedy was in the majority in Glossip. Now we have Neil Gorsuch in the majority, along with Brett Kavanaugh. The level of sort of atmospherics. Again, claims of bad faith in this case are off the charts. Can you fill us in on what happens in Buckleu?
- [12:43]
A
Yeah. So Bucklew is an inmate, or was an inmate on death row awaiting execution. And he had a very rare condition that caused his oral cavity to be filled with these blood filled tumors that actually prevented him even from being able to sleep lying down because they would block his airways. And the claim was that the lethal injection protocol that was used would cause those tumors to rupture and fill his mouth and his throat with blood, causing him basically to suffocate in his own blood before the lethal injection protocol itself could kill him. And there was expert testimony that that was the case. And what's interesting in this case is Bucklew was not arguing, as the two previous lethal injection cases that came to the court did, that the lethal injection protocol was unconstitutional for anyone. Bucklew was arguing it was unconstitutional simply for him because of his extremely rare medical condition that was unquestioned that he had this condition and that he had these tumors. But the court was really divided on one whether his experts truly made the case that he would suffer for very long before the protocol kicked in. They disagreed about whether he would suffer more through the lethal injection process or through the alternative death by gas that he was suggesting. And they also disagreed about whether he should have to suggest an alternative which the Court had imposed on people challenging wholesale lethal injection for anyone, whether that would apply to him when he was challenging it only for himself alone. So there was incredible disagreement. Why was there so much disagreement about these facts? I think there's something about these lethal injection cases. This is the third one to make it to the Court. There was one in 2008, one in 2015, and this one. And you would think that these cases would stick to the question of lethal injection. But instead, in those first two cases, there were liberals on the court, first Justice Stevens, then Justice Breyer, and Justice Ginsburg, who took those cases as an occasion to attack the death penalty wholesale. And in this recent case, the conservatives in the majority took the occasion to kind of attack the death penalty litigation strategy wholesale, even though none of those things were really at issue. And I think your question, Dalia, is really a good one. Why is it that the lethal injection cases seem to call forth this very hot, very broad discussion about the death penalty? And I think it's because when you're, when you're walking into the execution chamber, when these cases kind of force us really to be up close and personal with the mechanics of death, that it really puts both the supporters of the death penalty, you know, in a position where they have to justify this very unseemly violence. And it puts the opponents of the death penalty in a position where they can really point to the. The moral problematics of being one of the few countries left that does this.
- [16:22]
B
So you're saying something really interesting, which is part of the reason the conservatives in this case, it's Justice Gorsuch writing in Bucklew, are snapping back, is because they, I think you're saying, and I think this is interesting, they bitterly resent the idea that Justice Stevens or Justice Breyer in Glossop, Justice Sotomayor, use these cases as a mechanism to essentially write in their dissents, these enormous briefs on this is why the death penalty sucks. And they cite to all the racial bias, and they cite to the economic bias, and they cite to all of the million ways, and this is all the stuff, obviously, that you have researched throughout your career, that the system is broken. And it seems to me that what you're saying is that Justice Alito and Glossip, Justice Scalia and Glossip and now Justice Gorsuch don't want to have that conversation around lethal injection protocols. They want to talk about lethal injection, and they don't want to have this broad and deep conversation about systemic flaws in the system, that the bad faith isn't just the death penalty lawyers, it's these justices, these liberal justices, who are trying to use these cases as vehicles to take the whole system down. Am I characterizing what you're saying correctly?
- [17:46]
A
I think you are. And I think one of the reasons they don't want to have the conversation is it's kind of an untenable conversation on their side, like a lot of these concerns about the death penalty, about people being wrongfully convicted, about the enormous price and inefficiency of the death penalty, about how the fact that it's in free fall around the country makes it impossible for it really to contribute meaningfully to deterrence or its, you know, purported goals of providing retributive justice. It's very hard to defend the death penalty, and they don't want to be in that position. So instead they want to keep hammering on the table and say, but it's constitutional, and therefore states should be allowed to do it, and therefore we shouldn't have to try to defend it on its merits. I think it makes them very angry and uncomfortable to be put in a position where they have to try to defend it on its merits.
- [18:40]
B
The immediate reaction I think to Bucklew was that Gorsuch had done something different. He'd gone beyond just saying, you know, you haven't made a showing that the death will be painful and that you haven't come up with a better alternative. And we can talk about that in a minute. But more profoundly, he seemed to be putting into writing right into the canon that the Constitution, I think he wrote, quote, does not guarantee a prisoner a painless death. Something that of course, isn't guaranteed to many people, including most victims of capital crimes. I mean, he was going quite far down the path that Justice Alito has trod to say, you actually don't have a right to a painless death. As long as the state isn't making it extra awful, the state's doing nothing wrong. And that this has called into question these questions about evolving standards of decency under the Eighth Amendment, that what Gorsuch did say some commenters, is blow up the whole notion that we are evolving away from cruelty and punishment. Is that an overreading of what he did?
- [19:47]
A
I do think it's a bit of an overreading. You know, it's true that he uses language that echoes some of the language that Justice Thomas and Justice Alito have used about in assessing whether, say, an execution method is cruel, we have to look at whether it's intended to be cruel or whether the suffering of the inmate is super added and intentional to the, you know, just the taking away of life. But I don't think that there's anywhere in there where he actually says, we don't do evolving standards of decency. We're throwing out the last several decades of opinions that have developed a whole methodology around evolving standards of decency. So let's just hold the horses on that one. But I do think that some of the language is, you know, deliberately echoing more extreme positions taken by Justices Thomas and Alito in their opinions in this case and prior cases. I also think that the comments about late rising claims were entirely gratuitous. There was nothing late rising about any of the claims in this case. And so there was a part of the Bucklew opinion that discusses how late rising claims should, you know, very rarely be considered valid. And I just know where that was coming from. I think that's an example of the majority in this case reaching for an issue that's not on the face of the case, not involved in the case, but trying to make the context broader and talking more about death penalty litigation writ large rather than the issues in this case.
- [21:31]
B
We know that you value the journalism we do here at Slate. And now more than ever, this work needs your support. The very best way to support our work is via our membership program, Slate Plus. With a Slate plus membership, you can enjoy this and all Slate's podcasts ad free and you will be supporting our journalism work at the same time. Sounds like a win win to me. Oh, and you can get a free trial. To check it out first, just go to slateplus.com amicus now back to our conversation with Professor Carol Steiker from Harvard Law School about the recent capital punishment cases before the Supreme Court. And can you talk for a minute, Carol, just for listeners who aren't fully read into Eighth Amendment jurisprudence, when it we thought went out of fashion to talk about cruel and unusual punishment and the Eighth Amendment in terms of the Framers would hang little kids, the framers beat people senseless and started thinking in terms of evolving standards of decency. This notion that just because something wasn't deemed cruel at the founding doesn't make it okay. I mean, that I think I can say with some confidence that that was once an established truth. Can you give us a little bit of a history of when that peaked and maybe if it's ebbing? Yeah.
- [22:54]
A
Well, the court started using the evolving standards of decency language, actually middle 20th century. But the real peak has been in the last 20 years where the court for in a series of cases really has narrowed the scope of the death penalty under the Constitution. So the court in 2003 said for the first time that people who have what the court then called mental retardation, what we now call intellectual disability, could not be executed under the Constitution because it would offend evolving standards of decency. Two years later, the court said juvenile offenders could not be executed because it would violate evolving standards of decency. Three years after that, the Supreme Court said that people who commit interpersonal crimes less than murder, even the aggravated rape of a child, could not be executed because that would violate evolving standards of decency. And in fact, the Court applied these Eighth Amendment precedents, even outside the death penalty to say that juveniles could not get sentences of life in prison without possibility of parole unless they'd actually killed somebody. And even if they'd killed somebody, they couldn't get them as a matter of mandatory imposition. They'd have to be considered as juveniles and have a discretionary judgment made by a court. So the court has in the last 20 years or so really constrained not just the death penalty, but the practice of life imprisonment without possibility of parole and has developed A whole way of explaining how we know when punishment practices violate evolving standards of decency, which includes looking at trends in modern society. And even. And this, Justice Scalia did not like this at all. And even what's happening outside of the borders of the United States in our peer countries. So the Court has really embraced and developed and expanded in case after case after case, a non textual, non original, evolving view of what the Eighth Amendment means.
- [25:10]
B
And you're not saying this out loud, but let's say it out loud. An awful lot of that took the shape of Anthony Kennedy, right? I mean, he was at the forefront of so many of the cases you cited. He was, I think I even want to say, creeping toward my sense was, toward the end of his career, a more and more expansive sense of what other countries were doing, what social mores and norms and science, certainly brain science, was telling us about behavior. So one of the things it feels as though you're saying is that it's not so much that what Justice Gorsuch is doing in terms of the actual language of evolving standards of decency, but what it is is the substitution of Kavanaugh for Kennedy means that we may never go back to that kind of capacious view of, as you said, non originalist, non text based. Just. We're one of a handful of countries that still does this, and it's probably wrong, which is what it feels felt like Justice Kennedy was working his way toward. Right.
- [26:18]
A
It certainly did feel that way. And I think people who were looking for constitutional abolition of the death penalty had hopes in Justice Kennedy that he would lead the way there. Obviously, that's not going to happen. And I think you're quite right that this Court is not going to further that project. A different question is whether this Court would undo that project that I'm more skeptical about. I think the Chief is very concerned about the Court looking partisan and the Court looking political and maintaining its legitimacy. And undoing what is now such a deeply entrenched line of jurisprudence would look pretty bad. I would not expect this Court to further it. But I think I'd also be surprised if they really said, oh, well, now that Justice Kennedy's gone, let's just rip it all out, root and branch and start again. I would be surprised to see that as well.
- [27:14]
B
And can you explain? Because I'm guessing that listeners find the other part that we haven't talked about in Bucklew, which is just deeply and profoundly perplexing, that Bucklew is in effect told he has to. I think the quote I read was build his own gas chamber. That the burden post gossip is for him to come to the court and say, okay, I've got this really good alternative to lethal injection, and here's how it happens. And let me explain it to you in great detail, because I'm in a fantastic position as a death row inmate to do that. Can you help us understand how it came to be that the inmate is now tasked with giving the court to the court's very high standards of what is workable, a better alternative to the death penalty than the one that he's been faced with?
- [28:05]
A
Yeah, talk about building a better mousetrap. It's kind of mystifying. And it started in 2008 with the court's first lethal injection case, case called Bayes v. Reese, where the court said for the first time, like, if you're going to challenge globally an entire method of execution, says no one can be executed by lethal injection, you need to come up with an alternative. And the court doubled down on that in Glossop vs Gross. But in each of those cases, we were talking about global challenges where if that method couldn't be used, then no one in a state that had that method could be executed. So in some sense, it was an abolitionist challenge to the death penalty. And I think the court was very much equating individual lawyers litigating on behalf of individual clients with this, like, suspect guerrilla war, I believe one of the justices calls it in one of the opinions against the death penalty and saying that we're going to stop this guerrilla war by making you essentially turn the weapons on yourself. That if you're going to raise a challenge to the lethal injection protocol, you have to come up with an effective and easily readily available mode of execution yourself. It was head scratching at the time, but has the court said it twice? And so we assume that's the law at this point. What was odd is that that's not what Bucklew was doing. He wasn't challenging the entire state's, you know, mode of execution. He was just saying, hey, it's not going to work for me. And to say that the individual with a special medical condition is now going to have to research his condition and get experts to say might be better. That was really a new extension of these previous rulings.
- [30:05]
B
You said this in passing and I said it in passing, but let's say it out loud again. And that is some of the writing in Bucklew goes back to Ray. Both Justice Gorsuch and the dissent are still fighting about the Imam case in Bucklewood weeks Later. And I wonder if you have. I mean, we talked about this ways in which Ray seemed to scrape a nerve. And certainly I think Kagan's dissent was pretty powerful in Ray. Is this a. Is it saying too much to say that the. Just the fact that the justices are letting their anxieties and their anger and I think some of the public shaming around Ray start to work its way into a case that actually has nothing to do with Ray. Now, you've said Gorsuch turns this into, you know, this is a problem because of these last minute death penalty stay requests, and that's how he says this is relevant. But again, I can't think of a lot of cases, again, it happened in Glossip where Justice Scalia was kind of mocking Justice Breyer for litigation in totally unrelated areas. But again, there's this strange way in which they can't seem to stop picking at the scab.
- [31:30]
A
Yeah, I think there is that. I think that the four liberals who dissented in Ray were genuinely outraged. It was really. It seemed so unfair. I mean, here was an inmate who'd raised the claim within five days of learning that he wasn't going to be allowed to have his imam present so Hartley can be accused of dragging his legal feet on the issue and yet had it denied out of hand on that ground alone. So it just seemed like a really outrageous and wrong decision. And I think having made that decision, the majority, the conservative majority, realized pretty quickly they'd stepped in it. And I think they got very defensive about that. And I think the liberals realized their advantage there and were pushing that in the very next case. And, you know, why are they doing this? Like, once again, I think these cases make everyone super uncomfortable. The crimes are horrible, the executions are horrible, and each side feels defensive about their position. The supporters of the death penalty, that they're defending such an aberrant and apparently gruesome process, and the liberals, because they're, you know, raising claims on behalf of someone who's committed such a heinous crime. And I think it lets everybody's emotions run away with them.
- [33:02]
B
I want to talk about race and the death penalty because we haven't talked about it. So let's talk for a minute about Flowers versus Mississippi. It was argued at the end of March. This unfolds like a Grisham novel in real time. Right, Carol? I mean, this is just a prosecutor who's tried the same guy for these multiple murders six times. Can you set the table and tell us a little bit about how it is that after the sixth time, we're at the Supreme Court talking about peremptory challenges.
- [33:33]
A
Yes, it's quite amazing. It is the same prosecutor who's tried the same defendant six times for the same capital murder. The first three times, the case was overturned by the Mississippi Supreme Court. This is not something that happens every day. And the first two times for prosecutorial misconduct of a more generic type, and the third time for exactly the kind of misconduct that's at issue in this most recent time, that is for striking all of the black jurors from the jury. So when prosecutors and defense lawyers are picking juries, they get to object to jurors who might be biased. And the judge has to make a ruling. And if the judge agrees that the juror might be biased, the juror will be excused, as we say, for cause. And there are obviously unlimited challenges that you can make for cause because you don't want any biased jurors on the jury. But pretty much every jurisdiction, and it varies jurisdiction to jurisdiction, give both sides a certain number of what are called peremptory challenges. These are not challenges for any cause at all. They're challenges for any reason and no reason. They allow each side to just strike a certain number of jurors in order for the remaining jurors to be ones that both sides are more or less comfortable with. And it's for any reason and no reason, but obviously not for reasons that are prohibited by law. So the main reason, and there's good history for this being a reason that's prohibited, is you cannot strike people on the basis of their race. That has been the case since the court's ruling in a case called Batson since the 1980s. Now, in this case, this prosecutor, every single time he tried this case, would strike almost all of the black people. In fact, he struck all of them until this sixth time he tried it. So the first three times, they were reversed. The next two times, the jury was deadlocked and couldn't agree to convict the defendant. And the sixth time, the prosecutor finally let one black juror sit on the jury and struck all the others. And so this case goes up to the court, and the question is whether you can consider not just that he struck all the other jurors in this case, but whether you can look back at the other five times this same prosecutor tried this case case and count his behavior in those other five tries as reflecting on what his motive might have been in this case for striking the black jurors. And, you know, I'm not usually one who thinks I'M sure about how these cases are going to come out, but I would take bets that the Supreme Court is going to reverse the sentence of death based on the prosecutor's really extreme and egregious pattern of behavior in this case.
- [36:41]
B
And it's probably worth flagging that Clarence Thomas, who speaks almost never, actually spoke up at this argument in Flowers.
- [36:51]
A
Would you kind enough tell me whether or not you exercised any peremptories? I was not the trial lawyer. Well, was it. Were any peremptories exercised by the defendant? They were.
- [37:04]
B
And what was the race of the jurors struck there?
- [37:09]
A
She only exercised peremptories against white jurors. But I would add that her motivation is not the question here. The question is the motivation of Doug Evans.
- [37:21]
B
So Thomas is actually talking about Flowers attorney striking white jurors here. In other words, he's trying to, I think, whataboutist his way out of this case. Right.
- [37:36]
A
Well, you know what's so ironic about these cases? The Supreme Court, actually, even the conservatively oriented Supreme Court, has given quite a number of wins to defendants on these issues. You know, there's a, a famous case from Texas called Miller L. More recently, there's a famous case from Georgia called Foster. And in each of those cases, Justice Thomas was the sole dissenter in the case. And so it's ironic that the single black justice on the court is the one who's least likely to see racial, racial discrimination even when it's flagrant and egregious. The Foster case, which was the one just three years ago, the prosecutor had highlighted all of the black jurors on the jury list in green, had written their names as the first five names on his list of definite noes, and had labeled them B number one, B number two, be number three and so on, and had said ridiculous things about why they couldn't sit on the jury. So one was too young, at the age of 34, even though the prosecutor sat a 21 year old white person, and another, a black prospective juror, had a son who'd been convicted of stealing hubcaps from a car in a mall parking lot, which the prosecutor said was essentially the same crime that was committed in this case, which was the burglary, rape and murder of an elderly white woman. I mean, just ridiculous stuff. You can't make this stuff up. But Justice Thomas dissented in that case too. So it's incredibly ironic that it was in this case, in the Flowers case, that Justice Thomas asked his first question in like, what is it, forever?
- [39:36]
B
Couple years. Couple of years it's been, yep.
- [39:39]
A
And you're right. It's a what about them? Case saying, well, what was the race of the people that the defense lawyer was striking in a. Which is completely irrelevant. It's not like the prosecutor objected to any of that or gave that as a reason for why the prosecutor did what the prosecutor did. It was just an attempt to deflect attention away from the main story here.
- [40:01]
B
It seems to me that what you're raising is such an important problem in this litigation, which is the quantum of evidence. Right. When you have goes to a black church. Now, we know this probably has something to do with race. And in Flowers, the claim is there's nothing like that. Just because he did it in five other trials, there's no real quantum of evidence to show that he was exercising his peremptories to get rid of black jurors. And I feel like what you're saying is the problem in these cases is that unless the misconduct is flagrant to the point of laughable, we can't tag anyone for it. And that the court uses these cases based on these extreme sets of facts to set baselines in a world in which. And I think all of your research shows this race taints every single part of the death penalty process, not just the cases where people use green highlighter.
- [41:03]
A
Exactly. I think that's very well said. I also think what's striking about these Batson cases, these jury strike cases in particular, is that it's easy to look at these cases and say, there's a bad apple. There's a prosecutor, A single person who did this might have done this repeatedly, but it's like a bad person. It's not a system problem. It's a bad person problem. It's similar. The court was very happy to reverse the conviction of a death row inmate, Duane Buck, a couple years back now in Texas, because an expert witness at his death sentencing testified that black people were more likely to be dangerous in the future than white people. And dangerousness in the future being an issue that a Texas jury had to say yes to in order to impose the death penalty. And the Supreme Court said, absolutely not. We've got to reverse it. But in a case like that, it's a bad expert witness or we've got a bad prosecutor. These cases I think of as a form of catnip it for the court because they get to say, we take a stand against racism in the criminal justice system, especially in these high profile capital cases, but they won't take a stand, and they steadfastly refuse to take a stand when there's evidence of systemic bias. So in the 1987 case of McCleskey v. Kemp, where a statistical study showed that black people who killed white people were 11 times more likely to get the death penalty than the reverse racial combination, the court said, well, that's just patterns. We don't look at patterns. You have to show us something in your particular case. And so I feel like these cases, outrageous as they are, are in some way a sleight of hand away from where the much more endemic problems are.
- [43:06]
B
So one last question, which maybe sweeps in your endemic problems point, which is the death penalty is on the decline in a huge way, right? In 2018, 25 people are executed. That's the fourth year in a row we've been under 30. It's down hugely from the peak of 98 executions that we saw in 1999. Death sentences are down, and public support has fallen. I mean, can't we just say the death penalty is dying and stop fighting about this? Isn't it going to just end? Or is your concern. And again, I know this is at the heart of your book, that even if there's just 12 executions a year, if they are profoundly tainted by race and class and. And if we are putting innocent people to death, 12 is still too many. But it is a very, very strange thing that all the trends seem to suggest that the death penalty will be gone in our lifetimes. Am I wrong?
- [44:09]
A
I hope that you're right. I think if trends continue, the death penalty will certainly be tremendously diminished from its heights in the 1990s, which were as high as anything we'd seen since the 1950s. So we're coming down from an enormous peak, and we're now looking more like where things were perhaps in the 1960s, as another era in which the death penalty took a deep dive. But, you know, that should be a lesson for us. The 1960s were an era in which the death penalty took a deep dive and then, like a rollercoaster, soared up again to the 1990s. So I hope that the death penalty's decline will not be reversed. But I think absent something more categorical, like a constitutional ruling against it, there's always the possibility of resurgence. And, you know, that's happened in some other parts of the world as well. There are places in which a decline in the death penalty is followed by its abolition, and there are places in which its decline is followed by its resurgence. So what our fate will be kind of remains to be seen.
- [45:31]
B
Carol Steiker, is the Henry J. Friendly professor of Law and Faculty Co Director of the Criminal Justice Policy Program at Harvard Law School, and her most recent book, Courting the Supreme Court and Capital Punishment, co authored with her brother Jordan Steicher of the University of Texas Law School, was published by Harvard University Press in November 2016. Carol, this has been unbelievably helpful and illuminating. Thank you so, so much for your time.
- [45:57]
A
Been a pleasure to be with you, Dalia.
- [46:05]
B
And that's all she wrote for this episode of Amicus. Thank you so much for listening in. If you'd like to get in touch, our email, as always, is amicuslate.com and we love your letters and you can always find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is managing producer of Slate Podcasts. And we'll be back with you with another episode of Amicus in two weeks.