3.8 Punctuated Equilibrium

3.7 Striking Death

Book Three / 8

Citations to referenced cases appear at the end of the chapter, listed in the order of their appearances in the text.

Who dies?  Who decides?  How?  

Any state that has chosen to make the death penalty available as the penalty for a crime must answer these three questions through its authorizing statute.

Who dies?  Exactly which individuals may citizens order their government to execute as the appropriate punishment for a crime?

Who decides?  In a process beginning with legislative assemblies defining certain acts as crimes, and ending with government officials putting a person to death for committing one, who makes the critical decisions along the way?

How?  Not the mechanics of the moment of execution itself — although that’s certainly an issue — but rather the method of choosing which defendants among all of them will be selected for a death penalty prosecution, and then for death.  How are those decisions made?  What kinds of legal process must be available, how much is required, which rights must be protected, and in what manner?

For legislators, prosecutors, defense attorneys, trial judges, and appellate courts, these questions are not merely academic, rhetorical puzzles.  They are questions crafted from the lived experiences of abuse and tyranny through thousands of years of the human experiment with different forms of government and law.  Though ancient in origin, they present themselves today every bit as fresh and as urgent — in a motion before a trial court, for instance, to stay the government’s hand on the alleged basis of a rash and reckless power.

The answers to these questions form the vital core of the constitutional protection of civil and human rights in this country.  They arise from the fundamental principles supporting the rule of law, in an area of law where a government, and a people, wield the greatest power with absolute and irrevocable results.  

Ultimately, the answers must comply with the constitutions of a state and of the nation.  A constitution is a nation’s inaugural imperative, the place where our laws and everyone involved with enforcing them must begin.  Like a jazz musician’s lead sheet, a constitution establishes the key and themes of a nation’s fundamental values.  A lead sheet may guide and restrain musicians as they toss notes back and forth, but it is only an outline of the music, a framework within which an ensemble may experiment and improvise.  It is not meant to dictate any particular performance, but to invite growth and change through subsequent interpretations.  Similarly, a nation’s constitution is the framework within which our laws develop and through which their meaning is interpreted.

In order to answer questions about our constitution’s meaning and what it requires of us, over the years appellate courts have developed fuller narratives that flesh out its skeletal commandments.  These narratives are in the form of the courts’ legal opinions.  Legal opinions give detailed directions on our constitutional rights and on the protection of those rights with respect to government action.  Although a full and equal implementation of them within our society remains aspirational, the guarantee in our constitution of their protections is the hallmark of the rule of law.  In the context of criminal law, several stand out.  

Above all, any government body that establishes and enforces criminal laws, and prosecutes lawbreakers, must ensure fairness.  It must provide meaningful processes that safeguard and protect substantive rights.  Those processes must be open and obvious — or at least available for scrutiny and review.  And statutes that make conduct a criminal act must not be vague or ambiguous.  They must give adequate, advance notice to all individuals that a specific conduct is unlawful.  

The system must also tend toward equality.  As much as possible and appropriate in a particular circumstance, the law should be enforced equally against all transgressors, and it must protect equally all who are similarly situated with respect to its purpose.  When these last principles are applied to the state’s power to punish criminal conduct, it means that the government must not establish either different standards for the prosecution of defendants accused of the same crime, or different penalties for those convicted of the same crime.  

Nowhere in the law is this principle more important than when it is applied to a state’s imposition of capital punishment.


Nearly fifty years ago, in the landmark decision of Furman v. Georgia, the Supreme Court ruled that the death penalty remained constitutional under the Eighth Amendment.  At the same time, however, some of the justices recognized in its application remnants of the country’s legacy of slavery and lynchcraft.*  

The Court decided that the arbitrary nature of the states’ imposition of the death penalty violated the Eighth Amendment’s protection against cruel and unusual punishment.  Specifically, the Court ruled that the disproportional imposition of the death penalty against black defendants compared to white defendants convicted of the same crimes was cruel and unusual.  The practice was widespread enough to call into question the constitutionality of capital punishment throughout the entire country.

In response to the abuse it perceived, the Court called a timeout on capital punishment until the states could devise methods of imposing the death penalty that guaranteed to all defendants the equal protections of the constitution.  It also appointed itself an arbiter of the states’ compliance going forward.  As states began to rewrite their death penalty laws, some of them would return to the Supreme Court for judicial review.  From those early cases came important safeguards intended to protect against discrimination or bias in the application of capital punishment.

The Supreme Court has ruled, for example, that a state’s procedures for imposing the death penalty, and for determining which defendants may face a jury’s decision on the death penalty, may not create a substantial risk that the sentence will be imposed arbitrarily.  Arbitrary in this context means a manner that strays from the legally permissible basis for distinguishing those who will die from those who will not.  It is a manner that invites or permits random, subjective, or prejudicial interests to influence the death penalty decision from one case to the next.  As Justice Potter Stewart wrote, arbitrary means a manner that allows death to be imposed upon “a capriciously selected random handful.”

Instead — the Court directed — any discretion to impose a penalty of death must be narrowly channeled by clear and objective standards.  The standards must provide detailed guidance to the sentencing authority, whether a jury or a judge.  They may not be so vague that over time a pattern of arbitrary and capricious application of the death penalty emerges.  Rather, as the Court has written, the pattern created by a state’s application of its death penalty statute must reveal “a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not.”

A constitutional administration of capital punishment also requires transparency.  The need for transparency arises from concerns about a government’s abuse of power when it acts in secrecy.  Unless the public knows how its government is making decisions, it may wish to understand the process, and to check its abuse if necessary, but it cannot.  A criminal defendant may have rights with respect to the process of the government’s investigation and prosecution, but without the ability to see behind the veil — to understand how critical decisions in her case were made — she cannot challenge the basis of the results.

Consequently, in one of its significant cases about the death penalty, the U.S. Supreme Court ruled that the entire process by which a state sentences any particular defendant to death must be open and apparent.  The process must enable review by an appellate court of a complete record for each case in which the death penalty was imposed.  The Court observed that it is “of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”

Importantly, a reviewing court must amplify and enforce the portions of its state’s death penalty statute intended to create a meaningful distinction between defendants against whom the death penalty is imposed and those against whom it is not.  Although state courts must honor legislative intent in their decisions and legal opinions, they must also be prepared to hold a law to the standards enshrined in our constitutions as the highest measure of justice.


Appellate opinions tell us the story of ourselves as we’ve passed through stages of civil and social development.  As the opinions make law, they may also mark major moments in our history, moments where expectations of ourselves and of one another shifted.  Evolutionary biologists speak of a phenomenon they call punctuated equilibrium whereby cellular mutations remain mostly silent in their expression for centuries and then, in a seemingly sudden moment, they appear to alter a species in a visual, perceptible, even profound way.

Similarly, a new way of perceiving ourselves and our compact with others may originate among a smaller group in society, initially unnoticed but eventually punctuating the broader social equilibrium.  At their best, the legal decisions of our appellate courts can capture these punctuations and breathe them into fuller life. 

Toward that end, the United States Supreme Court has even recognized that the Eighth Amendment’s definition of cruel and unusual punishment does not arise from the practices or perceptions of one particular era.  Rather, the constitution’s prohibition against cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 

After Furman’s suspension in 1972 of all death penalty statutes in the country, some of the states started over.  They crafted new laws for defining  which defendants could face the death penalty and for which crimes.  And they developed processes for a jury’s deliberation on death intended to comply with the Supreme Court’s understanding of what the nation’s constitution requires.  Nearly fifty years later the country’s experiment with capital punishment continues, still raising for many the same specter of arbitrary imposition and the same concerns about a process tainted with a tendency to discriminate. 

Who dies, who decides, and how are those decisions made?  As years pass and communities and courts continue to confront these questions, as we are asked to reimagine our responses to them in the midst of moral and scientific evolutions, we are not required to defer to our forebears.  We are not “fastened to the obsolete,” as the Supreme Court has emphasized.  Rather, we may call for a reconsideration of our own decisions “as public opinion becomes enlightened by a humane justice.”

3.9 The Devil in the Discretion

*For a brief discussion of the term lynchcraft, see Courting Death:  The Supreme Court and Capital Punishment, pp. 25-26, Carol S. Steiker and Jordan M. Steiker, The Belknap Press of Harvard University Press (Cambridge, MA, 2016).


Nearly fifty years ago …, Furman v. Georgia, 408 U.S. 238 (1972).

As Justice Potter Stewart wrote …, Id. at 309.

Rather, as the Court has written, …, Id. at 313 (White, J., concurring).

The Court observed that it is “of vital importance …”, Gardner v. Florida, 430 U.S. 349, 358 (1977).

Importantly, a reviewing court must amplify …, State of Washington v. Campbell, 103 Wash.2d 1, 25 (1984).

Rather, the constitution’s prohibition . . ., Furman at 242 and passim (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).

We are not “fastened to the obsolete,” …, Furman at 383 (quoting Weems v. U.S., 217 U.S. 349, 356 (1910).