COMMENTARY: The Supreme Court and the Future of the U.S. Death Penalty
Benjamin Wittes, editorial page writer for The Washington Post, discusses the death penalty in light of recent U.S. Supreme Court decisions in the October 2005 issue of The Atlantic Monthly. He states that the Court has "shifted gears on capital punishment" and predicts that this trend will continue through a series of decisions limiting the death penalty and addressing systemic flaws that continue to surface. Wittes writes:
The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row.
But lately the Court has struck a very different tone.
The attitudinal shift on the part of Kennedy and O'Connor - two of the less rigidly principled justices in recent years - is hardly a surprise. As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person's guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countrywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these trends. It would actually be surprising if no Supreme Court justice had rethought his or her approach in light of what we now know about capital punishment.
Despite O'Connor's retirement, the Court's new approach seems likely to impose significant contraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing the individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs.
("The Executioner's Swan Song?", Atlantic Monthly, October 2005). See Supreme Court.