The Wrong Side of History

William Rehnquist lived to see much of his pro-death penalty work undermined.

| Wed Sep. 7, 2005 2:00 AM EDT

Conservative politicians and pundits in Washington have spent much of the past three days celebrating the late Chief Justice William Rehnquist’s record on federalism, issues of church and state, and constitutional rights. Many have failed, however, to accurately explore one issue on which the longtime jurist managed to lose his grip: the debate over the American death penalty.

When President Richard Nixon nominated Rehnquist, then an assistant attorney general in the Justice Department, to the bench in 1971, the death penalty was quickly becoming a relic of bygone days. No state had carried out an execution in more than four years, and the case of Furman v. Georgia, in which the Court would strike down all operating death penalty statutes throughout the country -- over the objections of Rehnquist and three other justices -- was already on the horizon.

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Before long, however, Rehnquist and the nation’s capital punishment proponents struck back in full force. In 1976, with re-written statutes in Georgia and several other states, the court, with Rehnquist in the majority, reinstated the death penalty in Gregg v. Georgia. Within a year, the state of Utah executed Gary Gilmore by firing squad, and by 1985, 50 people had already been executed in what has come to be known as the “modern era” of capital punishment.

In the aftermath of Gregg, Rehnquist blasted the “endlessly drawn-out legal proceedings” involved in the capital punishment system—a system, remember, in which more than 120 death row inmates have been exonerated on account of actual innocence since the 1970s—and urged a faster, more streamlined means of handling death penalty appeals. Those opinions, as well as his opinions of the late-1980s, which ignored evidence of blatant racial discrimination with regard to capital defendants and greased the machinery of death for the years to come, eventually exacted their toll: the decade of the 1990s brought with it an explosion of executions nationwide, with a peak of 98 in 1999.

But in his final years on the court, Rehnquist began to lose his command of the death penalty issue. In 2002, he dissented in Atkins v. Virginia, which banned the execution of people with mental retardation; and earlier this year he joined Justice Antonin Scalia’s dissent in the landmark Roper v. Simmons case, which banned the execution of juvenile offenders. Those decisions, combined with a number of others that have struck at the heart of the American death penalty since the turn of the century, have launched the capital punishment debate onto a new course—quite possibly in the direction of total abolition.

Meanwhile, trends outside the court have followed suit. The number of death sentences imposed nationwide has dropped 50 percent over the past five years, and current public opinion polls show far less support for capital punishment than in the 1990s. At the state level, there's been a similar shift. Just this April, New York essentially gave up on its death penalty system, and several other states, including Connecticut and New Mexico, have begun to reconsider their statutes.

Following the court’s reasoning in Atkins and Simmons—that certain executions violate the nation’s “evolving standards of decency,” as determined in large part by the actions of state legislatures, and thus violate the Eighth Amendment’s prohibition on cruel and unusual punishment—these actions at the state level could well determine the fate of capital punishment itself in the years to come.

Of course, Bush nominees to the Supreme Court, starting with the former Rehnquist law clerk John Roberts, are not likely to force an end to capital punishment in the United States if and when they join the bench. But as recent history demonstrates, some conservative jurists, such as Justice Anthony Kennedy, who wrote the opinion of the court in Simmons, have not hesitated to part with the notion of blind support for the death penalty that Rehnquist so firmly held.

The late chief justice, make no mistake, seriously damaged the status of human rights in the United States through his opinions and decisions on capital punishment over the past four decades. Fortunately, however, he failed, despite his best efforts, to solidify the death penalty as a settled hallmark of the American justice system. And with support for state-sanctioned killing rapidly eroding across the nation, it seems increasingly likely that Rehnquist will eventually occupy the same territory in the death penalty debate that he will forever hold on the issue of school segregation: the wrong side of history.