Judge William Fletcher of the Ninth Circuit argues against death penalty in Madison Lecture

In the 45th James Madison Lecture on October 15, Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit turned a spotlight on the efficacy of the American death penalty system.

Trevor Morrison, Norman Dorsen, Harry Edwards, and William FletcherThe deep history of prominent judges who have given the Madison Lecture was evident in Fletcher’s connections to past lecturers. This year’s event was introduced by Dean Trevor Morrison, who had clerked for Fletcher’s mother, the late Judge Betty Binns Fletcher. The elder Fletcher had also sat on the Ninth Circuit bench and had delivered a Madison Lecture on capital punishment in 1994. Her son, in turn, had clerked for Supreme Court Justice William Brennan Jr., who was the Madison Lecturer twice, in 1961 and in 1986.

If his stance wasn’t sufficiently clear from the title of his talk, “Our Broken Death Penalty,” Fletcher’s introductory comment on it elucidated his take on capital punishment in the U.S. “That suggests that it might have been unbroken,” he said of the title. “I think it’s always been broken.”

Fletcher commenced his lecture with a description of the 1972 Supreme Court case Furman v. Georgia (argued on the petitioner’s side by University Professor Anthony Amsterdam), which yielded a contentious 5-4 decision with five separate concurrences and two different dissents. The result was a four-year moratorium on the death penalty. The constitutionality of capital punishment was reaffirmed in Gregg v. Georgia (1976), a 7-2 ruling that entailed a majority opinion, three concurrences, and two dissents, illustrating again the inherent difficulties of the issue.

In the post-Gregg era, Fletcher noted, the U.S., Japan, and China are alone among industrialized nations in retaining the death penalty. Every signatory of the European Convention on Human Rights, he added, has renounced it. Since Gregg, the peak year for American executions has been 1999, with 98 death sentences carried out; the annual figures have decreased since. Gallup polls indicate that the low point in modern public support of the death penalty occurred in 1966, with 42 percent, and approval peaked in 1994, at 80 percent. In recent years support has rested somewhat below 65 percent.

Fletcher also cited figures indicating that capital punishment is much more expensive than life imprisonment, and that the death-row process is exceedingly slow. He argued that it was unclear whether the death penalty deters crime.

The judge also said there were significant problems with all phases of the capital punishment system, encompassing initial police investigations, prosecutors’ decisions, the judicial process, and executive clemency. He described the police investigation of a California case, deeming it a probable example of framing by the authorities; gave examples of prosecutorial misconduct, such as withholding evidence and using compromised testimony; pointed to judicial elections as problematic when it came to achieving justice in capital trials; and suggested that clemency pleas had become “a useless exercise” as governors hesitated to grant clemency for fear of political fallout. The passage of the federal Antiterrorism and Effective Death Penalty Act of 1996, he said, had hamstrung capital defense lawyers by severely limiting the availability of habeas corpus.

Fletcher pointed as well to the death penalty’s “strikingly uneven impact on racial minorities, particularly African Americans.” He then posed a hypothetical question: “What if the death penalty could be administered fairly, even-handedly, predictably, sorting out reliably and uniformly those who deserve to die from those who do not?”

That was an impossible task, he answered, saying the system’s problems were too deeply rooted. Fletcher alluded to Justice Thurgood Marshall’s concurrence in Furman, in which Marshall wrote, “Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.” Justices Lewis Powell Jr., Harry Blackmun, and John Paul Stevens, all of whom had supported the death penalty in either Furman or Gregg, later changed their minds and abandoned the notion that the death penalty was constitutional.

“I believe that if Justice Marshall’s average citizen knew what Justices Powell, Blackmun, and Stevens came to know, and what I think I know, only a minority of our population would favor the death penalty,” said Fletcher. “But it is unrealistic to hope that the average citizen should come easily and quickly to this level of knowledge…. They have neither the time nor the incentive to learn about the death penalty as it is actually administered. And yet, I think that sooner or later, probably not in my lifetime but perhaps in some of yours, we will abolish the death penalty in this country. Perhaps we as a country will eventually have seen enough.”

Watch the full video of the event (1 hr, 5 min):

Posted on October 21, 2013