Vol. 13 No. 10 (October 2003)

ARBITRARY AND CAPRICIOUS: THE SUPREME COURT, THE CONSTITUTION, AND THE DEATH PENALTY by Michael A. Foley.  Westport, CT: Praeger Publishers, 2003.  253 pp.  Cloth $49.95.  ISBN: 0-275-97587-8.

Reviewed by James R. Acker, School of Criminal Justice, University at Albany.  acker@albany.edu.

Michael A. Foley, Chair of the Philosophy Department at Marywood University in Scranton, Pennsylvania, plunges headfirst into the arcane world of the Supreme Court’s capital punishment jurisprudence in his volume, ARBITRARY AND CAPRICIOUS: THE SUPREME COURT, THE CONSTITUTION, AND THE DEATH PENALTY.  Following his laborious chronological summary of some 63 death penalty-related cases decided between 1878 and 2002, Foley offers a half-dozen reasons why, in his opinion, the death sentences handed out pursuant to the justices’ constitutional handiwork must inevitably be “arbitrary and capricious.”  He argues that capital punishment should be abandoned in favor of sentencing murderers to life imprisonment with parole eligibility after 25 years.  While ambitious, the book falls short in both its descriptive and exhortative thrusts.  It risks dumfounding and occasionally misleading readers who are new to capital-punishment law, and it offers few fresh insights to those who previously have traversed the constitutional minefield encompassing the death penalty.

The meat of this volume—well over 150 pages of the 208-page text—is devoted to what are primarily one- to two-page summaries of Supreme Court death-penalty cases bookended by WILKERSON v. UTAH (1878) and RING v. ARIZONA (2002).  The case descriptions march resolutely along a timeline rather than being grouped by issue or another logical criterion.  The style is deliberately expository (“I presented the plurality [sic] and dissenting opinions without any evaluative comments.  That was intentional.” (p. 176)), and soon assumes a modestly numbing quality akin to reading the pages of an AMERICAN LAW REPORT annotation.  Curiously, the synopses are written in the present tense, which makes them a bit jarring, and faintly surreal.  To illustrate, the description of POWELL v. ALABAMA (1932) reads: “Justice Sutherland agrees with Alabama’s Chief Justice Anderson that the defendants never had an opportunity to obtain counsel or even call their families. . . . Sutherland, after reviewing lower court records, states that the ‘defendants were not accorded the right to counsel in any substantial sense’” (p.29). 

The stylistic flow is further sabotaged by a few lapses which unfortunately eluded the book’s copy-editor.  For example, the book jacket advertises that the volume reveals the “constitutional quagmire the Court must navigate to avoid violating the fundamental tenant [sic] of equal justice for all.”  A running header repeatedly proclaims that Chapter 4 addresses “The Surpreme [sic] Court since FURMAN;” and one delectably Freudian-like slip suggests that “Decisions that affect peoples’ [sic] lives cannot be made on the basis of whim and caprice without comprising [sic] the integrity of constitutional democracy” (p.59).   Throughout the book, “conviction” appears to be used as a synonym for “sentence,” resulting in regrettable mischaracterizations of case holdings—e.g., regarding MILLS v. MARYLAND (1988): “ Mills appealed his conviction [sic] in part on the fact that the jury could not consider any mitigating circumstances that were not agreed upon unanimously”(p. 136); regarding PENRY v. JOHNSON (2001): “the Supreme Court overturned Penry’s conviction [sic] on the basis that the sentencing instructions given by the judge to the jury were flawed” (p. 145).

The truncated discussions of case holdings necessarily are incomplete, yet occasionally they are misleading, as well.  Some of my concerns regarding the book are rather trivial; others, however, are more serious.  For example, constitutional law scholars will be surprised to read that “Justice Frankfurter argues that the due process of law clause does not apply to the states either, at least in their criminal law” (p.37).  WITHERSPOON v. ILLINOIS (1968), in which the Court vacated the petitioner’s death sentence in light of Illinois’ overly-permissive standard for disqualifying potential jurors based on their “conscientious scruples” against capital punishment, but decisively upheld his murder conviction, is described confusingly as overturning “Witherspoon’s death penalty conviction” (p.44).  It is explained that “someone categorically opposed to the use of the death penalty could, single-handedly, preclude the state of Illinois and the people in that state from exercising their constitutional right [sic] to impose the death penalty” (pp.44-45).  Justice Douglas is described as delivering “[t]he majority opinion” (p.62) in FURMAN v. GEORGIA (1972), a case famous for splintering the justices into writing nine opinions; no other member of the Court joined Douglas’s opinion.  The discussion of FURMAN concludes with the colossal misstatement that “It would take just four years to overturn FURMAN” (p.87).  This landmark ruling and its fundamental principles, of course, remain undisturbed, although by 1976 several states had crafted new death-penalty statutes that were found to be in compliance with FURMAN’s mandate. 

The petitioner in MCCLESKEY v. KEMP (1987) is described as arguing “that he has been denied the Fourteenth Amendment’s equal protection of the laws clause on the basis of the discriminatory differences in sentencing blacks and whites to different punishments for similar crimes” (p.129).  Putting to one side the mystery of how one might be denied the “equal protection of the laws clause,” this characterization does not begin to do justice to a case that surely ranks among the most profoundly important of all post-FURMAN death-penalty decisions.   The research evidence presented in MCCLESKEY suggested that Georgia’s capital-punishment system processed cases differently depending foremost on the race of the murder victim—not the offender—and the legal challenge was predicated on the Eighth Amendment’s cruel and unusual punishments clause as well as on equal protection grounds.  Indeed, the Eighth Amendment aspects of MCCLESKEY are ignored, and although Justice Brennan’s dissent in MCCLESKEY focused on cruel and unusual punishment principles, the author erroneously describes it as being grounded in equal protection concerns (p.130). 

Beyond the factual errors, a number of omissions are also conspicuous.  For example, no mention is made of Justice O’Connor’s crucial concurring opinion in THOMPSON v. OKLAHOMA (1988), in which the Court prohibited the execution of an offender who was only 15 years old when he committed murder.   That opinion foreshadowed O’Connor’s agreement (producing a majority) the following year in STANFORD v. KENTUCKY (1989), that 16-year old murderers can be put to death consistent with the cruel and unusual punishments clause.   And the author’s discussion of HERRERA v. COLLINS (1993) fails to note that the death-sentenced petitioner’s claim of actual innocence was “free standing” (i.e., not attached to the alleged violation of another federal constitutional right) and presented via federal habeas corpus—points that are basic to the Court’s decision not to grant relief.  Moreover, although Foley canvasses more than three score death-penalty cases, he surprisingly neglects to mention some fairly important ones, such as ROBERTS v. LOUISIANA (1977) (invalidating mandatory capital punishment for the murder of a police officer), BAREFOOT v. ESTELLE (1983) (regarding the admissibility of expert testimony on the question of an offender’s future dangerousness), STRICKLAND v. WASHINGTON (1984) (a capital case used to announce standards for assessing ineffective assistance of counsel), LOCKHART v. MCCREE (1986) (rejecting a claim that the death-qualification process compromises a defendant’s jury rights at the guilt phase of a capital trial), and several others.

When the descriptive segment of the book gives way to analysis, Foley cites six reasons in support of his conclusion that the Court’s jurisprudence has not solved—and in some respects has exacerbated—the arbitrariness and capriciousness that have long plagued the capital-punishment process.  He notes, for example, that the process of balancing aggravating and mitigating factors serves neither to distinguish meaningfully between murders nor to cabin sentencing discretion effectively.  He further maintains that the quality of court-appointed counsel and the limited resources at their disposal undermine the fairness of capital trials for indigent defendants; that the death-qualification process produces conviction-prone trial juries; that it is impossible to reconcile the twin constitutional commands of guided discretion and individualization in capital sentencing; that the admissibility of victim impact evidence skews and makes hopelessly subjective capital sentencing decisions; and that unregulated charging discretion exercised by prosecutors adds an additional element of arbitrariness to the already troubling mix.

Recognizing that several of these problems infect not just capital cases, but criminal cases generally, Foley argues that the risks should not be countenanced when life is on the line.   Lest there be any misunderstanding, “there is a clear difference between a death and a nondeath sentence.  The difference, obviously, is death” (p.200).  Indeed.  This entrée leads Foley logically to the conclusion that the capital-punishment enterprise should be abandoned, although his assertion that convicted murderers should receive life sentences with parole eligibility in 25 years is somewhat less intuitive.  He rejects the alternative sentence of life without possibility of parole as being too inflexible and harsh, unyielding to the potential of offenders to reform and, interestingly, also as insufficiently accommodating to the interests of victims’ survivors. 

The murdered victim’s family members and loved ones should play a role in any parole consideration for the murderer.  Might that mean that some murderers will remain in prison because they just happened to murder someone with a family that wants complete retribution (either the death penalty or life imprisonment without parole)?  Yes it does.  But it also keeps open windows of opportunity for mistake or reconciliation.  Reconciliation is a word not often heard in murder cases, yet there is a group of individuals who, in capital cases, seek just that.  They do not want the death penalty.  They do not need retribution, or, if they do, life imprisonment satisfies that need (p.207).

Foley waits until the book’s last page to confide that “the death penalty debate has climaxed.  There is little new to say about it” (p.208).   This revelation may dismay some readers, who understandably might have preferred to receive that opinion much earlier.  It is hard to disagree with Foley’s own assessment as it applies to the descriptive segment of ARBITRARY AND CAPRICIOUS, which represents the great weight of the volume.  One wishes, however, that he might have elaborated further on his proposed sentencing alternative and especially his thesis concerning murder victims’ survivors and the consideration owed them in sentencing and parole decisions.  Herein lies the germ of an idea worth exploring in much greater detail, even if only to spark a much-needed, serious discussion about the diversity of views shared by murder victims’ survivors and how the death penalty matches their needs and wishes, if at all (see, e.g., Bandes 2000; Cushing and Shafer 2002; King 2003; Vandiver 2003).  Unfortunately, this provocative kernel of thought marks the endpoint of the book’s discussion instead of its beginning.

REFERENCES:

Bandes, Susan.  2000.  “When Victims Seek Closure: Forgiveness, Vengeance and the Role of Government.”  27 FORDHAM URBAN LAW JOURNAL 1566-1606.

Cushing, Robert Renny and Susannah Shaffer.  2002.  DIGNITY DENIED: THE EXPERIENCE OF MURDER VICTIMS’ FAMILY MEMBERS WHO OPPOSE THE DEATH PENALTY.  Cambridge, MA: Murder Victims’ Families for Reconciliation.

King, Rachel.  2003.  DON’T KILL IN OUR NAMES: FAMILIES OF MURDER VICTIMS SPEAK OUT AGAINST THE DEATH PENALTY.  New Brunswick, NJ: Rutgers University Press.

Vandiver, Margaret.  2003.  “The Impact of the Death Penalty on the Families of Homicide Victims and of Condemned Prisoners.”  In James R. Acker, Robert M. Bohm and Charles S. Lanier (eds.), AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION (2d ed). Pp. 613-645.  Durham, NC: Carolina Academic Press.

CASE REFERENCES:

BAREFOOT v. ESTELLE, 463 U.S. 880 (1983).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

HERRERA v. COLLINS, 506 U.S. 390 (1993).

LOCKHART v. MCCREE, 476 U.S. 162 (1986).

MCCLESKEY v. KEMP, 481 U.S. 279 (1987).

MILLS v. MARYLAND, 486 U.S. 367 (1988).

PENRY v. JOHNSON, 532 U.S. 782 (2001).  

POWELL v. ALABAMA, 287 U.S. 45 (1932).

RING v. ARIZONA, 536 U.S. 584 (2002).

ROBERTS v. LOUISIANA, 431 U.S. 633 (1977). 

STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984).

THOMPSON v. OKLAHOMA, 487 U.S. 815 (1988).

STANFORD v. KENTUCKY, 492 U.S. 361 (1989).

WILKERSON v. UTAH, 99 U.S. 130 (1878).

WITHERSPOON v. ILLINOIS, 391 U.S. 510 (1968).

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Copyright 2003 by the author, James R. Acker.