Reading the "tea leaves " provides few clues on how Roberts might rule on the death penalty if he 's confirmed. In two years as a federal judge, he didn 't decide any death penalty case. In 1993, while serving in the Reagan White House, he wrote a memo suggesting that the Supreme Court could reduce its work load by lessening its scrutiny of death penalty appeals. On the other hand, Roberts 's wife reportedly belongs to an anti-death penalty advocacy group, and he himself worked on a death penalty appeal while in private practice.
Roberts seeks to join a court which recently has outlawed the death penalty against the most vulnerable defendants. In March 2005, by 5-4 vote, the Supreme Court in Roper v. Simmons held that the Eighth and Fourteenth Amendments prohibit executions of juveniles who committed their crime when under age 18.
In its decision, the court noted that today some 30 states prohibit juvenile executions, and in the past ten years, only three states had actually carried out juvenile executions. The court also noted that the U.S. was the only country in the world to "officially sanction " juvenile executions. The court found that "evolving standards of decency, " along with the vulnerability and immaturity of juveniles, make these executions unconstitutional as "cruel and unusual punishment. "
Similarly, in 2002, the Supreme Court in Atkins v. Virginia ruled that the execution of mentally retarded persons violates the Eighth Amendment. Significantly, both the Roper and Atkins decisions overruled contrary decisions that the Supreme Court handed down not long ago in 1989.
Polling data suggests that the American public has grown queasier about the death penalty. According to Gallup, the high mark for death penalty support was 1994 when 80 percent favored it for murderers (compared to a low of 42 percent in 1966). The most recent Gallup Poll found that a 74 percent death penalty approval dropped to just 56 percent when those questioned were given the alternative sentence of "life without parole. " A new CBS News Poll found those questioned evenly split at 39 percent between the death penalty and life without parole.
Various 2005 localized polls also find slippage in support for the death penalty. In Alabama, less than half of those surveyed believed the state 's death penalty is fairly administered, while 57 percent favored a temporary halt to executions while fairness and reliability issues are studied. In Houston, 64 percent favored life without parole over the death penalty. A New Jersey poll found that 47 percent favored life without parole, and only 30 percent favored the death penalty if those serving life without parole made restitution to the family of the murder victim. Support for life without parole over the death penalty is at 63 percent in Maryland. And, by a margin of 46-42 percent, New Yorkers oppose reinstatement of that state 's death penalty, while 56 percent favor life without parole over the death penalty.
However, in surveying state laws, the Supreme Court is unlikely to find an evolution in public attitudes against the adult death penalty so as to render the penalty unconstitutional as "cruel and unusual punishment. " Despite increasing public opposition, only 12 states and the District of Columbia have no death penalty. Four other states with the death penalty have not executed anyone in more than fifty years, and in two of those states, courts have invalidated the particular death penalty statute.
Since 1976, when a ten-year national moratorium ended with Gary Gilmore 's firing-squad execution in Utah, 979 persons have been executed in the United States, more than 33 percent of those (347) in Texas and about 85 percent (873) in southern states. From 1995 through 2005, the numbers have ranged from 45 in 1996 to 98 in 1999. So far in 2005, 35 persons have been executed. (The 979 figure from 1976 to 2005 actually is relatively low compared to the 3,859 inmates who were executed between 1930 and 1967.)
In striking down the juvenile death penalty, the Supreme Court took into consideration the practices of other countries. When the same is done for the adult death penalty, many American cringe. According to the Death Penalty Information Center, 120 countries, including all European countries, have abolished the death penalty for all crimes. In 2004, Bhutan, Samoa, Senegal, and Turkey joined the growing list. Twelve other countries sanction the death penalty only in severely restricted circumstances, and in 24 countries, the death penalty option has not been exercised in over ten years. Amnesty International figures that in 2004 the United States, with 59 executions, trailed only China (3,400), Iran (159), and Vietnam (64).
There are other grounds on which the Supreme Court could review the constitutionally of death penalty statutes. In the 1972 Furman v. Georgia case, the court held that application of the death penalty could not be "arbitrary. " Yet, figures today dramatically show that persons who commit murders are much more likely to be put to death if their crime was committed the south. Studies show that, even within a state, prosecutors in certain counties are much more likely than others to seek the death penalty.
Additionally, according to the Death Penalty Information Center, only two percent of murderers receive the death penalty, and case reviews show that the death penalty is not necessarily imposed for the most egregious murders.
Race also plays a role. Statistics from the Death Center Information Center show that 80 percent of those executed killed white victims, while only 50 percent of murder victims are white. Forty-two percent of the current 3,415 death row inmates are black.
Studies also suggest that many times death penalty defendants are represented by inadequate court-appointed legal counsel. This data led Justice Sandra Day O 'Connor in 2001 to claim that the death penalty "is being unfairly administered, " and to call for minimum qualifications and better pay for attorneys handling death penalty cases.
Moreover, in his speech last week, Justice Stevens cited "erroneous convictions " as a reason for halting executions. The Death Information Center has documented 119 cases since 1973 where convictions of death row inmates have been reversed. Stevens also expressed concern over the fairness of having elected judges preside over death penalty trials, and over the impact on juries of victim-impact statements.
Of course, Judge Roberts at his confirmation hearing will not disclose how he will vote in death penalty cases. Nevertheless, these cases are among the most important cases decided by the Supreme Court. The confirmation hearings provide senators with an extremely valuable opportunity for shining the national spotlight on the on-going death penalty debate.