States cp — vs Death Penalty —

NC—Solvency—Federal Follow On

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2NC—Solvency—Federal Follow On

The CP causes federal follow-on – established state precedent increases federal momentum

Robert M. Bohm 19, Ph.D., Professor Emeritus of Criminal Justice at the University of Central Florida, 4/15/19, "Routledge Handbook on Capital Punishment", Chapter 37: The Death Penalty’s Demise, with Special Focus on the United States, 1st Edition,
A second legal argument and, for this author, the most likely way the Court could abolish the death penalty is for the Court to rule the death penalty unconstitutional for the same reason it has held as unconstitutional the death penalty for the rape of an adult woman ( Coker v. Georgia, 1977), the rape of a child ( Kennedy v. Louisiana, 2008), kidnapping ( Eberheart v. Georgia, 1977), armed robbery ( Hooks v. Georgia, 1977), participants in felony murders who did not kill or intend to kill ( Enmund v. Florida, 1982), death row inmates who have literally gone crazy on death row ( Ford v. Wainwright, 1986), the intellectually challenged ( Atkins v. Virginia, 2002), and offenders who were younger than 18 years of age when their crimes were committed ( Roper v. Simmons, 2005). In each of these cases, by a count of states and a consideration of momentum, that is, the number of states that had recently banned a specific death penalty application, the Court’s majority concluded that the death penalty was in violation of the Constitution because it was grossly disproportionate and excessive in relation to the crime itself, the offender’s role in the crime, or a specifi c characteristic of the offender based on “the evolving standards of decency that mark the progress of a maturing society.” In short, the Court could declare the death penalty unconstitutional simply by following established legal precedent—by counting states and considering momentum.
While the Court traditionally has been leery about sophisticated statistical evidence, the Court has had no aversion to counting states. For the Court, the number of states that have or have not adopted a particular death penalty practice or, as will be argued here, even the death penalty itself, serves an indication of the will of the people as represented by the legislature, and is the principal way the Court determines the current “standards of decency that mark the progress of a maturing society.” For example, when the Court reinstated the death penalty four years after Furman, in Gregg v. Georgia (1976), it was swayed by the 29 states that had enacted new death penalty statutes designed to remedy the problem the Court identifi ed with pre- Furman death penalty statutes: unfettered jury discretion (number of states calculated from data in Death Penalty Information Center, 2017c).
Other, less important indicators of “the evolving standards of decency” are the number of death sentences imposed by juries, which, as noted previously, has been declining consistently and dramatically; international law, which, for a majority of countries, prohibits the death penalty; public opinion polls, which show a slow, long-term decline in death penalty support and increase in death penalty opposition; offi cial positions of professional organizations and interest groups, many of which have taken positions against the death penalty; and the justices’ own judgment (see, for example, Coker v. Georgia, 1977, p. 597; Enmund v. Florida, 1982, p. 801; Atkins v. Virginia, 2002, pp. 312, 316 n. 21, and 326). The justices’ own judgment is brought to bear by asking “whether there is reason to disagree with the judgment reached by the citizenry and its legislators” ( Coker v. Georgia, 1977, p. 597). Following are two examples of this approach.
In Atkins v. Virginia (2002), the Court decided that it was unconstitutional to execute the intellectually challenged (“mentally retarded”), in large part because, by then, 18 states had prohibited their execution. In Atkins, Justice Stevens, citing Chief Justice Warren in Trop v. Dulles and Justice Brennan in Furman, reiterated, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man . . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (pp. 311–312). He added, “We have pinpointed that the ‘clearest and most reliable objective evidence of contemporary values is legislation enacted by the country’s legislatures’” (p. 312). He noted, “ It is not so much the number of these States that is signifi cant, but the consistency of the direction of change” (i.e., momentum) (p. 315, emphasis added). “Given the wellknown fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime,” Stevens continued,
the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. (pp. 315–316)
He further stated, “The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition” (p. 316). “Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon” (p. 316), he observed. “Some States, for example New Hampshire and New Jersey,” Stevens elaborated, “continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States” (p. 316). “And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded,” wrote Stevens, “only fi ve have executed offenders possessing a known IQ less than 70 since we decided Penry” (p. 316) [referring to Penry v. Lynaugh, 1989, in which the Court upheld the execution of the mentally retarded]. “The practice, therefore, has become truly unusual,” concluded Stevens, “and it is fair to say that a national consensus has developed against it” (p. 316).
In short, for Justice Stevens and the Court’s majority in Atkins, the number of states that have prohibited a particular punishment and, more importantly, the consistency of the direction of that change (i.e., momentum) determines, at least in part, whether a punishment is cruel and unusual in violation of the Eighth Amendment. Other important considerations are whether any states legislatively reinstated the punishment following abolition, and whether states actually employ the punishment that is legislatively prescribed.
The Court’s majority used the same argument it used in Atkins to determine whether the execution of juvenile offenders violated the Eighth Amendment. Writing for the majority, Justice Kennedy, citing Trop v. Dulles , framed his argument in familiar terms: “[W]e have established the propriety and affi rmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual” (pp. 560–561).
In Roper v. Simmons (2005), the Court ruled that it was unconstitutional to execute offenders who were younger than the age of 18 at the time their crimes were committed, again, in large part, because, by then, 18 death penalty states prohibited the death penalty for juveniles ( joining the 12 states that had abolished the death penalty altogether), and the 20 death penalty states that had not prohibited it infrequently imposed it (pp. 564–565). The Court did note that “the rate of change in reducing the incidence of the juvenile death penalty, or in taking specifi c steps to abolish it [i.e., momentum] [had] been slower [than in Atkins],” but they were still signifi cant (p. 565). The Court was impressed with the “consistency of direction of change” and the fact that “no State that previously prohibited capital punishment for juveniles [had] reinstated it” (p. 566). Justice Kennedy emphasized the salient point:
As in Atkins, the objective indicia of consensus in this case—the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal.” (p. 567, citation omitted)
In sum, by using the same logic and arguments used in a series of death penalty cases, including most notably Atkins v. Virginia (2002) and Roper v. Simmons (2005), a persuasive legal argument is available for an assault on the death penalty’s constitutionality; specifi cally, that the death penalty is unacceptable to contemporary society, as measured by its use. By the end of 2016, 19 states and the District of Columbia had abolished their death penalties, and at least another dozen death penalty states, the U.S. government, and the U.S. military rarely execute (Death Penalty Information Center, 2017a). One state, Nebraska, had abolished its death penalty in 2015, but reinstated it in 2016. Based on the same reasoning the Court used in its Atkins’ and Simmons’ decisions, the Court’s threshold to abolish the death penalty for the intellectually challenged (“mentally retarded”) and juveniles already has been exceeded, even with Nebraska’s reinstatement. And even if the Court reasoned that 19 states were not enough to abolish the death penalty, the Court might be hard pressed to retain the death penalty if a majority of states abolished it. Currently, only seven more states are needed to reach that threshold. Nebraska’s reinstatement obviously puts a damper on the momentum argument.

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