{"id":10653,"date":"2017-10-25T17:48:48","date_gmt":"2017-10-25T21:48:48","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10653"},"modified":"2017-11-06T15:26:03","modified_gmt":"2017-11-06T20:26:03","slug":"supreme-court-death-penalty-jurisprudence-and-an-ardent-call-for-abolition","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-court-death-penalty-jurisprudence-and-an-ardent-call-for-abolition\/","title":{"rendered":"Supreme Court Death Penalty Jurisprudence and an Ardent Call for Abolition"},"content":{"rendered":"

Death has been knocking on the Supreme Court\u2019s door for years. But like a homeowner dismissing away an unsolicited salesman, the Court has turned off the lights and refused to answer. Last August, Abel Daniel Hidalgo came knocking when he filed a petition for a writ of certiorari<\/a> following an Arizona jury\u2019s decision to sentence him to death for killing someone in exchange for $1,000 from a gang member, as well as an eyewitness. Hidalgo\u2019s petition challenged the constitutionality of (1) Arizona\u2019s capital punishment scheme and (2) the death penalty itself under the Eighth Amendment\u2019s prohibition against cruel and unusual punishment. On October 16, Arizona filed its respondent brief in opposition\u00a0<\/a>and now, the question remains: will Hidalgo\u2019s appeal induce the Court to answer?<\/p>\n

Notable Death Penalty Decisions<\/strong><\/p>\n

The Court has not addressed the constitutionality of the death penalty itself since it ended Furman v. Georgia<\/em>\u2019s de facto capital punishment moratorium in Gregg v. Georgia<\/em>. In Furman<\/em>, the Court held, in a per curiam decision with no plurality, that all death penalty statutes violated the Eighth Amendment.[1]<\/a> Among the fractured reasoning was a concern that current death penalty statutes gave juries standardless discretion to decide who lived and who died, resulting in an impermissibly arbitrary and discriminatory system. [2]<\/a> This was the first and last time the Court has held the death penalty unconstitutional under the Eighth Amendment.<\/p>\n

Just four years later in Gregg<\/em>, the high court approved a panoply of revised state laws which included aggravating factors that narrowed the class of death eligible persons, because they sufficiently reigned in unconstitutional jury discretion, minimizing the risk of wholly arbitrary and capricious application feared in Furman<\/em>.[3]<\/a> The Court has since clarified that Gregg <\/em>requires \u201can aggravating circumstance must genuinely narrow<\/em> the class of persons [death] eligible.\u201d[4]<\/a> But it has never addressed how much \u201cnarrowing\u201d the constitution actually demands. In regards to the constitutionality of the death penalty itself, the Gregg <\/em>court acknowledged that it might someday revisit the issue in light of \u201cmore convincing evidence.\u201d[5]<\/a><\/p>\n

Hidalgo argues<\/a> \u201cthe evidence is in.\u201d<\/p>\n

Many abolitionists believed that the Court\u2019s fervently debated decision in Glossip v. Gross\u2013\u2013<\/em>ultimately holding constitutional the use of midazolam as the initial drug in executions[6]<\/a>\u2013\u2013<\/em>indicated it might soon take up the question of whether the death penalty itself violates the Eighth Amendment.<\/p>\n

But such sanguinity was short lived. The Court denied certiorari for sixty-one death penalty cases last term<\/a>\u00a0and although it heard four,[7]<\/a> none addressed the hotly contested question of whether the death penalty is unconstitutional per se. For example, in Reed v. Lousiana<\/em>, the Court denied certiorari and rejected Reed\u2019s argument<\/a> that because capital punishment had only been imposed on \u201cthose unlucky few prosecuted under anachronistic circumstances,\u201d it is time to assess whether \u201cevolving standards of decency\u201d have established that the imposition of death \u201cconstitutes cruel and unusual punishment.\u201d<\/p>\n

Notably, Justice Breyer\u2019s numerous dissents throughout the Court\u2019s death penalty decisions have consistently implored the Court to reconsider the death penalty\u2019s constitutionality.[8]<\/a> While many lawyers have viewed Justice Breyer\u2019s opinions as an open invitation to bring a per se capital punishment challenge to the Court, each has failed to convince the Court it was the right time for the debate. But Hidalgo\u2019s petition, filed by Neal Katyal<\/a>\u2013\u2013former Obama administration solicitor general\u2013\u2013observes that his case fits the bill. Hidalgo contends<\/a> that because \u00ad\u00ad\u00adhis case comes to the Court on direct review, the constitutional issues are well-preserved, and because the \u201cbreadth\u201d of Arizona\u2019s aggravating factors \u201cmake it an exemplar of arbitrariness,\u201d it is the \u201cideal vehicle\u201d for a second and final nationwide abolition.<\/p>\n

While Hidalgo\u2019s reasoning is appealing and Katyal is an impressive advocate, the Court previously refused to hear a similar appeal<\/a> last term;\u00a0and Hidalgo still needs four votes for the Court to accept his case for consideration. Unfortunately, it is unlikely that the Court\u2019s liberal Justices will garner the votes necessary to both grant Hidalgo\u2019s petition and subsequently hold the death penalty unconstitutional.<\/p>\n

Hidalgo\u2019s Challenge to Arizona\u2019s Death Penalty Scheme<\/strong><\/p>\n

Through Arizona\u2019s capital punishment scheme\u2013\u2013which requires a defendant meet only 1 of 14 broad aggravating factors<\/a>\u00ad\u00ad to be death eligible\u2013\u201399% of the state’s first-degree murder defendants qualify for death. Hidalgo argues that this scheme does not achieve the standard Gregg <\/em>demands\u2013\u2013states must design \u201caggravating circumstances\u201d that \u201cminimize the risk of wholly arbitrary and capricious action\u201d so as to \u201cnarrow\u201d the death eligible.[9]<\/a>\u00a0Instead,\u00a0Arizona\u2019s scheme unconstitutionally transforms every murderer into the \u201cworst of the worst.\u201d[10]<\/a><\/p>\n

This failure to narrow argument stems from the corollary that because an aggravating factor can fail to sufficiently narrow by itself\u00a0[11]<\/a>, so too, can a sentencing scheme that has too many. But in a recent UC Davis Law Review article<\/a>, Chad Flanders\u2013\u2013Professor of Law at Saint Louis University\u2013\u2013attacked Hidalgo\u2019s argument, noting that Gregg <\/em>requires \u201cconceptual but not empirical narrowing.\u201d In other words, a state\u2019s statute must limit the death eligible only in principle<\/em> rather than limit the actual<\/em> number<\/em> of those in the class. He reasons that this \u201cconceptual\u201d reading of the narrowing requirement is \u201cbetter\u201d than an \u201cempirical\u201d reading, but the Court\u2019s capital punishment jurisprudence has never addressed this idea.<\/p>\n

Thus, Hidalgo\u2019s petition raises a persuasive point: Arizona\u2019s scheme results in almost every Arizona murderer being death eligible, giving Gregg\u2019s <\/em>narrowing requirement \u201cmore bark than bite.<\/a>\u201d But while Hidalgo\u2019s claim seems grounded in the Court\u2019s decisions, the Court has yet to directly address a challenge to a broad state death penalty scheme like Arizona\u2019s and has, in fact, denied other petitions<\/a> for certiorari challenging similar statutes.<\/p>\n

Hidalgo\u2019s Death Penalty Per Se Challenge<\/strong><\/p>\n

Next, Hidalgo argues the death penalty is unconstitutional per se because no possible capital punishment scheme can be designed in such a way to prevent the arbitrary and capricious imposition of death that Furman <\/em>requires. Hidalgo\u2019s petition expounds on three reasons<\/a> to abolish capital punishment, as noted by Justice Breyer\u2019s dissent in Glossip<\/em>: (1) the death penalty is fallible, (2) it is still applied arbitrarily, and (3) a consensus exists to support abolition.<\/p>\n

The evidence supporting Hidalgo\u2019s first point\u2013\u2013that the sheer number of exonerations prove the death penalty is seriously unreliable\u2013\u2013is well-established. Since 1973, 159 prisoners on death row<\/a> have been exonerated, with the most recent in May of this year.\u00a0And while the number of defendants who were similarly innocent but have already been executed is unclear, one widely accepted study<\/a> puts the figure at \u201cno less than four percent.\u201d These alarming numbers derive from many flaws in the administration of death, including: public pressure to obtain a conviction, distortions in the jury selection process, and faulty forensic testimony. Recently, John Oliver<\/a>\u2013\u2013host of Last Week Tonight on HBO\u2013\u2013brought the dire implications of defective forensic evidence to light, explaining that evidence once considered \u201cairtight\u201d may now be viewed as \u201cjunk science.\u201d Among the issues discussed, Oliver established that seemingly infallible evidence\u2013\u2013such as fingerprints and DNA\u2013\u2013can be wrong; and that some judges even continue to admit<\/a> bite mark evidence after a leading bite mark expert witness denounced its reliability.\u00a0Despite this overwhelming evidence, the Supreme Court has never meaningfully addressed the issue in its death penalty decisions.<\/p>\n

Second, Hidalgo echoes<\/a> Justice Stewart\u2019s concurrence in Furman<\/em>, arguing that because states continue to execute a \u201ccapriciously selected random handful\u201d of defendants, the death penalty is \u201ccruel and unusual in the same way being struck by lightning is.\u201d It is true that, forty-five years after Furman<\/em>, the death penalty is still arbitrarily imposed on \u201cdeath-eligible\u201d defendants without meaningfully distinguishing between offenders. Instead, juries are improperly influenced by factors relating to race, gender, geography, disparities in the exercise of prosecutorial discretion, and insufficient resources to represent capitally charged inmates.[12]<\/a><\/p>\n

Third, Hidalgo argues that death is \u201ccruel and unusual\u201d as defined by \u201cevolving standards of decency that mark the progress of a maturing society.\u201d[13]<\/a> Indeed, with support for the death penalty at its lowest<\/a> in 40 years, and \u201c30 States<\/a> hav[ing] either formally abolished the death penalty or hav[ing] not conducted an execution in more than eight years,\u201d there seems to be a decline in the United States\u2019 previous accord for the practice. But it still may not be the right time to address a per se death penalty challenge because the overall numbers are not in abolitionists\u2019 favor. In fact, just last November, California\u2019s initiative to abolish the death penalty was voted down<\/a> while its measure to sped up the death penalty process was passed, and Oklahoma voters overwhelmingly supported<\/a> a referendum to prevent abolition in their state\u2013\u2013showing it is not so clear the country\u2019s standards have evolved beyond state-sanctioned killings.<\/p>\n

Another compelling argument that the death penalty is \u201ccruel\u201d is that rather than deterring crime<\/a>,\u00a0it merely fosters revenge. Capital punishment proponents argue that the death penalty provides relief to the moral outrage that follows a brutal murder case. But our society has long opposed such pure retributivism. We do not torture tortures, nor rape rapists. But we continue allowing prisoners to await death on death row for an average of thirteen years<\/a>. This lengthy duration further destabilizes any argument that the death penalty serves any retributive or deterrent purpose. The death penalty\u2019s cruel nature is even more inexorable because the United States has botched 3% of its executions\u2013\u2013administered<\/a> through injection<\/a>, electrocution, gas, firing squad and hanging.<\/p>\n

The death penalty is also \u201cunusual\u201d because 140 countries<\/a> worldwide are abolitionist in law or in practice. The United States should aim to be associated with those countries that have decided the world is better without the death penalty rather than being among<\/a> China, Iran, North Korea, and Yemen as carrying out the most executions last year. Furthermore, as University of Baltimore law professor John Bessler argues<\/a>, because mock executions are considered \u201cpsychological torture\u201d in international law, actual execution should qualify as similarly cruel and unusual.<\/p>\n

The Death Penalty and Race<\/strong><\/p>\n

In his petition, Hidalgo maintains that the Court can no longer turn a blind eye to the robust evidence confirming the death penalty\u2019s discriminatory imposition.<\/p>\n

The Court first expansively examined the issue of race in the death penalty context in McCleskey v. Kemp<\/em> when\u2013\u2013despite its holding in Eddings v. Oklahoma <\/em>that death must be imposed \u201cfairly, and with reasonable consistency, or not at all\u201d[14]<\/a>\u2013\u2013it rejected objective evidence substantiating the penalty\u2019s unfair applicable from the eminent Baldus <\/em>study.[15]<\/a> The study found that \u201cblacks who kill whites are sentenced to death at nearly 22x the rate of blacks who kill blacks and 7x the rate of whites who kill blacks,\u201d and \u201cafter taking into account some 230 nonracial factors that might legitimately influence a sentence,\u201d race was the most compelling factor in the imposition of death.[16]<\/a> The McCleskey <\/em>Court accepted the\u00a0racial disparities as true but rejected them as a reason to abolish the death penalty because doing so would open the floodgates to future lawsuits challenging the constitutionality of various punishments for other crimes. In dissent, Justice Brennan acutely blamed the Court’s holding on a “fear of too much justice.” [17]<\/a><\/p>\n

The effect of race in capital sentencing was revisited just last term in Buck v Davis<\/em>, where the prosecutor called an expert witness who testified that because the defendant was black, he was more likely to be a future danger to society.[18]<\/a> Writing for the majority, Chief Justice Roberts interestingly emphasized that imposing a criminal sanction based on race \u201cpoisons public confidence\u201d in the judicial process. [19]<\/a> The Court held that the possibility of Buck being sentenced to death \u201cin part because of his race . . . is a disturbing departure from a basic premise of our criminal justice system.\u201d[20]<\/a> The Chief Justice noted, \u201c[o]ur law punishes people for what they do, not who they are.\u201d[21]<\/a> While the Court\u2019s decision in Buck<\/em> only answered the narrow question of whether the federal appeals court should have allowed the defendant to appeal a challenge to his death sentence, Chief Justice Roberts\u2019 reference to race begs the question of whether the Court may, in the future, be willing to examine the role race plays in a jury\u2019s decision to impose death. Evidently, Justice Breyer\u2019s assertion endures: \u201cindividuals who are executed are not the \u2018worst of the worst,\u2019 but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.\u201d[22]<\/a><\/p>\n

It follows, Hidalgo argues<\/a>, that the death penalty must be abolished because the improper influence on jurors of irrelevant factors, like race, are born from features of our Constitution that \u201cthe Court itself has increasingly recognized are both problematic and incapable of repair.\u201d<\/p>\n

Under Gregg<\/em>, the Constitution demands that States provide guidance<\/em> to juries to prevent standardless imposition of the death penalty that would violate the Eighth and Fourteenth Amendments.[23]<\/a> But under Woodson v. North Carolina<\/em>, once a defendant is death eligible, States must give juries complete discretion<\/em> to decline to impose death.[24]<\/a> As Hidalgo argues<\/a>, permitting juries to exercise \u201cuntrammeled discretion to grant mercy to whomever they wish,\u201d \u201creintroduces into the death penalty system the very sort of arbitrariness that [Gregg\u2019s<\/em>] narrowing requirement is intended to remove.\u201d In other words, this discretion allows a juror\u2019s prejudice to dictate which defendants are more worthy of life<\/p>\n

After the atrocities advanced by Nazi dictatorship, Germany decided<\/a> the State should never have the power to kill. Comparably, our extensive history of state supported lynchings and long-term racial discrimination coupled with giving the government the power to kill\u00ad\u00ad\u00ad\u00ad\u2013\u2013at a rate disproportionately higher<\/a> for black defendants\u2013\u2013merits similar condemnation, not countenance.<\/p>\n

Even if Hidalgo convinces the Court to open its door, will he have the votes for abolition?<\/strong><\/p>\n

Following Justice Scalia\u2019s death, the Court seemed evenly split when it came to capital punishment. Justice Breyer and Justice Ginsburg believe it is unconstitutional. Justice Ginsberg has stated<\/a> that if she \u201cwere a queen, there would be no death penalty.\u201d\u00a0But rather than declaring\u00ad\u00ad the death penalty unconstitutional in every capital case\u2013\u2013as the late Justices Marshall and Brennan\u00ad\u00ad\u2013\u2013she has decided to maintain a voice in the debate.<\/p>\n

Justice Sotomayor and Justice Kagan have not ruled the death penalty unconstitutional per se, but they do believe it is inflicted in an unconstitutional manner. While Justice Sotomayor has been reluctant to speak out against the death penalty during her career, as director for the Puerto Rican Legal Defense and Education Fund in 1981, she signed an internal memo urging the organization to oppose the death penalty\u00ad\u00ad\u2013\u2013stating that<\/a> capital punishment was \u201cassociated with evident racism in our society.\u201d And although she has not challenged the constitutionality of the death penalty while on the bench, she has become an outspoken critic of the methods of execution, calling lethal injection \u201cour most cruel experiment yet\u201d in a recent dissent to a denial of certiorari.[25]<\/a> Justice Kagan recently called the district court\u2019s reasoning in support of the lethal injection drug in Glossip v. Gross<\/em> \u201cgobbledygook<\/a>\u201d and although she has affirmed her support for the death penalty based on its \u201cestablished law<\/a>,\u201d she\u2013\u2013like all the Justices\u2013\u2013holds the power to help change the law as it exists and\u2013\u2013if joined by four others\u2013\u2013would likely exercise it.<\/p>\n

On the other hand, the conservative wing of the Court\u2013\u2013including Chief Justice Roberts, Justice Thomas, and Justice Alito\u2013\u2013has consistently upheld the constitutionality of the death penalty and Justice Gorsuch seems likely to be a reliable fifth vote. While Justice Gorsuch has argued against euthanasia\u00a0 by stating<\/a> that \u201c[a]ll human beings are intrinsically valuable,\u201d \u201clife itself is a basic good,\u201d and \u201cthe intentional taking of human life by private persons is always wrong,\u201d Justice Gorsuch relied on the phrase private persons<\/em> during his Senate confirmation hearings to reconcile these views with his favoring of the death penalty. And in one of his first Supreme Court cases, Justice Gorsuch denied<\/a> a stay request from Arkansas death-row inmates facing execution\u2013\u2013indicating he is likely a staunch vote in favor of death.<\/p>\n

Finally, Justice Kennedy has held relatively moderate views in the death penalty debate, placing him somewhere in the middle. In Kennedy v. Lousiana<\/em>, he seemed to signal his willingness to reexamine the use of the death penalty because \u201cin most cases,\u201d justice is better served by \u201cconfining [a defendant] and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.\u201d[26]<\/a> He has also considered<\/a> whether the length<\/em> of the death process is \u201cconsistent with sound administration of the justice system” and recently dedicated four pages of an concurring opinion<\/a> to questioning solitary confinement<\/em> on death row\u00a0in cases in which those topics were not at issue.<\/p>\n

Thus, while it is not entirely clear the Court has the votes to abolish the death penalty, Hidalgo\u2019s enumerated reasons for abolition might appeal to Justices Sotomayor, Kagan and Kennedy in the wake of a full briefing on the issue.<\/p>\n

Death penalty proponents may argue that because the principle of stare decisis<\/em> demands decisions be made according to precedent, the question of the death penalty\u2019s constitutionality is moot. But that concept is inapplicable where \u201cthe governing decisions are unworkable\u201d[27]<\/a> or a past decision\u2019s rationale \u201cno longer withstands careful analysis.\u201d[28]<\/a> And unlike other constitutional issues grounded simply in the technical legal issues at stake, capital punishment decisions involve the personal feelings of the justices regarding state-sanctioned killing of human beings. [29]<\/a> Justice Ginsberg once noted<\/a> that while she wishes she could \u201cgo back to the day when the Supreme Court said the death penalty could not be administered with an even hand,\u201d she is not likely to get that opportunity. But Hidalgo\u2019s filing has given the high court just that. While the majority<\/a> of the public may still favor the death penalty, the government should aim to be better than the individuals they govern and the state should not have the power to decide who lives and who dies.<\/p>\n

As Justice Brennan announced, \u201cthe death penalty experiment has failed.\u201d [30]<\/a> And with Justice Kennedy\u2019s indeterminate time left on the court, I hope the Court will recognize that now is the time to answer the door and admit it.<\/p>\n

 <\/p>\n

[1]<\/a> Furman v. Georgia<\/em>, 408 U.S. 238 (1972).<\/p>\n

[2]<\/a> See id.<\/em><\/p>\n

[3]<\/a> Gregg v. Georgia<\/em>, 428 U.S. 153 (1976).<\/p>\n

[4]<\/a> Zant v. Stephens<\/em>, 462 U.S. 862, 877 (1983) (emphasis added).<\/p>\n

[5]<\/a> Id. <\/em>at 187.<\/p>\n

[6]<\/a> Glossip v. Gross<\/em>, 135 S. Ct. 2726, 2762 (2015)<\/p>\n

[7]<\/a> See Davila v. Davis<\/em>, 137 S. Ct. 2058 (2017); McWilliams v. Dunn<\/em>, 137 S. Ct. 1790 (2017); Moore v. Texas, 137 S. Ct. 1039 (2017); Buck v. Davis<\/em>, 137 S. Ct. 759 (2017).<\/p>\n

<\/a>[8]<\/a> See e.g. Siraci v. Florida<\/em>, 137 S. Ct. 470, 484 (2016) (Breyer, dissenting from denial for certiorari); Glossip<\/em>, 135 S. Ct. 2726 (Breyer, dissenting); Valle v. Florida<\/em>, 132 S. Ct. 2726, 2769 (2011) (Breyer, dissenting from denial of stay); Knight v. Florida<\/em>, 120 S. Ct. 459, 461 (1999) (Breyer, dissenting from denial for certiorari).<\/a><\/p>\n

[9]<\/a> Gregg<\/em>, 428 U.S. at 189.<\/p>\n

[10]<\/a> See Kennedy v. Louisiana<\/em>, 554 U.S. 407, 446\u2013447 (2008).<\/p>\n

[11]<\/a> See<\/em> Gregg<\/em>, 428 U.S. at 195, n. 46 (noting that a death penalty \u201csystem could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.\u201d).<\/a>
\n<\/a><\/p>\n

<\/a><\/p>\n

[12]<\/a> Glossip v. Gross<\/em>, 135 S. Ct. 2726, 2762 (2015).<\/p>\n

[13]<\/a> Gregg<\/em>, 428 U.S. at 172.<\/a><\/a><\/p>\n

[14]<\/a> Eddings v. Oklahoma<\/em>, 455 U.S. 104, 112 (1982).<\/p>\n

[15]<\/a> McCleskey v. Kemp<\/em>, 481 U.S. 279 (1987).<\/p>\n

[16]<\/a> Id. <\/em>at 288.<\/p>\n

[17]<\/a> Id. <\/em>at 328 (Brennan, dissenting).<\/p>\n

[18]<\/a> Buck v. Davis<\/em>, 137 S. Ct. 759 (2017).<\/p>\n

[20]<\/a> Id. <\/em>at 778.<\/p>\n

[21]<\/a> Id<\/em>.<\/p>\n

[22]<\/a> Siraci<\/em>, 137 S. Ct. at 484 (Breyer, dissenting from denial for certiorari).<\/p>\n

[23]<\/a> 428 U.S. 153.<\/p>\n

[24]<\/a> Woodson v. North Carolina<\/em>, 428 U.S. 280 (1976).<\/a><\/a><\/p>\n

<\/a>[25]<\/a> Arthur v. Dunn<\/em>, 137 S. Ct. 725, 733 (2017) (Sotomayor, dissenting).<\/a><\/p>\n

[26]<\/a> Kennedy v. Louisiana<\/em>, 554 U.S. 407, 447 (2008).<\/a><\/p>\n

[27]<\/a> Payne v. Tennessee<\/em>, 501 U.S. 808, 809 (1991).<\/p>\n

[28]<\/a> Lawrence v. Texas<\/em>, 539 U.S. 558, 577 (2003).<\/p>\n

[29]<\/a> https:\/\/www.washingtonpost.com\/politics\/courts_law\/gorsuch-casts-death-penalty-vote-in-one-of-his-first-supreme-court-cases\/2017\/04\/21\/2d9bc5dc-26a8-11e7-a1b3-faff0034e2de_story.html?utm_term=.b74539442b9d<\/a> (noting that \u201c[n]ew justices have described being the final word on whether a death-row inmate is executed \u2014 often during a late-night, last-chance appeal to the Supreme Court \u2014 as a time when the responsibility of the role crystallizes.\u201d).<\/a><\/p>\n

[30]<\/a> McCollum v. North Carolina<\/em>, 512 U.S. 1254, 1255 (U.S. 1994) (Brennan, dissenting) .<\/p>\n","protected":false},"excerpt":{"rendered":"

Death has been knocking on the Supreme Court\u2019s door for years. 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