October 29, 2020

Ruth Bader Ginsburg: On the Death Penalty

The late Supreme Court Justice Ruth Bader Ginsburg championed equal protection under the law, including for those on death row.

The late Supreme Court Justice Ruth Bader Ginsburg championed equal protection under the law, including for those on death row.

U.S. Supreme Court Justice Ruth Bader Ginsburg died on September 18, 2020, at the age of 87. Justice Ginsburg was confirmed to the Court in a 96-3 Senate vote in 1993—an unthinkable margin of bipartisan support by today’s standards. Throughout her career, she fought for all Americans to receive equal treatment under the law. A champion of issues such as gender equality, abortion rights, same-sex marriage, and healthcare, when it came to death penalty jurisprudence, Justice Ginsburg took a measured and deliberate approach.

During her confirmation hearings, Justice Ginsburg declined to give her personal views on the death penalty, stating that, as in all decisions, she would be “scrupulous in applying the law based on legislation and precedent.” Before her appointment to the Court, Justice Ginsburg had little recorded interaction with death penalty cases and had never encountered a death penalty case as a judge on the Court of Appeals for the D.C. Circuit. Her only writing on the death penalty before her term on the Supreme Court came in a jointly authored amicus brief while working at the ACLU. The brief, filed in Coker v. Georgia (1977), argued that imposing the death penalty for cases of rape violates the Eighth Amendment.

Following her appointment to the Court, Justice Ginsburg was careful to keep her personal opinions on the death penalty away from her judicial opinions. While in a 2014 interview Justice Ginsburg noted that, “if [she] were in the legislature, there’d be no death penalty,” she made a deliberate decision to mainly keep those views private so as to build her credibility and persuasiveness with the other justices. However, according to the Death Penalty Information Center, she voted in the majority of every 5-4 Court decision that favored capital defendants and death row prisoners in the past 20 years. These decisions include Roper v. Simmons (2005), which banned capital punishment for defendants under 18 at the time of the crime, and Kennedy v. Louisiana (2008), which restricted the death penalty to cases in which a person is killed. More recently, Justice Ginsburg voted with the 5-4 majority to decide Hall v. Florida (2014), which prohibited Florida’s use of a strict numerical cutoff in IQ scores for determining intellectual disability.

Capital Case Majority Opinions and Concurrences

Justice Ginsburg called death penalty law dense when she was first appointed to the Court and noted that it has only become more complicated with time. When writing for the majority in death penalty cases, Justice Ginsburg crafted careful decisions relying on a commitment to precedent and procedural fairness.

Justice Ginsburg’s first majority opinion in a capital case came in Shafer v. South Carolina (2001), which addressed “the right of a defendant in a capital case to inform the jury that, under the governing state law, he would not be eligible for parole in the event that the jury sentences him to life imprisonment.” The case turned on the interpretation of an earlier decision, Simmons v. South Carolina (1994), which held that where a capital defendant’s future dangerousness is at issue and the only alternative sentence to death is life without the possibility of parole, due process requires that a judge instruct the jury that the defendant will never be eligible for parole if the jury returns a life recommendation. The South Carolina Supreme Court held that Simmons did not apply in Shafer’s case because under South Carolina’s new capital sentencing scheme, there were initially three available sentencing options to the defendant: if the jury did not find any of the statutory aggravating factors necessary to impose a death sentence, the court could impose a mandatory minimum sentence of thirty years. As Justice Ginsburg pointed out, however, this third sentencing option is only available in cases where the jury does not find any of the statutory aggravators necessary to impose a death sentence. Once the jury has found at least one statutory aggravator to be true beyond a reasonable doubt, as they did in Shafer’s case, then the jury is left to return a recommendation either for death or life without the possibility of parole. Thus, Justice Ginsburg concluded, the South Carolina Supreme Court misapplied the precedent established by Simmons.

In her majority opinion in Maples v. Thomas (2012), another 7-2 decision, Justice Ginsburg found that when a petitioner’s efforts to comply with procedural rules are impeded by external factors that cannot fairly be attributed to the petitioner—such as the abandonment of the petitioner by counsel, severing the “agent” relationship—there is “cause” to excuse the procedural defect. Justice Ginsburg wrote that “[a]bandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door.” In dissent, Justices Scalia and Thomas argued that Maples had not been abandoned by his counsel, as he technically retained counsel throughout the proceedings—even though they had ceased any work on his case.  

In Moore v. Texas (2017), Justice Ginsburg, writing for a five-member majority, overturned Texas’s longstanding judicial scheme for determining intellectual disability in death penalty cases. Bobby James Moore was convicted and sentenced to death for fatally shooting a store clerk. During state habeas proceedings, the trial judge found that Moore had established he had an intellectual disability and recommended his death sentence be overturned under Atkins v. Virginia (2002). The Texas Court of Criminal Appeals refused the lower court’s recommendation, however, and upheld Moore’s death sentence based on the court’s own scheme for determining intellectual disability, which relied on outdated medical guidelines for assessment. Justice Ginsburg’s opinion clarified the standards for determining intellectual disability to ensure that people with intellectual disabilities would not be executed on account of non-scientific or medically unsound assessments, as Texas relied on in Mr. Moore’s case.

In spite of her strong record of support for issues raised by death penalty prisoners at the Supreme Court, Justice Ginsburg did not always vote in their favor. In Victor v. Nebraska (1994), for example, the Court considered a death penalty case in which the petitioner argued that Nebraska’s jury instructions concerning reasonable doubt were unconstitutionally vague. Specifically, the question presented to the Court was how “beyond a reasonable doubt” needed to be defined to satisfy due process. In a unanimous decision, the Court determined that the definition the Nebraska court provided was sufficient to satisfy constitutional concerns. The Court held that an instruction on reasonable doubt is only unconstitutional where there is a reasonable likelihood that a jury would convict on a lower standard. In a separately authored concurrence, Justice Ginsburg stressed that while she agreed that the state’s instruction met constitutional muster, the Supreme Court’s role here was only to determine if the definition of “reasonable doubt” given at trial was rational—not whether it was perfect.

Capital Case Dissents

Justice Ginsburg’s first dissent in a death penalty case came in Romano v. Oklahoma (1994), shortly after she was confirmed to the bench. There, the Court considered whether introducing evidence at sentencing that the defendant had been sentenced to death previously unconstitutionally lessened the jury’s burden in deciding his fate. The majority held that it did not, finding that the evidence of the prior death sentence did “not affirmatively mislead the jury regarding its role in the sentencing process so as to diminish its sense of responsibility for the capital sentencing decision.” In her dissent, Justice Ginsburg, joined by Justices Blackmun, Stevens, and Souter, wrote that because “consideration of evidence…that a prior jury had already sentenced Romano to death, infected the jury’s life-or-death deliberations,” she would remand for a new sentencing trial under the precedent established by the Court in Caldwell v. Mississippi. There, the Court held that a prosecutor’s statements during penalty phase closing arguments that the jury’s decision was not really final, as it would be reviewed on appeal and by other courts, unconstitutionally distanced the jurors from their sentencing responsibility. Justice Ginsburg identified the same error in Romano, writing that “[t]he risk of diminished jury responsibility was also grave in Romano’s case.”

In other dissents, Justice Ginsburg expressed a deep concern with the “quality of justice” in capital cases. In Gray v. Netherland (1996), the prosecutor misled the defendant about what evidence would be used during sentencing and introduced evidence of unadjudicated crimes without notice. The trial court allowed the evidence, and Gray was sentenced to death. After Gray’s state and federal habeas petitions were denied, a majority of the Court held that because due process does not require complete disclosure of the evidence that will be brought against a defendant, a new rule of constitutional law would be required to find that due process was violated in Gray’s case. In dissent, Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, wrote that “due process in criminal proceedings is the right to a full, fair, potentially effective opportunity to defend against the State's charges. Petitioner Gray was not accorded that fundamental right at the penalty phase of his trial for capital murder. I therefore conclude that no ‘new rule’ is implicated in his petition for habeas corpus.”

Later in her career, Justice Ginsburg more openly expressed her personal views on the death penalty. In the 2014 case Glossip v. Gross, which upheld the constitutionality of a lethal injection protocol in Oklahoma, Justice Ginsburg joined Justice Breyer’s lengthy dissent questioning the constitutionality of the death penalty writ large. Justice Breyer’s dissent noted that the constitutionality of any punishment needs to be evaluated under current legal and social standards, and that the fact that the death penalty is so rarely used indicates that it is becoming “unusual.” This, Justice Breyer reasoned, likely makes capital punishment unconstitutional under the Eighth Amendment. In an interview at Duke Law School, Justice Ginsburg discussed her decision to join the dissent, focusing on the growing evidence of wrongful convictions on death row, the quality of representation available to death row prisoners, and the racial and geographic disparity in the use of the death penalty. 

Whether she was writing for the majority, or authoring a separate concurrence or dissent, Justice Ginsburg’s death penalty jurisprudence focused on her strong belief in procedural fairness and her concerns over imbalances of power between state actors and capital defendants. Like in so many areas of law, her absence from the Court in the area of death penalty jurisprudence will be clearly felt.