Death penalty doctrine subject of series

BY MICHELLE HERSHMAN, L’07

In October 2002, Corinna Lain, associate professor of law, was scared—scared enough to forgo a field trip to the pumpkin patch with her daughter. She was scared because the Beltway Sniper was on the loose. Lain recalls predicting that when the sniper was caught, his punishment would be the same fate he imposed—death.

What Lain did not know was that there were two snipers, and one was only 17 years old—a child in the eyes of the courts. His trial took place in Virginia, a state that not only authorized the juvenile death penalty, but also had the second highest number of executions in the country. When the jury came back with life, Lain thought the juvenile death penalty was dead.

Two years later, the U.S. Supreme Court officially invalidated it. Lain didn’t know anything about death penalty doctrine at the time, but she had a growing interest in the subject and decided to write about it. She has published the first of a three-part series of scholarly articles on the subject.

“My scholarly interest is in attacking the conception we have about the Supreme Court’s role in our constitutional democracy,” Lain says. “We tend to think of the court as a heroic protector of unpopular minorities from majority tyranny, but in reality the justices rarely buck the tide of popular sentiment.”

 Lain realized the death penalty context was the perfect place to test her theory.

“Capital defendants are enormously unpopular and uniquely susceptible to majoritarian overreaching,” she says. “They are almost always poor, disproportionately black, and are all too often recipients of notoriously bad legal representation.”

When Lain began researching her project, she discovered a doctrinal twist. Although the death penalty context might seem like the perfect place for the court to take a countermajoritarian stance, death penalty doctrine renders this virtually impossible.

“The doctrine itself is majoritarian,” Lain says. “It requires the court to follow ‘evolving standards of decency.’”

However, Lain does not believe doctrine is the culprit here.

“While others complain about the inconsistency, my point is it really doesn’t matter,” she says. “The court’s decisions in the death penalty context would follow popular sentiment no matter what doctrine says.”

Lain proves her point in the first article, “Furman Fundamentals,” which appears in the February issue of Washington Law Review. In it, Lain makes an in-depth, historical examination of the most famous death penalty case, Furman v. Georgia. Decided in 1972, Furman invalidated the death penalty. 

“Ever wonder why Charles Manson is still alive?” Lain asks. “Furman struck down 35 state statutes, yet upon close inspection, the decision still shows the court following the tide of the times.”

Lain demonstrates how even seemingly countermajoritarian decisions like Furman reveal the justices moving with popular opinion. 

“However, Furman didn’t settle the death penalty debate,” Lain says, “It mobilized those who were losing it.” 

In her second piece, which she will send out for publication in the spring, Lain takes a closer look at the role of doctrine in death penalty cases. In the article, “Deciding Death,” she contends that death penalty scholars have missed a giant disconnect between majoritarian doctrine and majoritarian results.

In the final article, “Death is Different (But Not Really),” Lain compares the Supreme Court’s death penalty decisions with decisions in other doctrinal areas, including Brown v. Board of Education and Roe v. Wade.

In all of those cases, Lain points out that the Supreme Court did not protect minority rights until at least half the country was comfortable with that protection. 

“Even then, the court’s so-called ‘help’ actually set back the very movement it was trying to help,” she says. “A practice fading on its own suddenly enjoyed renewed support.”

So where does all this lead? So what if the justices can’t live up to our grand notions about playing the hero?  Lain replies with a question. 

“Then why do we have nine unelected people making these decisions in the first place?”