Death Penalties, Raoul Berger

Full text

DUKE
LAW
JOURNVAL
Another
criticism concerns
the
rather
dated
sources
which
the
authors
rely
on in
many
instances. Most
of
the
sources
on
rural-urban
differ-
ences,
for
example,
are
decades
old.'
6
These
problems
are
rather
mi-
nor,
however,
and
the
overall analysis
is
valid.
Policymaking
and
Politics
in
the
Federal
District
Courts
will
be
less
useful
to
practicing attorneys
than
to
political
scientists
and
scholars
of
legal
behavior.
The
latter
groups
are
provided
with
a
sophisticated
em-
pirical
study
of
a
relatively
unexplored
area;
the
analysis
of
the impact
of
the appointing
president
is
especially
important.
Carp
and
Rowland
have
made
a
significant
contribution
to
the
judicial
behavior
literature;
their
book
is
an
important
study
of
the
lower
federal
courts.
Neil
D.
McFeeley
DEATH
PENALTIES,
Raoul
Berger.
Harvard
University
Press,
Cambridge,
Mass.,
1982.
pp.
242.
$17.50.
In
Death Penalties,
'
noted
constitutional
scholar
Raoul
Berger crit-
ically analyzes
the "abolitionist"
thesis
that
capital
punishment
is
"cruel
and unusual"
and
therefore
violative
of
the
eighth
and four-
teenth
amendments
to
the
federal
Constitution.
Berger
also criticizes
the
Supreme
Court
for
finding
support
in
the
eighth
amendment
for
judicial
review
of
the
proportionality
of
punishments
to
crimes. Before
inquiring
into
the meaning
of
the
"cruel
and
unusual
punishments"
clause,
he
decries
the
extension
of
the
eighth
amendment
to
the
states,
arguing
that
both
the
Supreme
Court's
selective
incorporation
doctrine
and
Justice
Black's
theory
of
en
bloc
incorporation
are
misguided.
2•
Berger's
view
is
that
the
due
process clause
of
the
fourteenth amend-
ment-the
vehicle
of
selective
incorporation-is
particularly
ill-suited
to
carry
the
eighth
amendment
over to
the
states
because
due
process
is
"procedural,"
whereas
punishments
are creatures
of
substantive
law.
3
Berger's
analysis
of
the
"cruel
and
unusual
punishments"
clause
takes
as
its
point
of
departure the
fact
that
capital
punishment
was
not
understood
to
be cruel
and unusual
per
se
in
1791,
the
year
of
the
ratifi-
16.
See
id
at
118-25.
1.
R.
BERGER,
DEATH
PENALTIES
(1982).
2.
Id
at
10-18.
3.
Id
at
18-28.
[Vol.
1984:621

BOOK
REVIEWS
cation
of
the
Bill
of
Rights.
4
In
addition
to
the
fact
that
the
states
and
the
federal
sovereign recognized
numerous
categories
of
capital
offense
in
1791,
Berger
cites
the fifth-amendment
guarantee
that
"no person
shall
be.
..
deprived
of
life.
. .
without
due
process
of
law"
as
evi-
dence
that
the
Framers
did
not
intend
to
disapprove
the death penalty.
5
Although the
colonies
were
considerably
less
draconian
than
the
Eng-
land
of
the
"Bloody
Code,"
the background
against
which
the phrase
"no
cruel
or
unusual
punishments"
originated,
Berger
relies
chiefly
upon
English
history
to
support
his
claim
that
the
eighth
amendment
contains no
principle
of
proportionality
in
sentencing.
6
Two conclu-
sions
follow,
in
his
view:
First,
capital
punishment
cannot
be cruel
and
unusual
in
a
constitutional
sense;
second,
proportionality
review
of
state
sentences
and
sentencing
procedures
by
the
Supreme
Court
is
an
unconstitutional
usurpation
of
legislative
power
by
the
federal
judici-
ary.
The
first
conclusion refutes
the
abolitionists on
the Court,
whose
number
has now
dwindled to
two;
the
second
conclusion
rebukes
the
Court
itself
for
making
proportionality
review
an
element
of
its
eighth-
amendment
jurisprudence.
Berger's conclusions
are
mediated
by
a
theory
of
constitutional
ad-
judication,
which
he expounds
here
and
elsewhere.
7
The
theory
rests
upon
two
premises.
The
first is
that
the Constitution
is
fundamentally
an
allocation
of
power, derived
ultimately
from
the
people,
between
competing
entities:
the
states
and the
executive,
legislative,
and
judicial
branches
of
the
federal government.
8
The
second
premise
is
that
key
phraseology
in
the
Bill
of
Rights--"due
process,"
"cruel
and
unusual
4.
Id
at
43-49.
Berger
is
not
entirely
clear
as to
the
exact
date with
reference
to
which
the
meaning
of
the
"no
cruel
and
unusual
punishments"
clause
is
to be
fixed.
The
years
1689,
the
year
of
the
adoption
of
the
English
Bill
of
Rights,
and
1790,
the
year
in
which
the
first
Congress
passed
the
Act
of
April
30,
1790,
1 Stat.
115,
providing a
death
penalty for certain federal
offenses,
figure
prominently
in Berger's discussion.
For
the sake
of
convenience,
I refer
to
the year
1791,
the
year
that
Bill
of
Rights was
ratified,
throughout.
5.
Id
at
46-47.
Berger
argues
that
to deny
that
the death penalty
is
exempt
from the
eighth
amendment
"is
to
render
those
[fifth
amendment
due
process]
safeguards
useless.
For
in
the
ab-
sence
of
death
penalties there
was
no
need
for
the
safeguards." Berger overlooks
the
fact
that
the
Constitution
defines
but
one
substantive
offense,
treason,
U.S. CONsT.
art.
III,
§
3,
cl. 1,
and
prescribes
no
punishment for
it.
Presumably, then,
Congress
might have
elected
not
to define
any
substantive
offenses
and
not
to penalize
the
one
substantive
offense
defined
in
the
Constitution.
Would
that
contingency
have
rendered
the
due
process
clause
"useless"?
Certainly
not,
for
due
process
still
would
govern
in
the
event
that
Congress
chose
to
define
crimes
and
enact
punish-
ments.
Of
course,
if
the Framers intended
that
it
be
conceptually impossible
for
the death penalty
to
withstand
the
prohibition
against
cruel
and unusual
punishments,
then
the
reference
in the
fifth
amendment
to
deprivation
of
life
would
have been
otiose;
but,
as
Berger
would
readily
concede,
such
was
not
the
Framers'
intention.
6.
R.
BERGER,
supra
note
1,
at
40-41,
114-15.
7.
See,
e.g.,
R.
BERGER,
GOVERNMENT
BY
JUDICIARY
(1977).
8.
R.
BERGER,
supra
note
1,
at
78-79,
194.
Vol.
1984:6211

DUKE
LAW
JOURVAL
punishments"-had
a
fixed, specifically
ascertainable
meaning
at
com-
mon
law, which
the Framers intended
to
incorporate
into
the
Constitu-
tion
with
all
its
fixity
and
specificity,
9
and
which
the
Framers
of
the
fourteenth amendment
had
no
wish
to
disturb.
10
Given
that
the death
penalty
was
not
considered
in
1791
to
be cruel
and
unusual,
it
follows,
for
Berger,
that
the
death
penalty
is
not
so
now.
Given
that
the
Consti-
tution
is
essentially
a
scheme
allocating power,
it
follows,
for him,
that
a
novel
judicial
reading
of
fixed
common
law
phraseology
is
a
usurpation.
The
persuasiveness
of
Berger's conclusions
rests
heavily
upon that
of
his
second
premise. His
claim
is
that
the Framers intended
the
phrase
"cruel
and
unusual
punishments"
to
apply
to
all
and
only
those
punishments
thought
to
be
"barbarous""'
in
1791,
that
is,
to
a
list
which
would
include
crucifixion
and
boiling
in
oil,
but not
disembow-
elment
while alive.'
2
The
Framers
chose
to
use
the phrase
"cruel
and
unusual,"
rather
than
to
list
punishments
contemporaneously
thought
barbarous
because,
in
Berger's
view,
"to
express
all
that
was
implicated
•
. .
would
have
required
prolix detail
unsuited
to
a
Constitution."'
3
Berger's second
premise
is
unconvincing
for
two
reasons.
The
first
is
that
it
is
inconsistent
with
the
generality
of
application
that
principles
must
have.
Berger
is
aware
of
the
difficulty,
but
attempts to elude
it
by
a
distinction:
Of
course
the
Fourth
Amendment
"search
and
seizure"
principle,
for
example,
goes
beyond physical
searches
to
comprehend
current
wire-
taps
and
electronic surveillance.
They are
analogous
to
what
was
prohibited
and
illustrate
the
application
of
a principle
to similar
facts.
Very
different
is
the
abolitionist
reading
of
the
cruel
and
unu-
sual
punishments
clause-that
clause
did
not
prohibit
death penal-
ties
....
Consequently
[the
abolitionist
is]
not
giving
a
"wider
application" to
an
accepted
principle
but
replacing
the
princiole
with
its own
opposite.'
4
Berger's
reply
is
oblivious
to
the
fact
that
what
is
not
cruel
and unusual
at
one
time may
become
so
later, and
may
become
so
not
because
the
standard
has
been altered
but
because
the
properties
of
the
punishment
itself,
in
its
social
context,
may
change.
The
eighteenth century gener-
ally
regarded
death
as
but
a
passage
to
another and
possibly
quite
pleasanter
mode
of
existence;
the
twentieth
century, on the
other hand,
9.
Id
at
59-76.
10.
fd
at
50-58.
11.
Id
at44.
12.
Id
at
41.
13.
Id
at
62.
14.
Id
at
73
(emphasis
in
original).
[Vol.
1984:621

BOOK
REVIEWS
takes
much
more
seriously
the thought
that
individuals
do
not
survive
"biological"
death.
15
Berger,
at
one
point,
betrays
an
awareness
that
what
is
unusual
at
one
time
need
not
be
so
at
another,
but
insists
that
"unusual"
in
its
constitutional
sense
must mean what
was
unusual in
1791.16
Another
weakness
in
Berger's
reply
is
that
it
approves
judicial
analogies to
"similar
facts"
without
acknowledging
the
depth
of
this
concession.
Is
death
by
electrocution
more
like
disembowelment while
alive,
or
is
it
more
like
boiling
in
oil?
If
Berger
intends
to
allow
the
Court
to decide
what
is
"analogous"
to
"similar
facts"
where
post-1791
forms
of
punishment
are
concerned,
then
he
must
give
up
his claim
that
judicial
review
becomes
usurpation
as
soon
as
it
goes
beyond
the
Fram-
ers'
particular
intentions.
As
it happens,
the
commonest
means
of
exe-
cution
today
were
unknown
in
1791.
Berger's second
premise
is
unconvincing
for
another
reason.
If
Berger
is
right
about
the
meaning
of
key
constitutional
phraseology,
then
it
follows
that
the Framers intended
to
insulate
their
detailed
gov-
ernmental
scheme
both
from
interpretation in
light
of
moral
philoso-
phy
and
from
amendment
by
mere majorities.
Berger
is
quick
to
fault
activists
for
failing
to confront the
"countermajoritarian"
difficulty I7
that
besets
their
theory
of
judicial
review,
but
he
is
not
greatly
troubled
by the
equally
serious
difficulty
of
rationalizing
our
constitutionalism,
under
which
the
wishes
of
a group
of
white males,
numbering
in the
tens
of
thousands
and
now
dead
nearly
two
centuries,
can
override
the
preferences
of
diverse
contemporary majorities
numbering
in
the mil-
15.
I
owe
this
example to Professor
Walter
Dellinger.
Ronald Dworkin
would
warn
"aboli-
tionists"
not
to ignore
his
distinction
between
"concepts"
and
"conceptions,"
R.
DWORKIN,
TAK-
ING
RIGHTS
SERIOUSLY
134-36
(1977),
for,
otherwise, they
"are
forced
to
argue
in
a
vulnerable
way.
They
say
that
ideas
of
cruelty
change
over
time
...
[but]
this
suggests
that
the
Court
must
change
what
the Constitution
enacted."
Id
at
136.
Dworkin
anticipates Berger's
argument,
and
appears
to
believe
that
the
"concepts-conceptions"
distinction
is
necessary
in
order
to
deflect
it.
The
present
point
is
that
the
death
penalty must be measured
anew because
our
knowledge
of
its
causal
powers,
natural
and
supernatural,
has
changed.
Dworkin might
prefer
to
say
that
our
secular
metaphysics
lends
itself
to
a
liberalized conception
of
cruelty,
but
this
language
suggests
that
a
merely
interior,
subjective
shift
is
at
issue.
It
should
also
be mentioned
that
in
1791
the
penitentiary
was
at
most an experimental
alter-
native
to
corporal
punishments.
Market
Hill,
the
first
American prison,
was
founded
in
Philadel-
phia
in
1790.
As
the colonies-turned-states enacted
criminal
codes
more lenient
than
the
British,
they began
in
earnest
to
construct prisons.
B.
MCKELvEY,
AMERICAN
PRISONS
1-9
(1936).
Life
imprisonment, which
today
is
the
commonest
alternative
to
execution,
did
not
become
feasible
until
the
penitentiary
movement
had
established
itself.
See
generally
M.
FOUCAULT,
DISCIPLINE
AND
PUNISH:
THE
BIRTH
OF
THE
PRISON
114-31
(A.
Sheridan,
trans.
1977).
16.
Id
at
41.
17.
Id.
at
103-04.
Vol.
1984:6211

DUKE
LAW
JOURNAL
lions.'
8
Berger recognizes
that
constitutional
provisions
impose
re-
straints
on
the
freedom
to
govern,
but
he
appears
to
believe
that
adherence
to
the
narrowest
canons
of
construction
removes
the
diffi-
culty.
I9 It
does
not,
for the
difficulty
is
in
fact
aggravated
if
the
ex-
pounders
of
a
constitution
are denied
the
resources
of
the subsequent
moral
and
political
experience
of
the
culture.
The
idea
that
legitimacy
of
positive
law
is
ultimately drawn
from
something
beyond
itself
is
hardly
novel.
20
Berger's
belief
is
that
the
"Constitution
is
certain
and
fixed;
it
contains
the permanent
will
of
the
people."
'2'
He
derides
Jus-
tice
McKenna's
concept
of
"public
opinion.
. .
enlightened
by
a
hu-
mane justice"
22
as
mysticism,
yet
his
own
notion
of
a
"permanent
will
of
the
people"
seems
no
less
mystical
and
fails to
explain
why
the
"will
of
the
people"
in
1791
should command the
obedience
of
contrary-
minded
majorities
today,
or
even
that
of
contrary-minded
minorities
in
1791.
The
difficulty
is
at
least somewhat
mitigated
if
the Framers are
understood
to
have
intended-by
their
audacity
in proposing
a
consti-
tution,
if
by
nothing
else-that
the document
be
read
by
the light
of
the
accumulated
experience
and
emerging
conscience
of
humankind.
Berger
is
most
convincing
in
his
criticism
23
of
the
Supreme
Court's
tortuous
route from
McGautha
v.
California,
2 4
which
held
that
the
four-
teenth amendment
does
not
permit unguided
jury
discretion
in
choos-
ing
to
impose
a
death
sentence,
to
Lockett
v.
Ohio,25
in
which
the
plurality
wrote
that
the
eighth
amendment
requires
that
the
jury
be
able to
consider
any
mitigating
factor
or
circumstance
in
exercising
its
discretion.
The
moral
Berger
draws
from
the
story
is
that
the
Court
is
incapable practically,
as
well
as
incompetent constitutionally,
to
deter-
18.
See
J.
ELY,
DEMOCRACY
AND
DISTRUST
(1980)
11;
Brest,
The Misconceived
Questfor
the
Original
Understanding,
60
B.U. L.
REv.
204,
225
(1980);
See
also
Oliphant,
To
ward
a
New ERA?
35
NAT'L
REV.
742,
742
(1983)
("Amending
the
Constitution
is
just
shy
of
impossible.
Of
some
nine thousand
constitutional amendments
that
have
been
introduced
in
Congress, only
26
have
been
ratified-i
I
of
them
in
the
Eighteenth
Century)."
19.
R.
BERGER,
supra
note
1,
at
49.
20.
See,
e.g.,
Fuller,
Positivism
and
Fidelity
to
Law-A
Reply
to
Professor
Hart,
71
HARV.
L.
REv.
630, 638-48
(1958).
Cf.
Wechsler,
To
ward
Neutral
Principles
of
ConstitutionalLaw,
73
HARV.
L.
REv.
1,
19-20
(1959)
(legitimacy
ofjudicial
review
inheres
in
principled
quality
of
the
Court's
decision-a
"principled
decision"
being
one
that
"rests
on reasons
that
in
their
generality
and
their neutrality
transcend
any immediate result").
21.
R.
BERGER,
supra
note
1,
at
66
(quoting
Van
Home's
Lessee
v.
Dorrance,
2 U.S. (2
Dall.)
303,
308
(C.C.D.
Pa.
1795))
(Berger's emphasis).
22.
R.
BERGER,
supra
note
1,
at
59-60
(quoting
Weems
v.
United
States,
217 U.S.
349,
378
(1910)).
23.
Id
at
127-52.
24. 402
U.S.
183
(1971).
25.
438
U.S.
586
(1978).
[Vol.
1984:621

BOOK
REVIEWS
mine
what
is
demanded
by
the
society's "evolving
sense
of
decency.
'26
An
abolitionist
does
not
concede
much,
however,
by
confessing
that
the
formula "no
cruel
and
unusual
punishments"
does
not
gain
anything
from
the
gloss,
"as
measured
by
society's 'evolving
sense
of
de-
cency.'
"27
After all,
Brown
v.
Board
of
Education
28
reached
its
result
by
measuring
segregation directly
against
the
standard
of
equal
protec-
tion, without
explicitly
considering
whether
society's
sense
of
decency
had
sufficiently
evolved
to
dictate
the
same answer.
Arguably,
it
had
not.
If
the
Supreme
Court
ever
does
hold
the
death
penalty
to
be
un-
constitutional,
it
could
well
do
so
by
directly
confronting
the
simple
question,
"Is
this
cruel
and unusual
punishment?",
leaving
society's
sense
of
decency
to
catch
up
if
necessary.
Berger argues
that
it
would
be
proper
under
the
exceptions
clause29
for
Congress
to
curb
the Court's
excesses
by
removing
state
punishments,
and
proportionality
review
thereof,
from
the
Court's
ju-
risdiction.
30
This
raises
constitutional
issues
that
range
far
beyond
the
specific
question
of
capital
punishment,
but
here,
as
elsewhere,
the
au-
thor's
analysis
is
provocative,
abundantly
researched,
and,
in
certain
respects,
unquestionably
sound.
31
William
A.
Edmundson
26.
R.
BERGER,
supra
note
1,
at
152
(quoting
Trop
v.
Dulles,
356 U.S.
86,
101
(1958)).
27.
Trop
v.
Dulles,
356
U.S.
86,
101
(1958).
28.
347
U.S. 483
(1954).
29. U.S.
CONST.
Art.
III,
§
2,
cl.
2.
Berger's
view
of
the
exceptions clause
has
been
in
flux.
Compare
R.
BERGER, CONGRESS
V.
THE
SUPREME
COURT
289
(1969)
("[D]iscussion
of
the
excep-
tions
power in
the
Ratification
conventions revolved almost
exclusively
about
the retrial
of
facts
found
by
a
jury.
...
There
was
not the
faintest
intimation
...
that
the
'exceptions' clause
was
designed
to
enable
Congress
to
withdraw
jurisdiction
to declare
an
Act
of
Congress
void.")
with
R.
BERGER,
supra
note
1,
at
162
("The
Framers
preoccupation with safeguarding
jury
findings from
revision
by
the
court
is
unaccompanied
by
overtones
of
exclusivity.").
30.
R.
BERGER,
supra
note
1,
at
153-72,
201-04.
31.
Thanks
are
due
to Professor
Walter
Pratt,
who
commented
on
an
early
draft
of
this
review.
Vol.
1984:621]