Notes

The 1ac will receive an upgrade as I read through more law reviews and work on
developing ways to frame the impact(s) better. I will post a new 1ac before the start of
camp.

My next stage of research will involve cutting this book and law reviews

Courting Death: The Supreme Court and Capital Punishment, Steiker & Steiker, 2016

Williams, 17 --- Professor of Law, South Texas College of Law Houston (Kenneth, “Why and How the
Supreme Court Should End the Death Penalty,” 51 U.S.F. L. Rev. 271, Nexis Uni via Umich Libraries, JMP)

Judges, Ph.D. in Clinical Psychology & Professor of Law at University of Arkansas, 99

(Fall 1999, Donald P., “Scared to Death: Capital Punishment as Authoritarian Terror Management,” 33
U.C. Davis L. Rev. 155, Nexis Uni via Umich Libraries, JMP)

Special thanks to Alyssa Corrigan, Tim Mahoney, Scott Phillips and DHeidt for their
assistance and input in putting this file together.
Death Penalty Aff
1ac
 1ac Adv – Human Dignity

The federal government is resuming capital punishment --- it can be applied to a

prisoner in any state
Czajka, 19 --- graduate of Northwestern University's Medill School of Journalism (Kelley, 7/25/19,
“HOW DOES THE FEDERAL DEATH PENALTY WORK? The federal government has announced plans to
resume capital punishment. But the order will likely face challenges,” https://psmag.com/news/how-
does-the-federal-death-penalty-work, accessed on 3/13/2020, JMP)

The United States Department of Justice (DOJ) has directed the Federal Bureau of Prisons to allow the
federal government to resume capital punishment for the first time since 2003. In the announcement
released Thursday, Attorney General William Barr ordered the executions of five federal death row
inmates, scheduled to take place in December of 2019 and January of 2020, with an intention to
schedule additional executions at a later date.

"Under Administrations of both parties, the Department of Justice has sought the death penalty against
the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers
after a full and fair proceeding," Barr said in a statement. "The Justice Department upholds the rule of
law—and we owe it to the victims and their families to carry forward the sentence imposed by our
justice system."

The statement released by the DOJ includes brief descriptions of the violent crimes committed by each
of the five inmates, noting they have all exhausted their appellate and post-conviction remedies, leaving
no legal impediments to the application of the death penalty.

Still, the order isn't necessarily a green light to begin executions. It will probably face challenges,
particularly regarding Barr's proposed new lethal injection protocol. In case you need a refresher after
16 years, here's an explanation of the current state of the federal death penalty.

HOW IS THE FEDERAL DEATH PENALTY APPLIED AND EXECUTED?

Federal death penalty cases are authorized by the DOJ in consultation with local U.S. attorney offices
(U.S. attorneys represent the federal government in district courts and appeals courts). According to
Capital Punishment in Context, an online resource for those studying the death penalty, a committee
within the DOJ reviews all federal death-eligible cases, taking into consideration defense attorneys'
reasons not to seek the death penalty, and makes recommendations to the attorney general on whether
to seek the death penalty. Before seeking the death penalty, local U.S. attorneys must obtain the
consent of the U.S. attorney general, who makes the final decision on whether to seek the charge.

Those indicted of federal death-eligible crimes are assigned two defense attorneys and are prosecuted
by U.S. attorneys. Those who are convicted and sentenced to death are allowed one appeal (except for
rare occasions where they can have more), and the president alone has the power to grant clemency to
a prisoner on federal death row. Federal prisoners are held in the Special Confinement Unit at U.S.
Penitentiary Terre Haute in Indiana. There are currently 62 prisoners on federal death row.
The lengthy list of crimes punishable with the federal death penalty includes offenses like espionage,
treason, and various instances of murder. But according to the Death Penalty Information Center, the
federal death penalty is frequently applied in cases where a conviction or death sentence would have
been available at the state level. All current death row inmates have been convicted of crimes involving
murder or death; none have been convicted of treason, espionage, or air piracy, and only one case was
related to terrorism.

STATE OPPOSITION TO THE DEATH PENALTY IS STILL ON THE RISE

The order comes at a time when more and more states, with mounting conservative support, are
making moves to abolish the death penalty: Most recently, New Hampshire repealed the death penalty
in May of 2019, and bipartisan legislators in Wyoming, Montana, and Kentucky all introduced bills to end
capital punishment in their states this year.

However, state opposition does not impede the federal government from applying the death penalty
to a prisoner from that state.

As it stands, 21 states and Washington, D.C., have outlawed the death penalty, four have a governor-
imposed moratorium, and 25 allow the death penalty, according to the Death Penalty Information
Center. Although it's only legal by state law in half of the U.S., the federal death penalty applies to all
50 states, D.C., and other U.S. jurisdictions.

IS THE FEDERAL DEATH PENALTY AN OVERSTEP OF STATE POWERS?

States traditionally have the power to define and enforce criminal law, leading to questions about the
constitutionality of the federal government's right to exercise capital punishment, especially when so
many states oppose it. The federal death penalty was outlawed in the 1972 case Furman v. Georgia,
which found that it constituted cruel and unusual punishment and was applied in an inconsistent,
discriminatory manner. It was reinstated in the Anti-Drug Abuse Act of 1988 for a short list of crimes,
and then lengthened to include 60 offenses in the Federal Death Penalty Act of 1994. This drew criticism
from a range of scholars, anti-death penalty advocates, attorneys, and more for overriding state
powers.

"Problems unique to the federal death penalty include over-federalization of traditionally state crimes
and restricted judicial review," Ruth Friedman, director of the Federal Capital Habeas Project, told CNBC.
"These and other concerns, including troubling questions about the new execution protocol, are why
there must be additional court review before the federal government can proceed with any execution."

Federal death penalty can be triggered by 60 different offenses and the DOJ is
intervening to take over state cases --- federal cases receive weaker review and
disproportionately target blacks
Segura, 19 --- award-winning investigative journalist covering the U.S. criminal justice system, with a
longtime focus on harsh sentencing, the death penalty, and wrongful conviction (7/29/19, Liliana
Segura, “WITH FEDERAL EXECUTIONS LOOMING, THE DEMOCRATS’ DEATH PENALTY LEGACY IS COMING
BACK TO HAUNT US,” https://theintercept.com/2019/07/29/death-penalty-federal-executions/,
accessed on 4/14/2020, JMP)
WHEN ATTORNEY GENERAL William Barr
announced last week that the Trump administration would restart executions after more
than a decade and a half, it was news that capital defense attorneys had been dreading for years . “It was like
a gut punch,” said Indiana federal public defender Monica Foster, who got the email just as she was about to visit a client at the federal supermax prison in
Florence, Colorado.

As word spread, attorneys and advocates moved past the shock and into action. “We were always prepared for this,” Madeline Cohen, a Boulder-based veteran
capital defense lawyer, said on Thursday night, after a long day spent fielding phone calls, including from clients. “We’ve been prepared for this since the beginning
of the administration.”

Though they are scattered across the country, the lawyers who represent people on federal death row are part of a close-knit legal community. After the 2016
election — and Donald Trump’s choice of Jeff Sessions as attorney general — many had braced themselves for the U.S. government’s execution machinery to
restart. As time passed, the lawyers kept their heads down, focusing on their clients and cautious not to make public waves. But the looming threat was never far
from anyone’s mind.

The de facto moratorium on federal executions could be traced to problems with lethal injection that have destabilized the death penalty for years. The last
execution at the federal supermax prison in Terre Haute, Indiana, was carried out in 2003, using the prevailing formula at the time: a three-drug protocol starting
with the anesthetic sodium thiopental, followed by a paralytic to stop respiration, and culminating in a fatal dose of potassium chloride, to cause cardiac arrest. In
2005, three men on federal death row challenged the method as cruel and unusual in D.C. District Court, providing numerous examples of executions dating back to
the 1980s that had caused visible suffering. The lawsuit also raised questions unanswered by the government’s protocol, including about the qualifications and
training among those tasked with carrying out executions.

The litigation over lethal injection brought federal executions to a halt. Although the U.S. Supreme Court would uphold the same three-drug protocol in response to
a state challenge in 2008, another obstacle soon followed. The sole U.S. manufacturer of sodium thiopental ceased production of the drug, in large part due to
pressure by human rights activists. This prompted a desperate search for new sources — and eventually, new drugs. In March 2011, then-Attorney General Eric
Holder wrote back to states requesting sodium thiopental from the federal government, explaining that the administration had no reserves and was “facing the
same dilemma.”

At the heart of Barr’s announcement on Thursday is a new one-drug protocol using pentobarbital — the same method currently used by Texas, Missouri, and
Georgia. The protocol is summarized in two pages that, like similar state documents, provide for the anonymity of executioners while offering no information about
the origin of the drug. Although Barr notes that “14 states have used pentobarbital in over 200 executions,” evidence has shown that it is neither reliable nor
humane for lethal injection. Dwindling supplies have led states to seek out compounding pharmacies, whose lack of regulation heightens the risk that the drug will
be contaminated or ineffective. Just as states have kept these sources under wraps, the Barr memo makes clear that the government intends to ignore longstanding
federal law — the Administrative Procedures Act — that is supposed to ensure that such government powers are subject to a public rule-making process. To many
lawyers, this lawlessness is one of the most galling parts of last week’s news. “That will really cut off the public’s ability to know what’s happening,” Cohen said.

It is also clear that the

first five men scheduled to die were carefully chosen. All were convicted of crimes
against children or elderly people — offenses likely to dampen public outrage as their execution dates
approach. And none of the condemned men are parties to the lethal injection lawsuit, showing that the government intends to circumvent the ongoing
litigation. When it comes to race, Foster points out, the list “was curated in a really cynical way.” Three of the five

are white men — the first set to die is a white supremacist — which belies the extent to which federal death row is racially skewed.
If executions proceed and continue, she said, “it’s going to be black person after black person after black
person.”
With five executions now set to take place in quick succession beginning December 9, Americans are being confronted for the first time in years with a system that
is largely abstract and unfamiliar. Many
of the assumptions that persist about capital punishment at the state level
— including that it is reserved for the “worst of the worst” — are mirrored by perceptions of capital
punishment at the federal level. One is the belief that the federal death penalty targets terrorists. In
fact, of the 62 people on federal death row, only one , Dzhokhar Tsarnaev, was convicted on terror charges.

Another is the notion that the federal system is somehow superior to what exists in the states , a myth
repeated by Hillary Clinton on the campaign trail in 2016. “People think the federal death penalty is the gold standard,” said Foster, who has handled state and
federal cases from coast to coast. “That is absurd.”

Cohen recalls her surprise when she first started handling federal cases. As jaded as she had become after decades of capital defense on state cases, she said, “I
thought the federal cases would be cleaner. I thought they would involve really good defense lawyers and really careful judging and really smart prosecutors and
lots of judicial review. And I was really shocked to find that it is not that way.” In
any close examination of federal death penalty
cases, “you will find trauma, you will find mental illness, you’ll find procedural disasters, you’ll find junk science, you’ll
find all kinds of problematic stuff because the federal death penalty is plagued by the same problems

that have caused people to move away from the death penalty in the states.”
Many have noted that the move to restart executions defies national trends showing the death penalty moving toward extinction. Given Trump’s longtime zeal for
capital punishment, it is understandable that his critics see the decision as yet another low point in his tenure. But while Trump’s Democratic opponents have
condemned his actions — and even responded with new abolition legislation — it is only very recently that the party began to turn away from capital punishment.
The 2020 race is the first time in decades that all major Democratic candidates are on record as opposing it.

Particularly notable is Joe Biden, who came out against the death penalty just two days before Barr’s announcement last week. The tough-on-crime senator of the
1980s and ’90s was instrumental in pushing legislation that expanded federal death sentences — the vast majority of people on federal death row today were
sentenced under the now-notorious 1994 crime bill. The law “caused a cascade of problems that we’re only now reckoning with,” Cohen said. “And we haven’t
reckoned with the death penalty aspects of that set of statutes until now.” If Trump’s opponents are truly sincere about grappling with the federal death penalty,
they can start by confronting the Democrats’ role in building it.

A Cascade of Problems

Just over a month before Barr’s announcement, on June 18, a U.S. District Court judge vacated the federal death sentence of a man named Bruce Webster. One of
five men convicted in the abduction, rape, and murder of a 16-year-old girl named Lisa Rene in Arlington, Texas, Webster had been on federal death row since 1996.
There was evidence from the start that he was less culpable than others involved in the crime — most importantly, IQ tests introduced by his attorneys that
suggested he was “mentally retarded.” But prosecutors accused Webster of faking his answers to escape the death penalty. In 1996, a judge in the Northern District
of Texas sentenced him to die.

Webster would likely not have ended up on federal death row if not for legislation passed just days before his crime. In September 1994, President Bill Clinton
signed the Violent Crime Control and Law Enforcement Act, otherwise known as the
1994 crime bill. The sweeping legislation included the
Federal Death Penalty Act, which vastly expanded federal death sentences. Overnight, 60 new offenses
became punishable by death. Among them were crimes like “kidnapping resulting in death,” one of several felony murder crimes that made it
easier to convict multiple people for one killing. Federal prosecutors initially said they were considering seeking death sentences against all five men. But ultimately,
they would target Webster and his co-defendant Orlando Hall — the “first death penalty case filed under the new crime bill in the nation,” as one U.S. attorney
announced. The three other defendants would plead guilty in exchange for lesser sentences.

Hall was tried first, in 1995. Prosecutors described him as the mastermind, while defense attorneys said he’d never meant to abduct Lisa Rene and that “things got
out of hand, with Bruce Webster in charge.” By contrast, Webster’s attorneys gave no opening statement at trial. Emotions ran high as jurors began deliberating on
his fate in June 1996; newspapers reported that Lisa Rene’s sister had “accidentally” seen “gruesome, poster-sized” images of Rene’s face in court earlier that day,
screaming and having to be helped off the witness stand. The trial judge denied a motion for a mistrial. After 75 minutes, the jury convicted Webster, later
recommending a death sentence.

Six years after Webster was sent to death row, the U.S. Supreme Court issued a landmark ruling, Atkins v. Virginia, which prohibited death sentences for people with
intellectual disabilities. Still, his sentence remained intact. When the Bush administration set an execution date for Webster in 2006, a clemency petition circulated
by Amnesty International detailed the horrific abuse Webster and his siblings experienced at the hands of their father, a common component of death penalty
cases. The treatment included such torture as forcing his children to eat human waste, subjecting them to electrical shocks and burns from a hot iron, and “forced
sex between the children.”

Webster ultimately won a temporary reprieve by joining the ongoing federal lethal injection lawsuit. Then, in 2009, his federal habeas attorneys discovered a slew of
files that had never been released by the state. Among them were records showing that government psychologists had examined Webster in 1993 — a year before
the crime that sent him to die — and concluded that he had an intellectual disability. Other records showed that Webster had taken special education classes,
despite testimony claiming the opposite at trial. But perhaps most unsettling were Social Security forms Webster had filled out to apply for disability benefits. In his
June order overturning Webster’s death sentence, the judge quoted excerpts from the documents. Webster’s answers were “incomprehensible,” he wrote, and
indicative of his “significant limitations” in intellectual and conceptual functioning.

Foster, the Indiana-based attorney, was on Webster’s legal team when the new evidence was found. “When you look at all of these records and when you look at
his application for Social Security — oh my God,” she recalled. Like all attorneys who represent people facing execution, the problem of intellectual disability is one
she has seen repeatedly across the board. But there is an additional problem at the federal level. Whereas
state death penalty convictions
are subject to layers of review, first at the state level and then by the federal courts, federal
convictions only get the latter. Despite the role these courts are supposed to play in theory — and
thanks in part to another sweeping Clinton-era law curtailing federal review — many cases receive little
meaningful scrutiny.
Cohen points out that the U.S. Supreme Court has taken virtually no federal death sentences on direct review. And while in theory, clients are entitled to evidentiary
hearings in the same District Courts where they were convicted — a chance to raise the kinds of violations often found in capital cases, such as ineffective assistance
of counsel — “there are a huge number of guys, including people who are now scheduled for execution, who got no evidentiary hearing.” This was true of Webster
until the new evidence got him back into court. If not for that discovery, Webster may well have been on the list of people facing execution.

Federal Intrusion on State Cases

There is no question that the crime for which Webster was convicted — like those of the five men facing execution dates —
was horrific and disturbing. But neither was there any compelling reason that it had to be handled by
the federal government. A major effect of the 1994 crime bill was to encourage the Department of Justice to
take over cases that could have been prosecuted at the state level . When the federal death penalty
was resurrected in 1988, its scope was ostensibly limited to “drug kingpins” and trafficking-related
crimes. But now practically any murder involving additional felonies is fair game .

As federal prosecutions ramped up in the mid- to late 1990s, evidence of racism became unmistakable. By the time
Timothy McVeigh was executed in 2001, federal death row was made up of 14 black men, three Latinos, and two white people. The population has more than
tripled since then, more than half people of color. According to the Death Penalty Information Center, of the 62 people on federal death row today, 26 are black,
seven are Latino, one is Asian, and one is Native American. In
the 5th Circuit, where Webster was convicted, the problem is especially
stark: Fifteen of the 20 defendants who have received a federal death sentence there have been people
of color.
In a law review article published in 2010, defense attorneys Ben Cohen and Rob Smith revealed one possible explanation for the pronounced racial disparities on
federal death row. Just
as a small number of counties are responsible today for new death sentences at the
state level, federal death sentences quickly became concentrated in a relative handful of federal
jurisdictions. A “disproportionate number of federal death sentences are located in districts where the
decision to prosecute federally transformed the jury pool from predominantly black to predominantly
white,” Cohen and Smith found. This is because most federally prosecuted capital crimes have taken place in locations
largely populated by black residents but surrounded by white-dominated suburbs . “As the jury pools get
whiter, the opportunity for implicit race bias increases (and minority group defendants suffer the consequences).”

In a supposed effort to make death sentences more evenly applied, the

federal government’s intrusion into state cases was
taken to a new level by the Bush administration. Then-Attorney General John Ashcroft, a death penalty true believer,
pursued a deliberate policy of taking over cases in states that did not have capital punishment in place.
In a number of cases, he overruled the decisions of his own U.S. attorneys, overriding plea deals that
had already been worked out.
The first to be targeted by this policy was Lezmond Mitchell, whose execution is scheduled for December 11. Mitchell, who is the only Native American on federal
death row, was convicted in Arizona in 2003 for murdering a 63-year-old woman, Alyce Slim, and her 9-year-old granddaughter, Tiffany, members of the Navajo
Nation. It was a brutal crime; the pair were driving to New Mexico to see a medicine man when they were attacked; their dismembered bodies were later
discovered buried on the reservation. As the Farmington Daily Times reported last week, the Navajo Nation made it clear from the start that it opposed the death
penalty for Mitchell. In one letter to the U.S. attorney for the District of Arizona, the Navajo Nation’s chief justice urged the federal government to reconsider its
punishment. “Capital punishment is a sensitive issue for the Navajo people,” he wrote. “Our laws have never allowed for the death penalty.”

The 9th Circuit Court of Appeals upheld Mitchell’s death sentence in 2015. But in a forceful dissent, the late Judge Stephen Reinhardt decried the decision,
recounting how the U.S. government had forced itself onto the case. For one, because the murder alone was not punishable by death under tribal law, seeking the
death penalty was “possible only by virtue of the fact that Mitchell and a fellow Navajo, aged 16, stole a car in connection with the murders they committed,” he
wrote. The Anti Car Theft Act of 1992 had made carjacking a federal crime — and the 1994 crime bill had made carjacking resulting in death a crime punishable by
death. “In the absence of the carjacking, Mitchell would not have been eligible for the death penalty.”

“Equally important,” Reinhardt went on, “none of the people closely connected to the case wanted Mitchell to be subjected to the death penalty: not the victims’
family, not the Navajo Nation — of which the victims and perpetrators were all members and on whose land the crime occurred — and not the United States
attorney whose job it was to prosecute Mitchell.” The U.S. attorney at the time, a Bush appointee named Paul Charlton, had declined to seek the death penalty in
light of the opposition expressed by the Navajo Nation and the victims’ relatives. But “in the words of the victims’ family,” Reinhardt wrote, “the request that the
federal government not seek the death penalty was ultimately ‘ignored and dishonored.’ Attorney General John Ashcroft overruled Charlton and forced a capital
prosecution.”

Charlton would be overruled on the death penalty again, this time by Alberto Gonzales, and later lose his job — one of nine prosecutors ultimately purged by the
Bush Justice Department in what became known as the U.S. attorneys scandal. (Another fired U.S. attorney, Margaret Chiara of Michigan — a state that abolished
the death penalty in 1963 — had also clashed with the Justice Department over the issue.) The role of the death penalty was largely lost in the controversy, in part
because Democratic politicians who vocally criticized the U.S. attorney purge had little to say about the Bush Justice Department’s strong-arming prosecutors to
bring the death penalty to their states.

The politicization of the Bush Justice Department has long been eclipsed by the larger crisis of Trump’s
flagrant lawlessness. But his administration has continued the tradition, seeking death sentences in states
like Illinois, which abolished the death penalty years ago over concerns about wrongful convictions. “Since Trump took

office, those of us in the capital-defense community have seen a sharp spike in capital prosecutions of
state crimes by the federal government,” veteran capital defense attorney Andrea Lyon recently wrote. As men like Mitchell approach their
execution dates, it bears remembering that the death penalty has long been weaponized — by presidents, politicians of
both parties, and prosecutors who speak for victims even when grieving families ask that it not be used
in their name. Barr may claim that “we owe it to the victims and their families” to restart federal executions this winter, but he has already proven that his
only real loyalty is to Trump himself.

Independently, some states will continue killing themselves unless they are forced to
stop by the federal government
NYT, 17 (12/31/17, The Editorial Board, “Capital Punishment Deserves a Quick Death,”
https://www.nytimes.com/2017/12/31/opinion/capital-punishment-death-penalty.html?_r=0, accessed
on 4/2/20, JMP)

Leaving it up to individual states is not the solution. It’s true that 19 states and the District of Columbia
have already banned capital punishment, four have suspended it and eight others haven’t executed
anyone in more than a decade. Some particularly awful state policies have also been eliminated in the
past couple of years, like a Florida law that permitted non-unanimous juries to impose death sentences,
and an Alabama rule empowering judges to override a jury’s vote for life, even a unanimous one, and
impose death.

And yet at the same time, states have passed laws intended to speed up the capital appeals process,
despite the growing evidence of legal errors and prosecutorial misconduct that can be hidden for years
or longer. Other states have gone to great lengths to hide their lethal-injection protocols from public
scrutiny, even as executions with untested drugs have gone awry and pharmaceutical companies have
objected to the use of their products to kill people.

Last summer, Justice Ruth Bader Ginsburg suggested that the death penalty would eventually end with a
whimper. “The incidence of capital punishment has gone down, down, down so that now, I think, there
are only three states that actually administer the death penalty,” Justice Ginsburg said at a law school
event. “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

That’s a dispiriting take. The death penalty holdouts may be few and far between, but they are fiercely
committed, and they won’t stop killing people unless they’re forced to. Relying on the vague idea of
attrition absolves the court of its responsibility to be the ultimate arbiter and guardian of the
Constitution — and specifically of the Eighth Amendment. The court has already relied on that
provision to ban the execution of juvenile offenders, the intellectually disabled and those convicted of
crimes against people other than murder.

There’s no reason not to take the final step. The justices have all the information they need right now to
bring America in line with most of the rest of the world and end the death penalty for good.

The death penalty should be abolished for many reasons ---

First, it is racist, state sanctioned murder --- the arguments in support all suffer from
fundamental flaws
Coard, 16 --- criminal defense attorney (Michael, “Death penalty: State-sanctioned murder,”
https://www.phillytrib.com/commentary/death-penalty-state-sanctioned-murder/article_9ae8ab3b-
1c63-50c3-b03f-9286130b630c.html, accessed on 4/1/2020, JMP) ***italics in original

Since the death penalty was reinstated in 1976 as a result of the U.S. Supreme Court’s Gregg v. Georgia
ruling, 1,429 persons have been executed. Although African-Americans constitute only 13 percent of
America’s population, they constitute 35 percent of those sentenced to death and killed, totaling 494.

By the way, of those 1,429 persons, 327 involved Blacks who had been convicted of murdering whites or
whites who had been convicted of murdering Blacks. And guess what? Only 31 of the white defendants
were executed, while 296 of the Blacks were. And strong evidence indicates that not all of those Blacks
had committed those murders. That and several other reasons are why I call the death penalty “state-
sanctioned murder.”

Those who support the death penalty argue that it’s a deterrent, that it’s reasonable retribution, that
certain killers deserve it, that it’s religiously mandated, that it’s the law, that it has procedural
safeguards, and that it’s founded on the fair notion of “an eye for an eye.” Here are the reasons I reject
all of that.

If it’s based on deterrence, why is it that the South, which has the highest murder rate in the country,
also has the most death penalty executions at 80 percent , while the Northeast has the lowest murder
rate but only one percent of the executions? And why do nearly 90 percent of past and current
presidents of the country’s leading criminal law academic societies agree that it’s not a deterrent.

If it’s reasonable retribution, why do many, if not most, of the proponents constantly scream for
revenge? Furthermore, aren’t we- i.e., the civilized members of society- better than the sociopathic
killers who kill to get their way? And isn’t the notion of killing killers to show that killing is wrong rather
hypocritical?

If certain killers deserve it, why don’t all of those “certain” killers get it? Consider this: a person could
commit a single capital-type murder in one of the 31 states that has the death penalty and he or she
would be executed. But another person (or that same person) could commit ten capital-type murders in
one of the 19 states that does not have the death penalty and he or she could not be executed.

If it’s religiously mandated (at least by the three faiths with the most adherents), how does a proponent
justify the destruction of what God, Allah, Jehovah, etc. created? In other words, since we as humans
can only procreate- and not create- how can the killing of the Creator’s creation be justified, especially in
light of the fact that such killing is not the result of the sort of on-the-spot deadly self-defense that is
necessary in response to an imminent threat? And because the death penalty is not the result of such
immediate self-defense, isn’t an execution sinful for believers and unethical or immoral for non-
believers?

If it’s the law, wasn’t slavery and Jim Crow the law? And wasn’t the execution of kids the law until
2005 when the U.S. Supreme Court finally outlawed it? Moreover, wasn’t the execution of 22 persons
since 1976 for crimes they committed as children the law?
If there are procedural safeguards, why is it that since 1973, a total of 156 factually innocent persons
(including six in Pennsylvania) were arrested, charged, tried, found guilty, and sentenced to death with
those sentences upheld many times on appeal? Why was it necessary for zealous and persistent
defense attorneys- over the strenuous and repeated objections of the prosecutors- to fight nonstop to
finally persuade some judges to reverse those sentences shortly before the scheduled executions? And
during those attempts to persuade those judges, innocent men and women had spent decades in the
living hell known as death row. What if those defense lawyers had not been so zealous? What if they
had not been so persistent?

By the way, do the proponents deny the racism and the classism of capital punishment? If so, how do
they explain the fact that 98 percent of the chief District Attorneys in death penalty states are white and
only one percent Black? And why is it that while the poor constitute more than 15 percent of the
country’s population, they are about 90 percent of the death row population?

Finally, if it’s founded on the fair notion of “an eye for an eye,” which means we kill killers, then why
don’t we rob robbers or kidnap kidnappers? Even better, why don’t we rape rapists? Yeah, that’s it. In
the very same way our tax dollars are used to pay a state employee to kill a convicted killer through
lethal injection, why don’t we hire and pay a state employee to rape a convicted rapist through sexual
penetration? Savage, you say? Barbaric, you say? Uncivilized, you say? Exactly, I say- just as savage and
as barbaric and as uncivilized as the death penalty.

Oh, I almost failed to mention why I call capital punishment “state sanctioned murder.’ Well, a governor
approves it, so it’s state action. And murder is defined as a premeditated (i.e., planned) and unjustified
(i.e., done in the absence of an imminent threat to life or limb) killing, especially when a deadly weapon
(i.e., lethal injection or electric chair or gas chamber or hangman’s noose or firing squad) is used. Since
the public is not legally permitted to murder, neither should the state governments be permitted to
do so.

Second, capital charges, death sentences and executions are all inherently torturous
--- the prohibition against torture should be absolute AND no circumstance can be
used to justify it
Bessler, 19 --- Associate Professor, University of Baltimore School of Law (Winter 2019, John D.,
“Torture and Trauma: Why the Death Penalty Is Wrong and Should Be Strictly Prohibited by American
and International Law,” 58 Washburn L.J. 1, Nexis Uni via Umich Libraries, JMP)

IV. Conclusion

The concepts of torture and trauma are distinct from one another, but an examination of both concepts
makes clear that capital charges, death sentences, and executions inflict severe trauma and bear the
clear indicia of torture. The process of state-sanctioned killing adversely affects a wide variety of
individuals and, as an inherently torturous activity, constitutes an affront to human dignity and the
right to be free from torture and cruelty. 534 Not only are capital defendants and death row inmates
subjected to continuous and, ultimately, imminent threats of death (and, for some, death itself), 535
but capital [*98] litigation also affect judges and jurors, prosecutors and defense lawyers, crime victims'
families, and the loved ones of capital defendants. 536 Because credible threats of death are torturous
in nature, they should not be allowed; death sentences, at bottom, are death threats - only they are
made by state actors instead of private actors. 537 A death sentence, whatever the impulse beyond it,
Christopher Hitchens once emphasized, writing in the foreword to Machinery of Death: The Reality of
America's Death Penalty Regime, "mutates into a protracted, depressing, degrading torture." 538 If war
or the threat of war cannot justify military commanders resorting to torturous practices, 539 then
surely legislators, judges, and juries should not be permitted to authorize or make use of torturous
death sentences and executions either.

America and the rest of the civilized world have already renounced torture, declaring that the
prohibition against torture is absolute. Indeed, under international law, no circumstance - no public
emergency or other event - can be used to justify torture. 540 Torture is a deliberate and intentional
act, and when it is used, it is the torturer - not the object of the torture - who is morally responsible for
it. Whereas the crimes of heinous killers and other offenders are reprehensible and cannot be undone,
the State's response to such crimes is always a conscious choice. The State has a duty and an
indispensable obligation to keep the public safe, and the State has a right to punish - and to incarcerate
offenders - to carry out that very legitimate governmental objective. But the State crosses a line when it
veers into the realm of torturous conduct - government action that strips offenders of their humanity;
that traumatizes, stigmatizes, and tortures; 541 and that, plainly put, reflects poorly [*99] on the
societies that authorize it and the State officials who carry it out. 542 Because the death penalty is not
necessary, 543 especially in this, the twenty-first century, 544 and because it has the immutable
characteristics of torture, it must be rejected in all its forms.

Although American and international law both contain "lawful sanctions" carve-outs to torture, the bar
on torture is intended to be a universal one. 545 If [*100] America and the world are truly serious
about the idea that certain rights, such as the rights to be free from cruelty and torture, are universal
rights, then even those who have committed heinous acts must not be subjected to acts of torture,
whether physical or mental. In fact, any practice that bears all the indicia of torture should not be
permitted under any circumstances. The fact that a punishment has, through time, been considered a
"lawful sanction," should not insulate that punishment from scrutiny for all time. That would be an
absurd result, and it would fly in the face of Enlightenment thought, which focused on human progress,
whether in science, medicine, or law. Indeed, a number of now-abandoned punishments that were once
lawful - from the pillory and the whipping post to ducking and ear cropping - are no longer tolerated in
modern life. 546 If a country that has committed itself to eliminating torture is allowed to continue to
use a torturous practice under the guise of the "lawful sanctions" classification, then whatever a country
says is lawful - no matter how torturous in nature - would be, effectively, immune from scrutiny. Such an
approach would render a country's international obligations - and its public commitments to end torture
- a nullity. 547

The death penalty has, for centuries, been authorized and inflicted by various governments around the
world under the auspices of being a legitimate tool. 548 But since the Enlightenment, 549 and especially
since the end of World War II and the promulgation of the Universal Declaration of Human Rights,
civilized societies have turned away from capital punishment and recognized that some rights are
universal in nature. 550 In this, the twenty-first century, especially in light of everything that is known
now about the punishment of death and its effects, 551 death sentences and executions should
consequently be [*101] declared unlawful, strictly forbidden under American 552 and international
law, 553 and classified as torture. 554 Just as various non-lethal punishments have passed from the
scene, 555 capital punishment should also be relegated to the history books. 556 Torture is wrong, and
because the death penalty and the process by which it is administered bear all the characteristics of
torture, 557 the use of capital punishment is just as wrong and morally reprehensible. 558

Third, it dehumanizes and is fundamentally incompatible with a genuine respect for

human dignity
Bessler, 19 --- Associate Professor at University of Baltimore School of Law (Summer 2019, John D.,
“Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the
Collateral Consequences for Capital Punishment,” 11 Ne. U.L. Rev. 1, Nexis Uni via Umich Libraries, JMP)

C. The Importance of Human Dignity

Not only are death threats torturous in nature, but they are unnecessary 264 and utterly inconsistent
with the right to life 265 and [*61] the notion of human dignity. 266 Human dignity has long been
called the "touchstone" of the U.S. Constitution's Eighth Amendment, 267 and dignity is also a central
value of international law. As the U.N. Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment puts it:

[*62] Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to
human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations
and as a violation of the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights. 268

In Brown v. Plata, 269 the U.S. Supreme Court itself made clear that offenders do not lose their right to
human dignity by virtue of their incarceration. As Justice Anthony Kennedy wrote for the Supreme Court
in that case: "To incarcerate, society takes from prisoners the means to provide for their own needs.
Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to
provide sustenance for inmates 'may actually produce physical 'torture or a lingering death.'" 270 "A
prison that deprives prisoners of basic sustenance, including adequate medical care," Justice Kennedy
emphasized, "is incompatible with the concept of human dignity and has no place in civilized society."
271 In a world of universal human rights, inmates and even heinous offenders, just like everyone else,
have a right to be free from torture and from cruel, inhuman, or degrading treatment. 272

[*63] Death sentences and execution protocols, like other acts of torture, dehumanize individuals and
strip offenders of their humanity, however tarnished by whatever crimes they have committed in the
past. 273 The Convention Against Torture plainly requires that nations prevent and criminalize torture,
274 envisioning the elimination of torturous punishments in accordance with the dictates of that
convention and the humanitarian impulses [*64] behind it. 275 In Kennedy v. Louisiana, 276 the U.S.
Supreme Court, in considering an Eighth Amendment case, forthrightly proclaimed: "Evolving standards
of decency must embrace and express respect for the dignity of the person, and the punishment of
criminals must conform to that rule." 277 "When the law punishes by death," Justice Anthony Kennedy
wrote for the Court, "it risks its own sudden descent into brutality." 278 In declaring the use of the
electric chair to be unconstitutional, the Nebraska Supreme Court said something quite similar, with that
court writing in 2008: "We recognize the temptation to make the prisoner suffer, just as the prisoner
made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty
without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes."
279

The death penalty is unacceptable in all instances because every human life has value
--- death is irreversible and steals the opportunity for improving
Davis, 19 --- policy analyst at Libertas Institute (7/29/19, Molly, “Don’t Strengthen The Death Penalty,
Abolish It; In a criminal justice system subject to human error, capital punishment is the opposite of
justice. The government must protect the most sacred right: life,”
https://thefederalist.com/2019/07/29/dont-strengthen-death-penalty-abolish/, accessed on 3/11/20,
JMP+DYang)

The U.S. government will officially resume executions of federal death row inmates this December. This
comes after Attorney General William Barr directed the Federal Bureau of Prisons to adopt an
addendum to the Federal Execution Protocol that allows it to move forward with capital punishment in
order to bring “justice to victims of the most horrific crimes.”

Execution never results in justice. It may feel good to sentence the worst of society’s criminals to death,
but this will never right the wrongs of the crimes those convicted people have committed. Not only is
it a barbaric mechanism for a modern government to use, but it is used in a wholly imperfect justice
system, prone to human error. The justice system lacks the capability to correctly identify perpetrators
with 100 percent accuracy. These downfalls are enough to repeal the death penalty entirely.

Death Row Inmates Have Been Exonerated

A perfect criminal justice system does not exist and probably never will. And with human life on the
line, the government can no longer risk executing the wrong person in the name of justice — it’s far
too dangerous.

It’s easy to believe that everyone convicted of a crime must be guilty, but it simply isn’t true. Since 1973,
the government has exonerated all charges from 166 death row inmates. All of those people could have
been wrongfully killed for crimes they did not commit. There could be more. Organizations such as
Innocence Project work to free innocent people from wrongful incarceration, and despite the group’s
success in freeing 365 people to date, its caseload isn’t getting any smaller.

Wrongful convictions happen due to a number of factors, many of which are honest human mistakes.
The single nationwide leading cause, for example, is eyewitness misidentification. This is due to human
memory errors, which lapse and misremember important details about events.

Other contributing factors, according to the University of Michigan Law School, include junk science,
false confessions, government misconduct, faulty snitches, and bad lawyering. No person is immune
from fallibility. These errors have forced hundreds of people into wrongful imprisonment, and it could
happen to anyone, even you.

10 Guilty Should Go Free Rather Than 1 Unjustly Killed

The government claims to prioritize protecting the safety of our great nation above all else, yet it
doesn’t value its own citizens enough to protect them from the potential errors of the justice system .
As egregious as wrongful incarceration is, at least a wrongfully imprisoned person has the potential to
be set free. The government has a chance to learn from the mistakes and, in some states, pay
compensation to the wrongfully convicted. But death steals that opportunity, ridding these people of
their constitutional right to due process.

The basis of human life is enough of an argument to repeal the death penalty
nationally and in every state. Would it not be better to have 10 guilty people spend life in
prison than accidentally end one innocent life?

Morally, this makes sense. But it’s better financially as well. Numerous studies conclude that pursuing
capital punishment is more costly than the alternative sentence of life in prison. This means states that
choose to pursue the safer option by abolishing the death penalty are also on track to save money in the
long run, a win-win situation for both government and citizens.

It’s easy to look at the national death penalty cases before us — five inmates convicted by the courts on
terrible charges involving rapes and murders of innocent children — and make a quick and vindictive
judgment about how they deserve to die. But you cannot teach a society that killing is
wrong by killing. The taking of another life can never demonstrate justice — only vengeance,
disgracefully disguised as justice.

It’s Tyranny for Government to End a Life

Allowing the government to decide when to end a person’s life based on the
criminal laws it writes is one of the most tyrannical powers a society can grant a
central authority. And keeping the death penalty as a legitimate and lawful form
of punishment leaves the door open for politicians to more easily apply it as a
penalty for other crimes in the future, beyond the current offenses for which it
is used. This is alarming, as government power only continues to grow, and even recent history
demonstrates that power can easily shift from one party to another with the changing of years.

In prisons, staff must abide by a number of legal standards to uphold the health and safety of every
inmate, regardless of the crimes committed. These standards are in place because Western societies
have generally agreed torturing citizens is wrong, and taking away people’s basic rights while under the
state’s care is inhumane. Why, then, is it justified to take away the right to life, the most sacred right?
Anyone who believes in personal liberty should oppose capital punishment.

By clearing the way for capital punishment to proceed, the federal government has declared that
vengeance is more important than the safety of its citizens. It should instead recognize that
every human life is valuable, and risking even one potentially innocent person’s
life is not worth the retribution some believe the death penalty provides .
Our actions demonstrate who we are and being human entails responsibility toward
our fellow beings. The death penalty is a morally wrong collective behavior that makes
us all accessories to murder and ensures cycles of violence
Worden, 19 --- executive director of the American Ethical Union, a national organization devoted to
ethics and social justice, clergy leader of the Ethical Culture Society of Westchester (8/6/19, Bart, “The
Humanist case for abolishing the death penalty,” https://thehill.com/opinion/criminal-justice/456291-
the-humanist-case-for-abolishing-the-death-penalty, accessed on 3/11/2020, JMP)

An actor friend of mine was distressed when she noticed a saying on a plaque on our living room wall. It
read, “What one does, one becomes.” She was troubled because, as an actor, she had been called to
portray all sorts of characters. She hated the thought that she was somehow becoming like them. For
me, the saying was a reminder that actions speak louder than words and that it is by our actions that
we demonstrate who we truly are. It’s a reminder, too, that our experiences — for better and for worse
— become us in deep and abiding ways.

It’s important to ask ourselves how a behavior will affect our lives and the lives of others. Will it lead to
greater understanding and meaningfulness, or will it constrict us and cut us off from one another?
Capital punishment is a case in point.

On July 25, Attorney General William Barr directed the Federal Bureau of Prisons to adopt a proposed
Addendum to the Federal Execution Protocol which clears the way for the federal government to
resume capital punishment after a nearly two-decade moratorium. The press release stated that “the
Justice Department upholds the rule of law — and we owe it to the victims and their families to carry
forward the sentence imposed by our justice system.”

For Barr, killing perpetrators is a means to appease the feelings of those who have been victims of
heinous crimes and that alone justifies the killings. The proposed amendment, however, does not
address the many dire consequences of capital punishment.

Those reasons have been well-documented.

Since 1973, more than 160 people who have been sentenced to death have been exonerated, according
to the Death Penalty Information Center.

In 2018, the Washington State Supreme Court unanimously struck down the state’s death penalty as
unconstitutional and “racially biased.”

As the clergy leader of the Ethical Culture Society of Westchester and a devout Humanist, however, I’d
take it a step further. Even if these factors no longer held true, capital punishment would be morally
wrong. If only those who were put to death professed their guilt, agreed that capital punishment was
the correct punishment, and agreed to forgo appeals and challenges to speed the process it would still
be morally wrong.

To be sure, some of the prisoners on death row are perpetrators of hideous and unforgivable crimes.
Dylan Roof is one such prisoner, and the families of the victims he murdered in South Carolina deserve
justice. Yet even if proponents of capital punishment acknowledge killing a murderer like Dylan Roof
won’t bring their loved ones back, we must also consider the human cost of the death penalty — both
for its victims and those who carry out the deed.
The experiences of people who participated in killing inmates convicted of capital offenses should tell us
a great deal about the effect of state ordered killing upon those who must carry out the sentence. As a
resident of Ossining, New York, my home is just 2½ miles away from the Sing Sing Correctional Facility,
where 614 people were electrocuted. The State of New York employed executioners who connected the
killing apparatus to inmates and flipped the switch that sent the electricity through the inmate’s body.
There were five “New York State Electricians” between 1890 and 1972: Edwin Davis, John Hurlburt,
Robert G. Elliott, Joseph Francel, and Dow B. Hover. None of them fully approved of capital punishment,
two committed suicide. Elliott died of natural causes but was vocal in his opposition to capital
punishment, writing: “I hope that the day is not far distant when legal slaying, whether by electrocution,
hanging, lethal gas, or any other method is outlawed throughout the United States.”

As a Humanist, I expect that the life we are living is the only one we will experience so it’s important to
make the most of the opportunity and important to protect that. We also believe that being human
entails responsibility toward our fellow beings and that we demonstrate our humanity through our
behavior toward one another.

Capital punishment is an example of morally wrong collective behavior. Putting someone to death
forces society to make someone a premeditated killer of another human being and makes the rest of
society accessories to wrongful acts. It is a wrong on top of a wrong that, far from cancelling out the
injury, ensures the cycles of violence and retribution will be continued .

Prioritize ethics --- the institutional violence and moral disengagement at the heart of

the death penalty is the same that facilitates genocide and cleansing the world of
those deemed unsafe
Johnson 18 --- professor of justice, law and criminology at American University (Robert, Condemned
to Die: Life Under Sentence of Death, ebook from University of Michigan, pg.123-125, JMP)

Conditions that foster institutional violence operate with particular salience and impact on death row.
Correctional personnel responsible for death row are explicitly and unambiguously authorized by laws
and policies they respect to warehouse prisoners awaiting execution as a punishment for serious crimes.
Guards and their superiors can readily view themselves as impersonal instruments of an authority, in
this case, the law, to which they are committed agents; as such, they bear no individual moral
responsibility for the actions necessary to maintain an orderly death row or for the executions that may
take place under their auspices. These actions, in the eyes of the officers, are virtuous because they are
just and deserved, given the enormity of capital crimes. As many officers contend, the condemned
prisoner condemned himself by his actions; the officers thus are passive players in the deadly process of
execution. And since routine is almost blindly relied upon to structure each day, and especially each
execution day, correctional personnel come to normalize the daily round of life on death row, and hence
are further removed from the human consequences of the policies they implement. Indeed, this
preoccupation with routine stimulates enthusiasm to achieve technical proficiency at the various tasks
attendant to death work and discourages more thoughtful examination of the nature and import of
these activities. Finally, death row inmates are effectively isolated from one another and the larger
world, and hence are denied the personal and group support necessary to retain their autonomy in the
face of overwhelming authority, a suffocating routine, and a degrading existence. Thus, their
dehumanization emerges as the culmination of instruments of authority acting within stipulated
routines on condemned prisoners rendered as dehumanized entities to be stored and ultimately
dispatched in the execution chamber in service of law and, no doubt, justice.102

***start of footnote #102***

102 In making these assertions, I am drawing on a large body of research and theory. For a general
review of these materials, see Johnson (1986) and Haritos-Fatouros (2003). There are lively debates in
the area of institutional violence. Broadly speaking, one school of thought focuses on how one’s
conscience must be neutralized in order to carry out violence against a person who poses no immediate
threat to one’s welfare. Moral disengagement and objectification of others are key considerations. This
view, perhaps best exemplified in the work of Milgram (1963); Bandura, Ross, and Ross (1961); and
Haney and Zimbardo (1998), separates objectification from dehumanization. See Bandura (1999) for a
comprehensive review. Other scholars, like Haslam (2006), Bastian and Haslam (2010), and Haslam and
Loughnan (2014), think of objectification as a species of dehumanization, which includes seeing the
person as an object, or animal, or morally degraded creature outside the normal moral discourse or
social community. Rafter (2016: 2215), in her seminal research on genocide, exemplifies the view that
one’s conscience must be neutralized to allow for the atrocities that are part and parcel of genocide:

My answer to the “How could they do it?” question runs as follows: psychological mechanisms
involved in moral disengagement lead to a temporary and selective shutdown in empathy and
identification with others; and that shutdown leads to the objectification that enables
individuals to commit genocide. This is the splitting process. First comes moral disengagement,
then neutralization of empathy, and finally the objectification that makes victims seem like
objects, things we can get rid of rather than individuals like ourselves.

Other scholars, like Fiske and Rai (2015) focus on institutional violence as an example of virtuous
violence, which it to say, violence of which one should be proud, not ashamed. The challenge here is to
neutralize repugnance to the often gory physical act of violence; the motivation to engage in violence is
a largely settled matter. In the case of virtuous violence, persons believe they are doing good and feel
obligated to carry out acts of violence. The agents of virtuous violence are committed followers of
beliefs that justify the violence in which they engage. This does not mean that virtuous violence is easy.
It isn’t. Agents who inflict virtuous violence will likely be repelled by the acts of violence themselves,
which often involve victims who beg, plead, collapse, or react with eerie stolidity or unseemly emotion
when brutal pain is inflicted upon them. These reactions can be construed to validate the degraded
status of the victims, but reactions to violence among victims are tangibly visible human reactions. It is
one thing to embrace and, in one’s work, validate an abstract belief and another to carry out a concrete
act in violation of a flesh-and-blood individual. We are socialized to abhor violence and most of us do.
Paradoxically, rising to the occasion to inflict virtuous violence can be one measure of commitment of
the person carrying out such violence. Fiske and Rai (2015: 515) write: “Now, for the most part, people
hate hurting others. It is extremely distressing to directly kill or injure another person face-to-face, no
matter how socioculturally justified or legally obligatory it is . . . Like many other moral acts, killing or
hurting others can be difficult, requiring training, social support and modeling, effort, practice, and
experience before it becomes second nature. Few people become unambivalently dedicated to moral
violence or do it easily, but that is true of many difficult moral practices other than violence—people
often resist or fail to do what is morally required of them, even when they have no doubt about whether
they should do it.”

There is overlap in these perspectives. Whether one is a passively or reluctantly obedient participant or
an actively engaged agent of violence, support for one’s violence is helpful. This support may come from
peers or authority figures or organizational structures. Authorizations from organizations to engage in
violence, especially when embraced by one’s peers, give permission and hence a degree of reassurance
that one is in the right when one is called upon to use violence. Training and institutional routines can
make violence more palatable, whether one thinks of the violence as virtuous or as a repugnant but
necessary evil. Dehumanization—socialization or training that allows actors to see the target of
violence as an object, animal, or morally degraded creature—can create a motive for violence
(protection from dangerous, animal-like others) or can smooth the way to work in service of what one
takes to be virtuous beliefs (cleansing the world of others who would contaminate it or make others
unsafe). Persons who are ridding the world of dangerous and unregenerate criminals in service of legal
and other institutions they trust presumably need less to mute their conscience than they would under
other circumstances. None of the execution team officers I interviewed expressed guilt, remorse, or
regret, at least before, during, or after the executions they conducted and that I studied firsthand
(Johnson, 1998). Socialization and training of persons engaged in institutional violence is meant to
indoctrinate them in the value of what they do. To the degree persons have doubts about the virtue of
the enterprise, some degree of neutralization of conscience may be sought by the individual or
promoted by the organization.

***end of footnote #102***

Persons engaged in executions are strongly disposed to treat the condemned as dead or dying—as the
living death suffered by death row prisoners so vividly attests. Albert Camus may thus have been correct
when he maintained that capital punishment killed the offender twice: once on death row while
awaiting execution and once again in the death chamber. This punishment is excessive, even by the
hard reckoning of the person who demands the life of the murderer in return for the life of the victim.
Quoting Camus on this point:

As a general rule, a man is undone by waiting for capital punishment well before he dies. Two
deaths are inflicted on him, the first being worse than the second, whereas he killed but once.
Compared to such torture, the penalty of retaliation seems like a civilized law. It never claimed
that the man who gouged out one of his brother’s eyes should be totally blinded.103

It could be argued, of course, that some murderers cold-bloodedly claim multiple victims or torture their
victims, and thus deserve the additional suffering inflicted by death row confinement. Experience with
capital punishment laws indicates that it would be impossible to reliably identify such persons; terms
like “heinous” or “atrocious” are liberally construed by judges and juries, and hardened offenders are
frequently wise enough to plea bargain and thus obtain prison terms instead of death sentences.
Moreover, the closer one gets to murderers whose acts approach the unemotional calculation of state-
sanctioned killing, the more likely it is that serious mental health problems are indicated. Capital
punishment is then inapplicable because the subject of punishment must freely choose his crime and
hence deserve his punishment, and the mentally impaired offender cannot rightly be said to exercise
free choice. It is doubtful, in any event, that the state should seek to imitate the cruelty of some
criminals in order to afford them justice.
The suffering of prisoners on death row has significant implications for the justice of the death penalty.
As a practical matter, the administration of capital punishment involves torture; any justification of
capital punishment must therefore include a justification for torturing capital offenders, not simply
taking their lives. It is difficult to envision any such justification. Certainly none is provided in the
voluminous philosophical or legal literatures on punishment or in the U.S. Constitution, which
expressly forbids the use of torture under the Eighth Amendment ban against cruel and unusual
punishments. Even the philosopher Immanuel Kant, for whom only capital punishment would “satisfy
the requirements of legal justice” in the case of murder, acknowledged that, to be just, “the death of the
criminal must be kept entirely free of any maltreatment that would make an abomination of the
humanity residing in the person suffering it.”104 The abomination of the prisoner’s humanity, we now
know, is part and parcel of the culture of harm that flowers with special vigor in isolated prison housing
units like death row and is central to the dread evoked by the threat of execution; an execution that, as
a seen by condemned prisoners, amounts to an impersonal state-sanctioned homicide.105 The
destructive personal impact of death row confinement in service of executions provides the basis for a
complete moral argument in opposition to capital punishment.

It is my contention that no reform—however well intended, from housing condemned prisoners in

regular maximum-security prisons (which often feature their own distinctive brutality) to reducing the
rigors of death row in ways we have discussed in this book—can change the fundamental realities of
the confining-and-killing process as they unfold in our prisons. Reforms matter, particularly to the
condemned prisoners, but cruelty endures. Jamie Fellner, noted human rights authority, captured this
point well:

Even if those condemned to die have the same conditions of confinement as other prisoners
(conditions that can be appalling in any event) or even if they are confined in “kinder, gentler”
death rows, the cruelty of awaiting execution would remain. I see no way around the
conundrum— being condemned by a court to die means being condemned to a painful period
of waiting. From a human rights perspective, both are intolerable. 106

The key and enduring point, Fellner argues, is this: “from a human rights perspective” both the penalty
of death and the waiting in confinement under the threat of death are “intolerable.”107 Is solitary
confinement under sentence of death uniquely cruel? Yes. Extensive social science research proves this
point, a point developed at length in this book.108 Is regular prison confinement generally less cruel
than solitary confinement? Yes, but regular confinement, given all we know about the warehousing
dynamics of prisons, is cruel as well. Is a “kinder, gentler” death row, such as embodied in the reform
suggestions made in this book, likely to be less cruel than solitary confinement under sentence of death?
Yes, but reformed death rows, given all we know about the distinctive dynamics of life under sentence
of death—with the feelings of abandonment, vulnerability, and emotional emptiness that ensue—are
still cruel.109 With the death penalty, cruelty endures. Degrees of cruelty matter greatly to condemned
prisoners, I want to reiterate. But from a moral and legal perspective, the essential point made by
Fellner is that, even in the best of conditions available in the real world of modern prisons, “the cruelty
of awaiting execution would remain.”110
A respect for human dignity is necessary to sustain the essential meaning of being
human --- without it tyranny, war and ecological collapse are inevitable
Weiwei, 19 --- leading contemporary artist, activist and advocate of political reform in China
(1/1/2019, Ai, “Human dignity is in danger. In 2019 we must stand as one to survive,”
https://www.theguardian.com/commentisfree/2019/jan/01/human-dignity-danger-ai-weiwei, accessed
on 5/1/2020, JMP)

What does it mean to be human? That question sits at the core of human rights. To be human has
specific implications: human self-awareness and the actions taken to uphold human dignity – these are
what gives the concept of humanity a special meaning.

Human self-awareness and human actions determine the interplay between individual thought and
language and the wider society. It is our actions as humans that deliver economic security, the right to
education, the right to free association and free expression; and which create the conditions for
protecting expression and encouraging bold thinking. When we abandon efforts to uphold human
dignity, we forfeit the essential meaning of being human, and when we waver in our commitment to
the idea of human rights, we abandon our moral principles. What follows is duplicity and folly,
corruption and tyranny, and the endless stream of humanitarian crises that we see in the world today.

More than two centuries have passed since the concept of human rights was first developed. During
that time humanity has gone through various stages of history and the world has seen enormous
changes. In Europe, what was once a collection of colonialist, autocratic states has transformed into a
democratic society with a capitalist orientation, establishing a mechanism that protects individual rights.
Other societies are also seeing structural changes, and the concept of human rights is facing grave
challenges.

In part these challenges stem from the disparate demands of countries in different stages of
development, with contrasting economic situations and competing interests. But challenges also come
from divergent conceptions and understandings of human rights, human dignity, morality and
responsibility, and from different interpretations and applications of the core principles of human rights.
In the contemporary world, as our grasp of the fundamental values and principles of human rights and
humanitarianism weakens, we risk losing our rights, responsibilities and our power to uphold human
dignity.

History shows that a moral failure is always accompanied by painful realities, visible everywhere. The
global refugee crisis is worsening daily, and 70 million refugees have been forced to leave their homes
by war and poverty. Our living environment is constantly being degraded, and the ecological balance is
ever more fragile. Armed conflicts persist and potential political crises lurk; regional instabilities grow
more acute; autocratic regimes brutally impose their will, while democratic governance is in decline.
Unreasoning and unrestrained expansion under a nationalist, capitalist order is exacerbating the global
gap between rich and poor. Our views of the world have become more divided and more conflicted than
ever.

Individuals in many countries and regions lack the opportunity to receive an education, to access
information or communicate freely. They have no chance to exercise their imagination and creativity or
fulfil their ideals; no chance to enjoy freedom of belief and freedom of association. Such rights and
freedoms pose a fatal threat to autocracy and authoritarianism. This is why, in so many places, lawyers
have been imprisoned, journalists have been disappeared and murdered, why censorship has become so
pervasive, why religious and non-governmental organisations have been ruthlessly suppressed. Today,
dictatorships and corrupt regimes continue to benefit from reckless arms sales, and enjoy the quiet
support of capitalist nations. Religious divisions, ethnic contradictions and regional disputes all feed into
primitive power plays. Their logic is simple: to weaken individual freedoms and strengthen the controls
imposed by governments and dominant elites.

The end result is that individuals are deprived of the right to live, denied freedom from fear, and
freedom of expression, or denied the rights to maintain their living environment and develop.

The concept of human rights needs to be revised. Discussions of human rights used to focus on the one-
dimensional relationship between the state’s rights and individual rights, but now human rights involve
a variety of relationships. Today, whether demands are framed in terms of the rights of the individual or
the goals pursued by political entities and interest groups, none of these agendas exists in isolation.
Historically, the conditions governing human existence have never been more globally interdependent.

The right of children to grow up and be educated, the right of women to receive protection, the right to
conserve nature, the right to survival of other lives intimately connected with the survival of the human
race – all these have now become major elements in the concept of human rights. As science and
technology develop, authoritarian states invade privacy and limit personal freedom in the name of
counter-terrorism and maintaining stability, intensifying psychological manipulation at all levels.
Through control of the internet and command of facial recognition technology, authoritarian states
tighten their grip on people’s thoughts and actions, threatening and even eliminating freedoms and
political rights. Similar kinds of controls are being imposed to varying degrees within the global context.
From this we can see that under these new conditions human rights have not gained a common
understanding, and if discussion of human rights becomes narrow and shortsighted, it is bound to
become nothing more than outdated, empty talk.

Today, Europe, the US, Russia, China and other governments manufacture, possess and sell arms.
Pontificating about human rights is simply self-deluding if we fail to curb the dangerous practices that
make armed conflict all the more likely. Likewise, if no limits are placed on capitalist global expansion
and the pervasive penetration of capital power, if there is no effort to curb the sustained assault by
authoritarian governments on natural human impulses, a discussion of human rights is just idle chatter.
Such a blatant abdication of responsibility can lead to no good outcome.

Human rights are shared values. Human rights are our common possession. When abuses are
committed against anyone in any society, the dignity of humanity as a whole is compromised. By the
same token, it is only when the rights of any individual and rights of the people of any region receive our
care and protection that humanity can achieve a shared redemption.

Such is the principle of human rights, in all its stark simplicity. But a shared understanding of that truth
still eludes us. Why so? Could it be that we are too selfish, too benighted, too lacking in courage? Or,
perhaps, we are insincere, we don’t really love life enough: we con ourselves into imagining we can get
away without discharging our obligation to institute fairness and justice, we fool ourselves into thinking
that chaos is acceptable, we entertain the idea that the world may well collapse in ruin, all hopes and
dreams shattered.
If we truly believe in values that we can all identify with and aspire to – a recognition of truth, an
understanding of science, an appreciation of the self, a respect for life and a faith in society – then we
need to eliminate obstacles to understanding, uphold the fundamental definition of humanity, affirm
the shared value of human lives and other lives, and acknowledge the symbiotic interdependency of
human beings and the environment. A belief in ourselves and a belief in others, a trust in
humanitarianism’s power to do good, and an earnest recognition of the value of life – these form the
foundation for all human values and all human efforts.

Framing the death penalty as a violation of human dignity provides the tools to
challenge the focus on retribution that sustains other harsh punishments AND it
allows us to fall in sync with the global anti-death penalty movement
Kleinstuber, et. al, 16 --- assistant professor of Justice Administration and Criminology at the
University of Pittsburgh at Johnstown (Ross Kleinstuber, Sandra Joy – professor of Sociology at Rowan
University, and Elizabeth A. Mansley – associate professor of Criminology at Mount Aloysius College,
“INTO THE ABYSS: THE UNINTENDED CONSEQUENCES OF DEATH PENALTY ABOLITION,” 19 U. Pa. J.L. &
Soc. Change 185, Nexis Uni via Umich Libraries, JMP)

Lastly, abolitionists need to adopt a broader view of their goals and change the framework. They cannot
simply accept the same "tough-on-crime" rhetoric that has led to America's incarceration binge, and
they cannot simply focus on the costs of the death penalty. If they want to make any sustained progress
against the inhumanity and brutality of American penal policy, then they need to adopt a frame that
explicitly focuses on human rights and attacks the philosophical tenets that justify capital punishment
and other excessively punitive penalties. Otherwise, even if they accomplish complete abolition, they
will simply be left with another cruel, degrading, inhumane, and ineffective punishment in its place -
one that is used far more often, with significantly less judicial oversight, and for substantially less severe
crimes. 135 Only by adopting a human rights framework will it be possible to see offenders as fellow
human beings, question the goal of punishment, and alter the retributive focus of the current
American penal state. We acknowledge that many Americans view retribution as the primary goal of
[*205] punishment, but when abolitionists succumb to this temptation, they end up inadvertently
supporting the expansion of the penal state and the dehumanization of offenders and drastically
reduce their means of challenging other draconian penalties . Therefore, it is critical that death penalty
opponents attack the retributive tenets upon which the current carceral regime is built and instead
focus on the humanity and redeemability of offenders. This is not to suggest that there is no room for
retribution in sentencing policies, but it should not be the primary sentencing rationale.

In most of the rest of the world, the anti-death penalty movement has already adopted a human
rights framework and successfully used it to challenge not just the death penalty, but a whole host of
other harsh punishments. As mentioned above, LWOP is unavailable for juvenile offenders anywhere in
the world outside the United States, and in 2013, the European Court of Human Rights ruled that LWOP
sentences for adults violate the European Convention of Human Rights because they constitute
"inhuman or degrading treatment or punishment." 136 Several European and Latin American nations
have even outlawed life with parole because such punishments are considered a violation of human
rights. 137 Getting to this point, however, requires a fundamental reframing of the narrative. It
requires a focus on the inherent humanity of offenders and on the possibility for reform:

The arguments in favor of having no life sentence at all and the arguments for having a fixed minimum
period after which release must be considered have essentially the same foundation: No human being
should be regarded as beyond improvement and therefore should always have the prospect of being
released. 138

Some abolitionists in the US have already adopted this human rights frame. For example, Human Rights
Watch (HRW) opposes "the death penalty in all cases as inherently cruel." 139 This approach allows
HRW to criticize other "disproportionately severe" penalties in the US as violative of "human rights laws
binding on the United States that prohibit cruel, inhuman or degrading treatment or punishment..." 140
Senator Ernie Chambers, who sponsored Nebraska's 2015 death penalty repeal justified his position by
referring to "human dignity," 141 and in Maryland, which abolished the death penalty in 2013, Governor
Martin O'Malley utilized a human rights perspective when he urged the legislature to repeal capital
punishment in 2009: "freedom, justice, the dignity of the individual, equal rights before the law - these
are the principles that define our character as a people. And so we must ask ourselves: are these
principles compatible with the "civil' taking of human life?" 142

[*206] Furthermore, although the primary focus of the final report of the Maryland Commission on
Capital Punishment was on pragmatic issues such as discrimination, cost, the risk of executing the
innocent, and the severity of LWOP and its capability of "gravely punishing the guilty defendant," 143
the report also included a section on religious views on capital punishment. Written by two religious
leaders, this section discussed "the sanctity of human life" that prohibits retributive homicide and even
compared capital punishment to other "cruelties … whose time has come and gone, noting that it
persists mostly in societies with which we hesitate to identify ourselves," such as torture, mutilation,
and the public display of executed bodies. 144 The two religious leaders went on to argue that even if
capital punishment could be applied without error or racial bias "we should not resort to the death
penalty, not even in the case of one who takes the life of another human being..." 145

Adopting this human rights frame will allow abolitionists to view convicted killers as fellow human
beings. It will empower abolitionists to continue attacking the death penalty without having a negative
ripple effect on the rest of the justice system, in a way that opens up doors to attacking other
excessively punitive sanctions and expands opportunities to challenge and discover wrongful
convictions of all kinds. This is not a criticism of the current abolitionist movement. The abolitionists'
embrace of LWOP is understandable given its ability to garner support for abolition. However, this
position is akin to hiding under a tall tree during a thunderstorm. It may make intuitive sense, but upon
further examination of the facts, it turns out to be counterproductive. As we have pointed out here,
LWOP is essentially the same as a death sentence, but it is not accompanied by the same due process
protections or opportunities to challenge the accuracy of the conviction, and it has become used far
more frequently than death ever was and for far less serious offenses. Like the death penalty, LWOP
sentences deny the humanity of offenders and give up on any hope of rehabilitation. This denies society
the opportunity to be repaid by and to benefit from the positive contributions offenders may make in
the future. As such, we should not replace one death sentence with another. That is not progress.
The U.S. must recognize the unfortunate influence it has in the global death-penalty
practice --- helps sustain it in Africa, the Middle East, and South and Southeast Asia
AND it undermines international human rights law --- reversal by the Court is
necessary to reinvigorate global abolition
Caplan, senior research scholar at Yale Law School, 16 (12/31/16, Lincoln, “The Growing Gap
Between the U.S. and the International Anti-Death-Penalty Consensus,”
https://www.newyorker.com/news/news-desk/the-growing-gap-between-the-u-s-and-the-
international-anti-death-penalty-consensus, accessed on 4/25/2020, JMP)

Last week, the General Assembly of the United Nations adopted a resolution calling for a worldwide
“moratorium on the use of the death penalty”—the sixth that the U.N. has approved in the past decade.
Each one has gained the support of more of the organization’s members. The latest vote was a hundred
and seventeen countries in favor to forty against. (Thirty-one abstained, and five did not vote.) In
addition to a call for a halt to executions worldwide, the resolution urges countries that maintain the
death penalty to increasingly restrict its imposition and to apply international laws that protect the
rights of those facing the penalty. The rights include that a death sentence may be imposed only for the
“most serious crimes,” defined as intentional crimes that have “lethal or other extremely grave
consequences,” and that execution be carried out only after “a final judgment rendered by a competent
court,” following a legal process that insures a fair trial and that provides access to appeal to a higher
court and the opportunity to seek a pardon or a commutation of the sentence.

At the General Assembly, the United States cast one of the nay votes. Stefanie Amadeo, the deputy
representative to the U.N. Economic and Social Council, explained the country’s position, which is
basically unchanged since the U.S. opposed the first resolution against the death penalty, in 2007: “The
ultimate decision regarding these issues must be addressed through the domestic democratic processes
of individual Member States and be consistent with their obligations under international law,” which
does not prohibit capital punishment. The position reflects the American reality of supporting the death
penalty in principle, but increasingly outlawing it in practice. As Jeffrey Toobin reported recently, the
U.S. maintains the death penalty under federal and military law and under the laws of thirty-one states
—even though only five states conducted executions in 2016 and executed only twenty people in total,
the lowest number in twenty-five years.

The U.S. stresses the importance of observing global norms. “Just as the United States is committed to
complying with its international obligations,” Amadeo said, “we strongly urge other countries that
employ the death penalty to do so only in full compliance with their international obligations.”
Meanwhile, in the past forty years, the U.S. Supreme Court has increasingly sought to restrict the
application of the death penalty to the worst of the worst offenders—first, to people who commit the
most heinous murders and, then, only to adults who commit them, excluding youth under the age of
eighteen. In addition, it generally takes a decade or more for a state to carry out an execution because
of challenges to a death sentence allowed under due process of law.

Among the states with the death penalty, twelve have not carried out an execution for a decade or
more, and another five have not executed anyone for at least five years. In California, where the last
execution was in 2006, there were seven hundred and fifty people on death row as of December 2nd.
Rather than being executed (the state has executed only thirteen people since 1978) it is much more
likely that a death-row inmate will die as a result of natural causes or suicide.

Roger Hood, an emeritus professor at Oxford, and Carolyn Hoyle, who directs Oxford’s Centre for
Criminology, last year published the fifth edition of “The Death Penalty: A Worldwide Perspective.” Their
book documents the many ways that people are sentenced to death in violation of international law—
for drug-trafficking, for example, rather than for “the most serious crimes,” in unfair proceedings and
with no opportunity to ask for clemency, and while imprisoned in terrible conditions. These and other
realities, they write, are moving “the debate about capital punishment beyond the view that each nation
has, if it wishes, the sovereign right to retain the death penalty” to persuading “countries that retain the
death penalty that it inevitably, and however administered, violates universally accepted human rights.”
Countries that employ the death penalty and insist that they are abiding by international law,
including the U.S., decline to join in making the most important international commitment about the
penalty, which is to reject it as a violation of human rights.

There has long been a gap between the idealism that the U.S. expresses when boasting of its dedication
to the rule of law, especially the protection of individual rights, and the reality of its persistent refusal to
abide by major international human-rights commitments. The U.S. was a leader in the development of
the Universal Declaration of Human Rights, which the U.N. adopted in 1948, but stopped supporting the
international system to carry it out because, among other reasons, Jim Crow laws directly violated the
declaration. There is a sizable list of human-rights treaties—on the Rights of the Child, for example, and
on the International Criminal Court—that the U.S. has signed but not ratified. Even when the U.S. ratifies
treaties, the government often adds a caveat that excludes protection of some basic rights.

As a result, the U.S. has ended up in some rough company, particularly when it comes to the death
penalty. In the past generation, the number of countries that have stopping using the death penalty has
doubled, from about fifty to about a hundred. Of the fifty-seven member states of the Organization for
Security and Co-operation in Europe, and of the thirty-five member states of the Organization of
American States, only the U.S. carried out executions last year. The countries that executed the most
offenders were, in order, China, Iran, Pakistan, Saudi Arabia, and the United States. China executed
thousands of people, though its secrecy about its use of capital punishment makes it impossible to know
exactly how many. Excluding China, Iran (with close to a thousand or more), Pakistan (three hundred
and twenty-six), and Saudi Arabia (a hundred and fifty-eight) executed almost nine out of ten people put
to death worldwide—“often after grossly unfair trials,” according to Amnesty International, and “for
crimes—including drug trafficking, corruption, ‘adultery,’ and ‘blasphemy’—that do not meet the
international legal standards for the use of the death penalty.” In 2015, according to Amnesty
International, at least a thousand six hundred and thirty-four people were executed, an increase of more
than fifty per cent from the year before and the highest number in a quarter of a century. (The
organization expects to release figures for 2016 in the spring.)

The United States, in other words, ranks with countries that conspicuously are not in full compliance
with their international obligations. And its responsibility is sometimes worse than guilt by association.
As Maya Foa, the director of the death-penalty team at Reprieve, an international human-rights
organization, told me, “The U.S. clearly leads and influences global death-penalty practice. Our
partners, who are lawyers and human-rights defenders in jurisdictions that retain the penalty, tell us
that the use of the death penalty by the U.S., a ‘developed’ nation, is used to justify the death-penalty
practice in the jurisdictions they work in.” Reprieve is providing legal and investigative assistance to
people facing execution in eleven countries, in Africa, the Middle East, and South and Southeast Asia,
and in the U.S.

In August at a rally in Istanbul, after the failed coup attempt in Turkey, the BBC reported, the country’s
President, Recep Tayyip Erdoğan, said, “They say there is no death penalty in the E.U. ... Well, the U.S.
has it; Japan has it; China has it; most of the world has it. So they are allowed to have it. We used to
have it until 1984. Sovereignty belongs to the people, so if the people make this decision I am sure the
political parties will comply." He said that the Turkish people might want to restore the death penalty to
punish those responsible for killing hundreds of citizens during the attempted coup. That has not
happened yet, but, if it does, its purpose, Erdogan suggested, will be a display of cold-blooded power.

The influence of the U.S. on the death penalty worldwide has sometimes been constructive. In 1976,
for example, when the Supreme Court ruled that it was unconstitutional for a state to make the death
penalty mandatory for any crime, it marked the beginning of the decline of mandatory death
sentences around the world. “The fundamental respect for humanity underlying the Eighth
Amendment,” the Court said, “requires consideration of the character and record of the individual
offender and the circumstances of the particular offense.”

The Indian Supreme Court employed this logic when it struck down the mandatory death sentence in
the country’s penal code, in 1983. The legislature, it held, could not compel judges “to shut their eyes to
mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a
preordained sentence of death.” More recently, the Cornell Center on the Death Penalty Worldwide
reports, eighteen other countries have followed suit and struck down the mandatory death penalty,
including almost every Caribbean nation and Uganda, Malawi, and Kenya.

In their latest edition of “The Death Penalty,” Hood and Hoyle write optimistically about the U.S.
example: “Those who campaign for abolition worldwide can hope that it will not be many years before
the U.S. Supreme Court will be able to find that the majority of states, in line with a majority of countries
worldwide, does not support the death penalty for anyone.” Donald Trump has said that he will replace
the late Justice Antonin Scalia—the Court’s most vehement defender of the death penalty for almost
thirty years—with someone in his mold. But, even when that happens, there will be a possibility that
Justice Anthony Kennedy will join the Court’s moderate liberals in striking down the death penalty, for
reasons Justice Stephen Breyer articulated in 2015: “The Court in effect delegated significant
responsibility to the States to develop procedures that would” insure the fairness of the capital-
punishment system, he wrote. “Almost 40 years of studies, surveys, and experience strongly indicate,
however, that this effort has failed.” If the Court continues to uphold the death penalty, on the other
hand, the gap between the U.S. and a large and growing majority of the rest of the world will continue
to increase.
Abolishing the death penalty would allow us to join and help lead a worldwide
conversation to promote fair criminal justice
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 254-255,
JMP)

Human Rights

“The death penalty has no place in the 21st century,” said Ban Ki-moon, then the Secretary General of
the United Nations. The triumph of mercy is a global phenomenon. A majority of the countries in the
world have now abolished the death penalty, and even more do not use it in practice.42 More than four
out of five countries have abolished or stopped using the death penalty. China, Iran, Iraq, Saudi Arabia,
and the United States are at the top of the list of states that execute the most people each year. Indeed,
the only countries that have seen executions increase in recent years are Iran, Pakistan, and Saudi
Arabia. Saudi Arabia typically beheads individuals and displays bodies in public as a warning. China,
Saudi Arabia, and Pakistan sentence people to death for drug crimes, financial crimes, and lesser
“crimes” including adultery and blasphemy.

For decades, challenges to the death penalty have forced Americans to think carefully about the
connections between our own criminal justice practices and those around the world. Ever since Trop v.
Dulles, in 1958, when the Supreme Court announced that cruel and unusual punishment should be
governed by “evolving standards of decency that mark the progress of a maturing society,” the justices
have occasionally looked to punishment practices in other countries. We should not be behind the
“civilized nations of the world” but rather should be a model for all nations. In 1977, the justices ruled
out the death penalty for rape, noting international consensus among major nations.43 In 2002, in
Atkins v. Virginia, the justices noted that “within the world community,” the execution of intellectually
disabled offenders is “overwhelming disapproved.”44 In 2004, in Roper v. Simpson, the justices
described as “instructive” the “overwhelming weight of international opinion against the juvenile death
penalty.” The United States “now stands alone in a world that has turned its face against the juvenile
death penalty.”45 Even Supreme Court Justice Sandra Day O’Connor, who disagreed with the result in
that case, agreed that it was appropriate to rely on international practices, since our “evolving
understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with,
the values prevailing in other countries.”46 Others strongly disagree. Justice Antonin Scalia maintained
that international human rights and practices are not relevant, and we need not try to “conform”
American law to the “views of foreigners.”47

A new moral awakening has made killing the death penalty feasible for the first time in decades, and the
same forces are working their way around the world. Just as the death penalty is in decline and
concentrated within the United States, fewer countries across the world have the death penalty or use it
in practice. The trend, sometimes despite popular opinion, is unmistakable. The countries that are
doubling down on executions are largely authoritarian regimes. We should not remain in their company.
What would it mean to rethink punishment as part of an international community, with common values
and concern for fundamental human rights? Since the death penalty is seen as so out of touch with
fundamental human rights, rejecting the death penalty definitively in America would mean we would
no longer “stand alone,” or stand with the likes of Iraq and Saudi Arabia in our punishment practices .
Joining the broad set of nations that have abolished the death penalty could help us be part of that
worldwide conversation rather than standing to the side as an outlier. After the fall of the death
penalty, the United States can reclaim its role as the standard-bearer for fair criminal justice.
 1ac Plan

The United States federal government should abolish capital punishment.

 1ac Solvency

The Court should unequivocally repudiate the death penalty --- case-by-case
judgements and deference to the states inevitably fail --- only abolishing it can
overcome inherent problems in the process
Berry, 11 --- Assistant Professor of Law, University of Mississippi (Spring 2011, WILLIAM W. BERRY III,
“CRIMINAL LAW: REPUDIATING DEATH,” 101 J. Crim. L. & Criminology 441, Nexis Uni via Umich Libraries,
JMP)

IV. Pandora's Box and the Inevitability of Repudiation

After arriving among mortals, Pandora opened the lid of a great jar that she had with her, causing a host
of evils and disease to be released among the mortals for the first time; for until that moment, men had
lived on the earth free from toil and sickness and other ills. 264

Having established that the three parallel shifts in perspective as to the use of capital punishment are
questions of institutional and not normative choice, this Article concludes by claiming that these
outcomes are inevitable consequences of the initial decision to constitutionalize capital punishment.

In reviewing the capital jurisprudence of the United States Supreme Court since Furman through the
lens of institutional choice, the result of abandoning judicial restraint appears to be one of opening a
sort of constitutional Pandora's box. 265 In other words, by constitutionalizing capital punishment
through its application of the Eighth Amendment, the Court exposed itself to a complex, multilayered
morass of problems that it is ill-equipped to remedy.

These problems began with Furman, where a fractured majority (each Justice wrote their own opinion)
held capital punishment as instituted by the states was cruel and unusual punishment in violation of the
Eighth Amendment. 266 In Furman, the Court highlighted many problems with the death penalty, most
notably the manner in which the death penalty was arbitrarily and disproportionately applied to certain
minority groups. 267 And in recent years, the problems have only magnified, with studies [*487]
demonstrating vast amounts of error 268 and increasing discoveries of innocent individuals on death
row as well as the likelihood that innocent individuals have, in fact, been executed. 269

The "discovery" of such a complex and intractable set of problems is certainly not unique to the Eighth
Amendment. For instance, the Fourth Amendment's prohibition against search and seizure has become
a complicated mess with no clear rule to determine what constitutes a reasonable search or seizure. 270
The same is true for the voting apportionment cases - once the Court applied the Constitution, the Court
opened the door to a number of interpretive problems. 271 The First Amendment Establishment Clause
jurisprudence followed the same pattern. 272 The application of the Constitution in a single case to an
area formerly controlled by state government legislation opens the door to a series of interpretive
problems that are difficult to solve on a case-by-case basis. Thus, despite the Court's best efforts to
limit its involvement in such areas, based on an abundance of caution and restraint in applying such
open-ended constitutional language, the outcome is a long series of cases through which it becomes
increasingly difficult to establish intelligible principles and bright-line rules.
In all of these examples, experience cautions against the Court's intervention into matters that have
been historically addressed by the state legislatures. This concept of judicial restraint and deference
toward state legislatures makes sense at first blush as a matter of institutional choice. State legislatures
have a political process that can create nuanced and complex sets of rules, conduct thorough research
and inquiry, and modify such rules as experience demonstrates their flaws and shortcomings. Further,
state legislatures, as institutions comprised of elected officials, are [*488] subject to majoritarian
opinions and values. Finally, state legislatures enjoy the ability to compare themselves with each other
as competing experimental laboratories. Indeed, one of the important values of our federalist system of
government, as Justice Brandeis famously stated, is that "a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of
the country." 273

On the other hand, the Court does have a responsibility to protect the individual rights of citizens
against the potential tyrannical overreaching of those same state legislatures. The Constitution, and in
particular, the Bill of Rights, relies on the Court to intervene to protect those rights. As Justice White
has explained,

Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to
what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no
different posture. It seems conceded by all that the Amendment imposes some obligations on the
judiciary to judge the constitutionality of punishment and that there are punishments that the
Amendment would bar whether legislatively approved or not. 274

Given the opaque language of the provision applicable here - "cruel and unusual" punishment -
attempting to protect citizens' rights under a modern understanding 275 of such words 276 invites the
opening of a judicial Pandora's box. 277

Thus, this Pandora's box understanding of judicial restraint begins with the premise that certain
applications of the Constitution to conduct formerly regulated by the state legislatures open a Pandora's
box of judicial intervention such that the Court must continually intervene to address the myriad of
issues that subsequently arise as a by-product of its initial intervention .

In this scenario, the Court is left with three choices: (1) try to close the box, (2) grapple indefinitely with
the vast permutations of its original intervention and continue to regulate state legislatures and their
legislative schemes on a case-by-case basis as issues happen to reach the Court, or (3) remove the box
altogether (and completely prohibit the states from engaging in that area) .

[*489] Closing the box, although advocated by Justice Scalia in the death penalty context, 278 is often a
near-impossibility. Once the Court has engaged in regulating a particular area under the Constitution,
it is difficult to go back, particularly given its traditional application of the principle of stare decisis.
279 This becomes even more true the longer the Court continues to apply the constitutional provision,
as its general application becomes more settled and often more accepted.

Continuing to apply the constitutional provision in a case-by-case basis, no matter how tortured the
jurisprudence, has been the traditional practice of the Court. It has always seemed willing to give the
states another try and allow state legislatures to remedy the latest constitutional flaw. 280
Death, however, is different. 281 While speech, freedom from search and seizure, and voting are
important constitutional rights, the deprivation of one's life is a far more serious proposition. As the
Supreme Court has repeatedly noted, "there is no question that death as a punishment is unique in its
severity and irrevocability." 282 Thus, the consequence of relying on a case-by-case approach to
address constitutional problems is that innocent individuals may be executed by the states.

Death is also different in the sense that capital trials tend to be full of error. According to one recent
study, almost seventy percent of capital cases involve at least one serious, reversible error. 283
Ironically, despite all of the Court's constitutional regulation of the death penalty, the problems
[*490] have only increased over time. 284 Continued doubts about the capital system's ability to avoid
imprisoning innocent individuals 285 and perhaps in some cases, execute them, is perhaps the best
evidence that the Furman experiment has simply failed.

Thus, the second part of the Pandora's box understanding of judicial restraint, as applied to capital
punishment, is that, given the ways in which "death is different," pulling the box off of the table is the
inevitable conclusion one reaches if one opens the box in the first place.

Justice Powell ultimately concluded that getting rid of the death penalty was the only option after
being unable to solve the problem raised by McCleskey - that race will always unfairly influence who
receives the death penalty. 286 Throughout his jurisprudence, Justice Powell adhered to the principle of
judicial restraint, but in the end, concluded that the Pandora's box of capital punishment should be
removed from the reach of the states. 287

Justice Blackmun personally believed that the death penalty should be abolished. 288 Several times
during his tenure on the Supreme Court he wrote that if he were a legislator he would cast his vote to
strike down capital punishment. 289 Yet, during the early years of his career, Justice Blackmun exercised
judicial restraint and refrained from constitutionalizing the issue of capital punishment. 290 Once
Pandora's box was open, however, Justice Blackmun slowly began restricting the application of the
death penalty in certain circumstances. 291 Ultimately, at the end of his career, the only remaining
option was to remove the proverbial box of death penalty jurisprudence and eliminate its existence
entirely through abolition of the death penalty. 292 In the end, for Justice Blackmun, all of the tinkering
in the [*491] world by the Supreme Court could not correct the fundamental problems of the
administration of the death penalty. 293

Justice Stevens likewise sought for many years to solve the problems raised by the administration of the
death penalty by the various states. 294 He ultimately concluded, though, that despite all of the Court's
intervention, the same fundamental errors and flaws still persisted. 295 In the end, for Justice Stevens,
Justice White's view in Furman - that the costs of allowing capital punishment heavily outweighed any
benefit it might offer. 296

To constitutionalize the death penalty, then, sets one on a path toward its abolition. As the Court's
jurisprudence has shown, the Eighth Amendment is not, and never will be, an effective tool that can
eliminate the deep and fundamental problems with the capital systems adopted by the states: the
propensity for widespread error and the risk (and even likelihood) of innocent individuals being
executed.
Is the answer then to not constitutionalize it in the first place and allow the state legislatures
complete autonomy to implement their capital systems? As Justice Scalia has argued, "there is
something to be said for popular abolition of the death penalty; there is nothing to be said for its
incremental abolition by this Court." 297

Certainly not. As the Court explained in Furman, the historical implementation of capital punishment
has always been full of problems. And as remains true today, "these death sentences are cruel and
unusual in the same way that being struck by lightning is cruel and unusual." 298 As the jurisprudence of
Justices Powell, Blackmun, and Stevens can attest, the error of the Court came not when it "opened the
box" in Furman, but when it allowed the box back on the table in Gregg.

V. Conclusion

This Article has sought to fill the void of a collective analysis of the repudiation of capital punishment by
Justices Powell, Blackmun, and Stevens from their initial pro-death penalty positions. It has
conceptualized these parallel shifts not as normative changes, but from the perspective of institutional
choice.

[*492] Thus, this repudiation is a story of abandoning judicial restraint at two levels. First, this Article
explored the change at the level of constitutionalizing the death penalty in the first place, and then at
the level of abolishing the death penalty altogether.

From this jurisprudence, the Article has argued that the conclusions of each of the three Justices are the
inevitable consequence of abandoning judicial restraint because of the Pandora's box nature of such
constitutional interpretation. The Article claims that, in the capital context, there are two natural
consequences of constitutionalizing capital punishment. First, the initial decision to make the issue a
constitutional one rather than one exclusively regulated by state legislatures results in the creation of
numerous doctrinal and jurisprudential problems in the use of the death penalty. As with other similar
areas, the problem becomes magnified as the Court tries to address these systemic issues one case at a
time.

In the capital context, there is a second consequence of constitutionalizing the death penalty. Based on
the notion that "death is different" and the high volume of error in capital cases, the inevitable outcome
of constitutionalizing capital punishment is the conclusion that capital punishment should be abolished.

In sum, then, the Article has attempted to explore and explain the dramatic shift in the capital
jurisprudence of Justices Powell, Blackmun, and Stevens. Perhaps their sentiments can best be
summarized by the Frenchman Marquis de Lafayette:

Till the infallibility of human judgments shall have been proved to me, I shall demand the abolition of
the penalty of death. 299
Supreme Court action is critical to successful abolition --- it must defy public opinion
and live up to history's demands to avoid repeating the same mistake it made with
slavery
Barry, 17 --- Professor, Quinnipiac University School of Law (Fall 2017, Kevin M., “2016 SYMPOSIUM:
THE DEATH PENALTY'S NUMBERED DAYS?: THE LAW OF ABOLITION,” 107 J. Crim. L. & Criminology 521,
Nexis Uni via Umich Libraries, JMP)
C. LEADERSHIP FROM THE FRONT

Where abolition has come about in other countries, "it has not been as a result of the majority of the
general public demanding it." 41 Indeed, Zimring and Hawkins could not find any "examples of abolition occurring at a time when public opinion
supported the measure." 42 When countries abolish the death penalty, it is instead the result of what Zimring and Hawkins call

"leadership from the front" - "responsible agents manifesting a willingness to act against public
opinion." 43
One obvious reason for the gap between public opinion and the government is perspective: the public views the death penalty from afar, like an amateur
astronomer gazing at the moon. 44 From a distance, the death penalty appears as "an important legal threat, abstractly desirable as part of society's permanent
bulwark against crime." 45 But government actors - particularly judges - do not share this luxury of distance. Those "closer to the nexus between policy and practice,
between "the death penalty' as statute, and killing people as punishment" see the death penalty as it truly is, with all of its imperfections laid bare. 46

The U.S. experience is emblematic of the divide between popular support for the death penalty and political leadership against it. According to an October 2016
Gallup poll, 37% of respondents answered "no" when asked whether they were "in favor of the death penalty for a person convicted of murder." 47 Although this is
the highest rate of death penalty opposition in [*530] forty-five years, 60% answered yes (down 20% from an all-time high of 80% in 1994). 48 On November 8,
2016, voters in California rejected a referendum to abolish the death penalty (53% to 46%), 51.1% of voters voted to hasten the execution process in California, 61%
of voters in Nebraska reinstated the death penalty that the state legislature repealed in 2015, and two-thirds of Oklahoma voters passed a referendum that
amended their constitution to permit the death penalty. 49

Despite popular (albeit declining) support for the death penalty, various government leaders have taken action to end it. At the state level, legislative leadership has
led to repeal of the death penalty in five states over the past decade: New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), and Maryland
(2013). 50 In 2015, the Nebraska legislature repealed the death penalty over a gubernatorial veto; voters reinstated the death penalty by referendum in 2016. 51
Executive leadership at the gubernatorial level has completely halted executions in Colorado, Washington, Oregon, and Pennsylvania, and has resulted in the
commutation of death sentences in New Jersey, Maryland, Illinois, and several other states. 52 Leadership among district attorneys has likewise resulted in fewer
death sentences. 53 And three [*531] state supreme courts - California (1972), Massachusetts (1980), and Connecticut (2015) - have struck down the death penalty
as unconstitutional per se, although voters in California and Massachusetts later abrogated the decisions of their high courts by amending their state constitutions
to permit the death penalty. 54

In our federal system, the actions of state legislatures, governors, and state supreme courts can only
do so much; to abolish the death penalty, it will take federal action. 55 Congress could pass a law prohibiting the death
penalty, but it is unlikely to do so on such a divisive issue. 56 The President could halt federal executions and pardon federal prisoners, but this is similarly unlikely,
as is the U.S. Attorney General's refusal to authorize federal prosecutors to seek the death penalty. 57 In any event, these executive [*532] actions would apply
only to people convicted of federal crimes. 58

This leaves the U.S. Supreme

Court, the branch whose membership is insulated from public opinion 59 and
"whose exercise of moral leadership is supported by a long historical tradition," as the best bet to
abolish the death penalty for good. 60 In 2015, the Supreme Court seemed poised to do so. 61 That year, in Glossip v. Gross, four Supreme
Court Justices - Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor - dissented from a decision upholding Oklahoma's lethal injection protocol,
and the former two Justices stated that it was "highly likely that the death penalty [*533] violates the Eighth Amendment." 62 Approximately three months later,
and shortly before his death, Justice Antonin Scalia told an audience of college students that four of his colleagues on the Court believe that the death penalty is
unconstitutional, and that he "wouldn't be surprised" if the Court abolished it. 63 The fate of the death penalty, it appeared, lay in the thoughtful hands of Justice
Anthony Kennedy, whose soaring opinions supporting LGBT rights and limiting the class of people eligible to receive the death penalty have "pushed "dignity' closer
to the center of American constitutional law and discourse." 64

***start of footnote 59***

The experience of state judges illustrates the importance of Supreme Court leadership. When state
courts have abolished the death penalty outright or reversed death sentences on a case-by-case basis, "the offending judges
have sometimes been removed in retention elections , though veiled hints alone have usually sufficed to secure compliance with
popular will. Lacking the institutional wherewithal of the federal courts, state judges must either relent or
face ouster." Stephen P. Garvey, Politicizing Who Dies, 101 Yale L.J. 187, 207 (1991); see, e.g., Phyllis Goldfarb, Matters of Strata: Race, Gender, and Class
Structures in Capital Cases, 73 Wash. & Lee L. Rev. 1395, 1419-20 (2016) (discussing efforts to defeat elected justices); Ronald J. Tabak, The Death of Fairness: The
Arbitrary and Capricious Imposition of the Death Penalty in the 1980s, 14 N.Y.U. Rev. L. & Soc. Change 797, 846 (1986) (discussing "efforts to defeat sitting justices
because of their death sentence votes."); Christopher Keating, House, Senate Approve Justice Palmer For Another Term On Supreme Court Bench, Hartford Courant
(Mar. 8, 2017), http://www.courant.com/politics/hc-justice-palmer-votes-20170308-story.html (discussing unusually close vote in state senate to confirm the
reappointment of Justice Richard N. Palmer, who authored the 2015 decision abolishing Connecticut's death penalty).

***end of footnote 59***

But predictions about Justice Kennedy's willingness to join his four colleagues in abolishing the death penalty were premature. It is rumored that Justice Kennedy
will soon retire from the bench. 65 Should he do so within the next three years, the populist and pro-death penalty president, Donald Trump, will almost certainly
replace Kennedy with a conservative Justice unlikely to support judicial abolition. 66

Notwithstanding this setback for abolition, statistics detailing our moribund death penalty and its numerous flaws, coupled with an Eighth Amendment doctrine
rooted in human dignity that largely turns on such statistics, are cause for optimism. 67 While not imminent, judicial abolition is inevitable. In the words of Zimring
and Hawkins,

Although both the public mood and the ideology of governments fluctuate dramatically in relatively short periods of time, in the history of the Western world those
fluctuations [*534] occur within a larger continuous movement of developing social and political trends … . The movement for abolition of capital punishment … .
arises from "beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century. In this longer-
term perspective the transience and marginal significance of current fashion is clear … . We see the Court changed not by personnel or a single event but by a sense
of the necessity of living up to history's demands. 68

In short, the
Supreme Court's decision to abolish the death penalty will ultimately derive from its
understanding that there is a right side of history and from the Court's commitment to being on that
side.
II. The Law of Abolition

Having discussed why abolition ultimately depends upon the U.S. Supreme Court's willingness to act against public opinion, this essay now looks back at the history
of judicial abolition of the death penalty. The goals of this part are modest and few: to gather, for the first time and all in one place, the opinions of judges who have
advocated abolition of the death penalty for over the past half-century, and to suggest, through these opinions, what a Supreme Court decision invalidating the
death penalty might look like. 69

A. THE REASONS FOR JUDICIAL ABOLITION

When a majority of the Supreme Court abolishes the death penalty, it will not be going it alone.
Members of the judiciary, including several current [*535] and former Supreme Court Justices, have not
been silent on this issue. In all, at least thirty-five federal and state judges have concluded that the death
penalty is unconstitutional per se. 70 This is "the law of abolition." Although their opinions span well over
a half-century, their reasons for abandoning the death penalty are remarkably similar , and can be summed up as
follows:

1. Objective criteria detailing the death penalty's unacceptability to contemporary society, as gleaned from statutory repeals, the rarity of executions and death sentences, and the worldwide trend toward abolition.

2. A determination that the death penalty no longer serves any legitimate penological purpose, as gleaned from several sub-factors:

a. The inherently arbitrary administration of the death penalty;

b. The inherently discriminatory administration of the death penalty;

c. The inherent unreliability of the death penalty;

d. The inherently long delays in imposing the death penalty;

e. The illegitimacy of retribution as a goal of punishment; and

f. The excessive pain involved in the administration of the death penalty - both physically, in terms of execution, and also mentally, in terms of waiting for execution.

3. And, lastly, the recognition that the death penalty violates human dignity. 71

When the Supreme Court again turns to the constitutionality of the death penalty, one can expect many of these factors to weigh heavily in the Court's Eighth Amendment analysis. 72

B. THE HISTORY OF JUDICIAL ABOLITION

The history of judicial abolition begins in 1963, when newly appointed Supreme Court Justice Arthur Goldberg circulated a memo to his fellow Justices, arguing that the death penalty was per se cruel and unusual under the Eighth Amendment. 73 In support of his argument, Justice
Goldberg [*536] pointed to the death penalty's unacceptability to contemporary society, as measured by its abolition among a number of states and "many, if not most, of the civilized nations of the western world"; public opinion polls showing only 42% to 51% support for the death
penalty; and the risk of executing innocent people. 74 "Whatever may be said of times past," Goldberg wrote, "the evolving standards of decency that mark the progress of [our] maturing society now condemn as barbaric and inhuman the deliberate institutionalized taking of human life
by the state." 75 According to Justice Goldberg, the death penalty also failed to "achieve the permissible ends of punishment." 76 He found "no persuasive evidence that capital punishment uniquely deters capital crime," and he rejected "vengeance" (i.e., retribution) as an unacceptable
goal of punishment. 77

A majority of the Court did not share Justice Goldberg's opinion, and that is putting it lightly. As legal historian Stuart Banner has written, Chief Justice Earl Warren "was furious," fearing that publication of the memorandum would encourage defiance of desegregation efforts. 78 Justices
Marshall Harlan and Hugo Black were similarly aghast. 79
In an opinion dissenting from a denial of writ of certiorari in the case of Rudolph v. Alabama, Justice Goldberg reframed his original per se attack on the death penalty as a call for consideration of whether the death penalty was unconstitutional as applied to non-homicide crimes. 80
According to Professor Banner, Justice Goldberg's dissent "rang like an alarm clock in the [*537] offices of civil rights lawyers." 81 Although individual defense lawyers had been raising constitutional challenges to the death penalty in individual cases as early as 1950, by the late 1960's, a
network of highly skilled lawyers at the ACLU and the NAACP Legal Defense Fund were consistently raising these challenges in a large number of cases. 82

These arguments were initially met with resistance by courts. For example, in Sims v. Balkcom, the Supreme Court of Georgia had this to say about Goldberg's dissent in Rudolph:

With all due respect to the dissenting Justices [in Rudolph], we would question the judicial right of any American judge to construe the American Constitution contrary to its apparent meaning, the American history of the clause, and its construction by American courts, simply because the
numerous nations and States have abandoned capital punishment for rape. 83

But several state supreme court judges answered Justice Goldberg's call. 84

1. Abolition and Revival: 1971-1976

In 1971, in Adams v. State, two Indiana Supreme Court Justices argued in dissenting opinions that the death penalty was cruel and unusual under the state and federal constitutions. 85 Justice Roger DeBruler provided multiple reasons why the death penalty was unacceptable to
contemporary society. Like the Goldberg memorandum, he pointed to the abolition of the death penalty in a number of states (including in Indiana, where a repeal bill was vetoed) and throughout the world, as well as polling data suggesting a lack of support for the death penalty. 86 He
also offered a litany of other reasons for the death penalty's unacceptability, including the rarity of executions and [*538] high rate of executive commutations nationwide, the reluctance of juries to sentence people to death, and the reluctance of courts to affirm death sentences. 87
"When the penalty is death, we [state supreme court justices], like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance." 88 Finally, Justice Debruler relied on his own subjective judgment,
noting the "extreme" psychological and physical pain endured by those executed as well as the death penalty's unreliability and arbitrariness (disproportionately affecting the poor) as grounds for abolishing it. 89

In a separate dissenting opinion, Justice Dixon Prentice concluded that Indiana had already "abandoned capital punishment"; all that remained was for the court to abolish it. 90

It is ludicrous and inhumane to any longer suspend those under sentence of death in a state of limbo, pending formal abolition … . We are the guardians of the rights of the most lowly among us, and for us to require them to await the miracle of legislative action in their behalf is an
unwarranted passing of our responsibility to the Governor's office or to higher judicial authority and is a denial of constitutional rights. 91

Less than one year later, in 1972, in People v. Anderson, California became the first state ever to judicially abolish its death penalty. 92 In a 6-1 decision holding the death penalty unconstitutional under the California Constitution, the Supreme Court of California noted the rarity of
executions, the death penalty's brutalizing psychological effects, and its repudiation by a number of states and many nations. 93 The court also noted the death penalty's [*539] failure to deter crime, given lengthy delays between sentencing and execution and the arbitrariness inherent
in the selection of those for death. 94 And like Justice Goldberg, the Anderson court rejected "vengeance or retribution" as "incompatible with the dignity of an enlightened society." 95 According to the Anderson Court, the death penalty "degrades and dehumanizes all who participate in
its processes" and is "incompatible with the dignity of man and the judicial process." 96

Several months after the Anderson decision, in Furman v. Georgia, the Supreme Court famously struck down the death penalty as applied, holding that standardless jury sentencing violated the Eighth Amendment. 97 Significantly, Justices Thurgood Marshall and William Brennan went
further. In their concurring opinions, they argued that the death penalty was unconstitutional per se, relying on many of the same arguments raised by the Goldberg memorandum, the Indiana Justices, and the majority in Anderson. 98 Specifically, Justices Marshall and Brennan noted the
death penalty's rejection by contemporary society; the arbitrariness, unreliability, and mental pain inherent in the administration of the death penalty; and the death penalty's failure to deter or deliver retribution, given the inefficiency and arbitrariness with which it is imposed. 99
According to Justice Marshall, the death penalty was not only arbitrary but also discriminatory, with "the burden of capital punishment falling upon the poor, the ignorant, and the under privileged members of society." 100 And for Justice Brennan, dignity was central: "In comparison to
all other punishments today, … the deliberate extinguishment of human life by the State is uniquely degrading to human dignity." 101

The abolitionists' victory was short-lived. Just four years later, in 1976, in Gregg v. Georgia, the Supreme Court explicitly rejected Justice Marshall's and Brennan's position: the death penalty was not per se unconstitutional [*540] under the Eighth Amendment. 102 Although the Supreme
Court has repeated this refrain since 1976, 103 a significant number of federal and state court judges have challenged this assumption. 104

2. Abolition Post-Gregg: 1977-1990

In 1977, in Pierre v. Utah, Justice Richard Maughan of the Utah Supreme Court argued that the death penalty violates substantive due process under the federal and state constitutions because it deprives the "inherent and fundamental right" to life. 105 According to Justice Maughan, the
death penalty did not deter, as confirmed by abolition in a number of states with no associated rise in murders. 106 The only compelling purpose that could possibly justify the death penalty, he concluded, would be restoring life. 107 "Were there some way to restore the bereaved and
wounded survivors, and the victims, to what was once theirs[,]" he wrote, "there could then be justification for the capital sanction. Sadly, such is not available to us." 108

In 1980, in District Attorney v. Watson, the Supreme Judicial Court of Massachusetts followed California's lead in abolishing the death penalty. 109 In a 6-1 decision holding the death penalty unconstitutional under the Massachusetts Constitution, the court relied on the rarity of
executions and the risk of error as evidence of the death penalty's unacceptability, and also [*541] brought its own judgment to bear on the death penalty. 110 Chief among the court's reasons for abolishing the death penalty were arbitrariness, and racial bias specifically, in the
administration of the death penalty. 111 According to the court, "experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks." 112 Human dignity, and the physical and mental pain inflicted on the condemned, also played a role in the court's
decision:

There is little doubt that life is a fundamental right explicitly or implicitly guaranteed by the Constitution … . The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. 113

In a concurring opinion, Justice Paul Liacos underscored the death penalty's "physical and mental tortures" and its deprivation of human dignity. 114 "The purpose of the cruel or unusual punishment prohibition is to guarantee a measure of human dignity even to the wrongdoers of our
society," he wrote. 115 The death penalty was cruel and unusual because it

deemed the prisoner a nullity, less than human and unworthy to live … . My views would not change if stays on death row were made more pleasant, killing techniques less painful, or removal from death row more swift. This is a punishment antithetical to the spiritual freedom that
underlies the democratic mind. What dignity can remain for the government that countenances its use? 116

Over the next decade, four more state high court justices - in Tennessee, Wyoming, Washington, and Montana - similarly argued that the death penalty was per se unconstitutional. 117 In 1981, in his concurring opinion in State v. Dicks, Chief Justice Ray Brock of the Tennessee Supreme
Court argued in dissent that the death penalty violated the Tennessee Constitution. 118 Relying heavily on the reasoning of the Supreme Judicial Court of Massachusetts in Watson and the Supreme Court of California in Anderson, the Chief Justice argued that the death penalty was
unacceptable to contemporary society; served no legitimate purpose; and was "barbarous," [*542] arbitrary, and unreliable in its administration. 119 Significantly, in reaching this conclusion, the Chief Justice acknowledged that he erred in supporting constitutionality of the death
penalty in a concurring opinion just two years earlier: "But, I think it better to confess and correct that error than to perpetuate it." 120

That same year, in Hopkinson v. State, Chief Justice Robert Rose of the Wyoming Supreme Court made nearly identical arguments in an opinion concurring and dissenting in part. 121 The death penalty's unacceptability to contemporary society, lack of penological purpose (including the
illegitimacy of retribution as a goal of punishment), and infliction of physical and mental pain featured prominently in the Chief Justice's conclusion that the death penalty violated the Wyoming Constitution. 122 So, too, did the dignity of the condemned:

It frightens me to hear it argued that, since the vilest and most depraved criminal has killed four people, the most civilized and humane response that the state of Wyoming can think of, in discharging its punishment obligations to society, is to kill the killer while pretending that the act of
state murder is not offensive to her people's sense of decency.

I wonder how many capital victims would, if they could, tell us that the murders perpetrated upon them were not cruel - were not unusual - and therefore (within the ambit of these constitutional proscriptions) society could, so far as they were concerned, proceed to murder murderers.
123

In 1984, in his concurring opinion in State v. Rupe, Justice James Dolliver of the Washington Supreme Court cited Anderson in support of his conclusion that the death penalty violated the Washington Constitution. 124 [*543] Responding to the majority's charge of judicial activism, 125
Justice Dolliver stated that he was not substituting his moral judgments for those of the people of Washington; rather, he was deferring to those moral judgments as contained in the state constitution:

If the meaning and application of our Bill of Rights, and the judgments contained therein, were fully revealed, there would be no need for this court to sit on cases involving our Bill of Rights as the popular will would always be manifest. Unfortunately, the constitutional language defies
this easy escape for the judiciary. Thus, rather than decline to articulate the meaning of the constitution and its application, it is the duty of this court to express its understanding of the moral judgments rendered by the people in their constitution. 126

And in 1990, one year before his retirement, Justice John Sheehy of the Montana Supreme Court dissented in State v. Kills on Top, arguing that the death penalty was unconstitutional per se under the Montana Constitution. 127 Relying on Justice Brennan's concurrence in Furman, Justice
Sheehy supported his argument by pointing to the death penalty's unacceptability to contemporary society - particularly given Montana's lack of executions for over forty years with "no more than slight public reaction" - and the arbitrariness inherent in its administration. 128 Like Chief
Justice Brock of the Tennessee Supreme Court, Justice Sheehy came to the conclusion that the death penalty was unconstitutional after supporting its constitutionality for some time. 129 Furthermore, like Justice Dolliver of the Washington Supreme Court, Justice Sheehy understood his
decision to be motivated not by his personal moral views but rather by his interpretation of the state constitution:

For a long time I have had the moral conviction that exacting the penalty of death in criminal cases was improper. I have come to the legal conviction that the death penalty is indeed cruel and unusual punishment and so prohibited by the Eighth Amendment to the United States
Constitution. 130

3. North, South, and the Federal Courts: 1994-2015

The state with the most prolific, and also the most recent, history of [*544] judicial opinions declaring the death penalty unconstitutional per se is Connecticut. From 1994 to 2015, a total of seven Connecticut Supreme Court justices concluded that the death penalty violated the
Connecticut Constitution. 131

In 1994, in State v. Ross, Justice Robert Berdon concluded that the death penalty was unconstitutional under the Connecticut Constitution based on arguments raised in Anderson and Watson, namely its unacceptability to contemporary society, lack of a legitimate penological purpose,
unreliability, arbitrary and racially discriminatory application, and barbarity - particularly given long delays between sentencing and execution. 132 Citing Justice Brennan's concurring opinion in Furman, Justice Berdon concluded that the death penalty was "a denial of a person's basic
humanity … . To burn human flesh to death by electrocution, or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice." 133 Justice Berdon reiterated a number of these arguments - particularly his argument that the death penalty was racially
discriminatory - in a series of subsequent dissenting opinions. 134 "When a capital defendant marshals a compelling argument that the death penalty as it is administered in our state is incurably racist," he wrote in State v. Cobb, "we should stop dead in our tracks until we have given the
argument our most serious attention." 135

In 2000, in her dissenting opinion in State v. Webb, Justice Joette Katz similarly concluded that the death penalty violated the Connecticut Constitution. 136 Like those justices before her, Justice Katz regarded judicial abolition of the death penalty not as an affront to the separation of
powers, but rather of a piece with it:

[Judges] have a duty, as the final arbiters of the state constitution, to determine whether the punishment of death meets contemporary and moral standards of decency. If a penalty exceeds those bounds, as I believe the death penalty does, we have a [*545] constitutional obligation to
declare it unconstitutional, just as we would if the legislature provided for punishment by the rack, the screw or the wheel.

… Whether carried out by impalement or electrocution, crucifixion or the gas chamber, firing squad or hanging, lethal injection or some other method yet to be designed, the very quintessence of capital punishment is cruelty. 137

In a subsequent dissent in a different death penalty case, Justice Katz pointed to arbitrariness and racial discrimination as additional reasons for opposing the death penalty per se. 138 "Even under the most sophisticated death penalty statutes, race continues to play a major role. We
have not eliminated the biases and prejudices that infect society generally … ." 139
In contrast to the slow but steady drumbeat of state supreme court opinions opposing the death penalty post-Gregg, the federal judiciary was largely silent, save for the repeated dissents of Justices Brennan and Marshall. 140 This changed in 1994, when Justice Harry Blackmun, who had
voted to uphold the death penalty in Gregg, uttered his now famous words in an opinion dissenting from a denial of certiorari in Callins v. Collins: "From this day forward, I no longer shall tinker with the machinery of death." 141 Arbitrariness, discrimination, and unreliability, he reasoned,
were inescapable parts of that machinery; indeed, twenty years' worth of effort to remedy them had proven futile. 142 The death penalty - the "killing [of] human beings" - Justice Blackmun concluded, "cannot be administered in accord with our Constitution." 143

In 2002, federal district court Judge Jed Rakoff held that, given "the unacceptably high rate at which innocent persons are convicted of capital crimes" and the "prolonged delays before such errors are detected," the [*546] federal death penalty statute violated due process by depriving
innocent people of the right to prove their innocence. 144 Although Judge Rakoff's decision stopped short of holding the death penalty unconstitutional per se, this was the effect of his decision, for no criminal justice scheme is infallible. 145 Not surprisingly, the Second Circuit reversed
the decision, holding that "there is no fundamental right to a continued opportunity for exoneration throughout the course of one's natural life." 146

In 2008, Justice John Paul Stevens who, like Justice Blackmun, had voted to uphold the death penalty in Gregg, registered his opposition to the death penalty. 147 Relying on over thirty years of "almost daily exposure to the facts and circumstances of hundreds and hundreds of federal
and state criminal cases involving crimes for which death is the authorized penalty," Justice Stevens concluded that the death penalty was "patently excessive and cruel and unusual punishment violative of the Eighth Amendment." 148 The death penalty served no penological purpose, he
argued, and was plagued by arbitrariness and an "unacceptable" risk of racial discrimination and error. 149

On the heels of Justice Stevens's opinion in Baze v. Rees, Mississippi Supreme Court Justice Oliver E. Diaz, Jr., joined by Justice James E. Graves, Jr., argued that the death penalty violated the federal and state constitutions. 150 "I am convinced that the progress of our maturing society,"
Justice Diaz stated, "is pointed toward a day when our nation and state recognize that, even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment … . I would [*547] make today that day." 151

In reaching this conclusion, Justice Diaz traced the death penalty's familiar litany of failings, namely: "inherent" arbitrariness; "wholly inadequate" indigent defense; "the specter of racially motivated executions," particularly given that African Americans comprise more than half of
Mississippi's death row but constitute only one-third of Mississippi's population; unreliability, with exonerations "leaving little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths";
objective indicia of unacceptability, both statewide and nationally; and a lack of penological purpose, with deterrence unproven and retribution illegitimate. 152

In 2012, in State v. Santiago (Santiago I), Connecticut Supreme Court Justice Lubbie Harper, Jr. added his opposition to the death penalty under the Connecticut Constitution, focusing on the themes of unacceptability; a lack of legitimate penological purpose, particularly given "the anguish
attendant to capital punishment's performance of its irrevocable function"; and arbitrariness, racial discrimination, and unreliability inherent in the death penalty's administration. 153 Justice Harper's critique of the death penalty's "racially skewed imposition" was pointed:

The constitution and the standards of our society cannot possibly countenance ending a human life for racist reasons … . I take it as a matter too obvious to discuss that our state's constitution could not, in the twenty-first century, permit a hateful and vengeful system that takes the lives
of predominantly black men generally accused of crimes against whites. The parallels to a prior, equally untenable system of "justice" that once prevailed in much of this country are all too clear. While significant social progress has been made since those days, the continued exercise of a
racially charged system of extermination, coupled with the disparate treatment even of victims based on their race, is yet another reminder that our society's long path toward equality is far from complete. There is no better next step than the rejection of a system that is, in reality, little
more than the heir to lynch mobs. 154

Human dignity was also central to his critique. "The categorical exclusion of any person from humanity cannot be reconciled with a legitimate vision of human dignity," he wrote. 155 "It is a reality, albeit a difficult one, that even a person who commits the most heinous and [*548]
unforgivable acts is still one of us - a member of the human community and of our society." 156

In 2014, after four decades on the bench, Judge Tom Price of the Texas Court of Criminal Appeals, Texas' highest court for criminal appeals, called for an end to the death penalty in his dissenting opinion in Ex parte Panetti. 157 Characterizing judges as "guardians of the process," he
concluded that the death penalty process was inherently flawed and "should be abolished." 158 According to Judge Price, "societal values" supported abolition, as indicated by a reduction in death penalty prosecutions and death sentences. 159 In addition,

the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of
executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. 160

In 2015, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, argued in dissent that it was "highly likely that the death penalty violates the Eighth Amendment" and invited full briefing on the issue. 161 According to Justice Breyer:

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and
experience strongly indicate, however, that this effort has failed. 162

Four considerations led Justice Breyer to question the death penalty's constitutionality. The first consideration was the death penalty's lack of reliability, especially given the high number of exonerations in capital cases. 163 Second was the death penalty's arbitrariness, with death
sentences largely determined by race, gender, local geography, and resources, as opposed to the egregiousness of the crime. 164 Third was the extraordinary [*549] delay between sentence and execution, which aggravates the death penalty's cruelty and diminishes its legitimate
penological goals. 165 And the final consideration was the rarity with which the death penalty is carried out. 166

Responding to Justice Breyer's dissent, Justices Clarence Thomas and Antonin Scalia argued that judicial abolition would mark the culmination of the Court's "ceaseless quest to end the death penalty through undemocratic means," 167 "replacing the judgments of the People with [the
Court's] own standards of decency." 168 Justice Breyer acknowledged this "strong counterargument." 169 Over forty years ago, in Furman, he explained that the Court did look to the People - to Congress and state legislatures - to fix many of the very problems he had identified. 170 And
the legislatures responded. 171 But, he concluded:

In the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. 172

Just weeks later, in State v. Santiago (Santiago II), the Connecticut Supreme Court became the third state supreme court in history to abolish the death penalty. 173 In a 4-3 decision, the court ruled that the death penalty was cruel and unusual in violation of the Connecticut Constitution.
174 One year later, in May 2016, a newly reconstituted court upheld that decision 5-2. 175

The majority's reasons in Santiago II for abolishing the death penalty were familiar ones, neatly packaged into two parts. 176 First, the court concluded that the death penalty was unacceptable to contemporary society, [*550] based on objective criteria that included a rarity of
executions and Connecticut's 2012 partial repeal of the death penalty (for future crimes only). 177 Second, the court concluded that the death penalty lacked a legitimate penological purpose, given its inherent inefficiency, unreliability, arbitrariness, and "inescapable taint[]" of "caprice
and bias." 178 In response to a stinging dissent by Chief Justice Chase Rogers that accused the majority of "relying solely on its own views" and invalidating the death penalty because "it offends the majority's subjective sense of morality," 179 the Justices in the majority shot back:

We do not question the sincerity or good faith of Chief Justice Rogers' views, and we find it unfortunate that she deems it necessary to question ours. Although it should go without saying, we feel compelled to emphasize that we, no less than the dissenting justices, have decided this case
on the basis of our understanding of and dedication to the governing legal principles, and our decision should in no way be taken as an indication of our personal views with respect to the morality of capital punishment. 180

Justice Flemming Norcott, a staunch critic of Connecticut's death penalty for over two decades, 181 together with the newly appointed Justice Andrew McDonald, authored a joint concurrence addressing persistent allegations of racial and ethnic discrimination in the administration of the
death penalty. 182 "In light of the historical and statistical record," they wrote, "we would be hard-pressed to dismiss or explain away the abundant evidence that suggests the death penalty in Connecticut, as elsewhere, has been and continues to be imposed disproportionately on racial
and ethnic minorities." 183

[*551]

4. Honorable Mention

Several other judges deserve mention. While stopping short of either abolishing the death penalty per se or calling for its abolition, each has expressed grave doubts about whether the death penalty can ever be imposed as a sanction for murder. 184

In 1975, holding that Massachusetts' mandatory death penalty for rape-murder deprived "the fundamental constitutional right to life" in violation of the Massachusetts Constitution, Chief Justice G. Joseph Tauro of the Supreme Judicial Court of Massachusetts implied that a discretionary
death penalty would also violate the right to life. 185

Dissenting from a denial of post-conviction relief in a 1981 death penalty case, Justice Daniel Shea of the Montana Supreme Court chided the majority for "closing its eyes to the issues raised on appeal." 186 According to Justice Shea, the federal and state constitutions required an
evidentiary hearing to determine whether Montana's death penalty served any valid state purpose in light of its arbitrary and discriminatory imposition, the rarity of executions, and the undue delay between sentencing and execution. 187 "Never in the annals of criminal law history in
this State," he wrote, "has a defendant ever been the victim of such a consistent and wholesale denial of fundamental rights." 188

In a 1987 dissenting opinion concluding that New Jersey's death penalty statute was cruel and unusual as well as a violation of due process and "fundamental fairness" under the state constitution, New Jersey Supreme Court Justice Alan Handler stated that:

Time will settle the question [of whether the death penalty is unconstitutional per se]. All of us will, I am certain, endure the frustrating and frenetic attempts to enforce capital punishment in a fair and sensible way that now plague our sister states. That experience will, I fear, yield grim
confirmation of the fact that capital punishment in a civilized constitutional society is virtually impossible to administer in a principled manner. The [*552] per se invalidity of official capital punishment, in other words, may well be self-revealing. 189

Justice Handler chronicled this revelation in a long series of sharply-worded, voluminous dissents that took aim at the death penalty's arbitrariness and "impermissible risk of racial discrimination" that "singled out black persons for death." 190

In 1988, Justice Hans Linde of the Oregon Supreme Court suggested that every death penalty scheme raises concerns of arbitrariness - namely, the "prosecution[] of similar offenders committing similar crimes, of whom some are selected for the death penalty and others are not" - in
violation of the state constitution. 191

In 1989, Justice Robert Glass of the Connecticut Supreme Court expressed "serious doubts as to the viability of [the U.S. Supreme Court's] death penalty standard that only provides that the sentencer's "discretion must be suitably directed and limited so as to minimize the risk of wholly
arbitrary and capricious action.'" 192 According to Justice Glass, the Connecticut Constitution, by contrast, did not appear to tolerate any "capriciousness in the application of the death penalty." 193

In 1998, in People v. Bull, Justice Moses Harrison II wrote a sharply-worded dissent that called for an end to Illinois' death penalty based largely on the exoneration of nine Illinois death row inmates in as many years. 194 Justice Harrison did not mince words: "Innocent persons are going
to be [*553] sentenced to death" and would "inevitably … be executed in Illinois" in violation of the federal and state constitutions. 195

Characterizing this line of argument as an "inexplicable attack" on fundamental principles and a "strident protest … against the concept of the Anglo-American criminal trial itself," the majority's response was, in effect, to let the defendant eat cake. 196 "Have mistakes been made? Will
mistakes be made? Certainly," said the court. 197 But since the "defendant does not suggest a substitute for this system," the "inevitable execution of innocent persons" was not the court's problem. 198 The majority opinion, and a separate concurrence authored by three Justices in the
majority, rebuked Justice Harrison for "elevating personal beliefs above thoughtful constitutional analysis," abandoning "judicial restraint and deference to legislative judgments," and "impugning the integrity of other members of the court." 199 Undeterred, Justice Harrison reflected:

Just as the execution of an innocent person is inevitable, it is inevitable that one day the majority will no longer be able to deny that the Illinois death penalty scheme, as presently administered, is profoundly unjust. When that day comes, as it must, my colleagues will see what they have
allowed to happen, and they will feel ashamed. 200

In 2005, in Moore v. Parker, Judge Boyce F. Martin, Jr. of the Sixth Circuit enumerated various criticisms of the death penalty, including unreliability, "blatant racial prejudice," "incomprehensible arbitrariness," "bad lawyering," pro-death penalty bias among juries and elected judges, and
U.S. exceptionalism among western democracies. 201 Acknowledging his "oath … to apply the law as interpreted by the Supreme Court of the United States," 202 Judge Martin declined to declare the death penalty unconstitutional, but forcefully argued that it was:

arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair… . Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general
deterrence, is not served when guided by such [*554] irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel. 203
Reflecting on his over twenty-five years on the bench, Judge Martin concluded that "the idea that the death penalty is fairly and rationally imposed in this country is a farce." 204

Less than six months later, Washington Supreme Court Justice Charles W. Johnson, joined by Justices Richard B. Sanders, Susan Owens, and Barbara Madsen, similarly argued in dissent that Washington's death penalty was "arbitrarily or capriciously" imposed in violation of Furman. 205
Pointing to life sentences received by three of "the worst mass murderers in Washington's history," who were collectively responsible for killing seventy-four people, Justice Johnson concluded that the "death penalty is like lightening … . No rational explanation exists to explain why some
individuals escape the penalty of death and others do not." 206 While stopping short of finding the death penalty unconstitutional per se, Justice Johnson's opinion strongly implied that "the arbitrariness with which the penalty of death is exacted" was incapable of remedy. 207

More recently, in 2014, federal district court Judge Cormac Carney held that the extraordinary, decades-long delay that precedes execution in California rendered its death penalty arbitrary and devoid of penological purpose in violation of the Eighth Amendment. 208 Although Judge
Carney did not reach whether California's death penalty was per se unconstitutional, 209 his opinion suggested that California's death penalty could not be rationally carried out, given the inherent tension between efficiency and accuracy. 210

In March 2016, in holding that Alabama's death penalty procedures violated the defendants' Sixth Amendment right to a jury trial in light of [*555] Hurst v. Florida, 211 state trial court Judge Tracie Todd offered a harsh critique of Alabama's administration of the death penalty more
generally. 212 Pointing to bias in the elected judiciary, unqualified defense counsel, and inadequate funding of the judicial branch, Judge Todd concluded:

There is a time and place for diplomacy and subtlety. That time and place has been expunged by the dire state of the justice system in Alabama. It is clear, from here on the front line, that Alabama's judiciary has unequivocally been hijacked by partisan interests and unlawful legislative
neglect … . As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner. 213

And in December 2016, after conducting a two-week evidentiary hearing on the constitutionality of the Federal Death Penalty Act, federal district court judge Geoffrey Crawford concluded that the Act

falls short of the standard required in Furman v. Georgia and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the [Act] operates in an arbitrary manner in which chance and bias play leading
roles. 214

Conceding that "Gregg is still the law of the land," Judge Crawford denied the defendant's motion to dismiss the death penalty, but stated that "the time has surely arrived to recognize that the reforms introduced by Gregg and subsequent decisions have largely failed to remedy the
problems [*556] identified in Furman." 215

III. The Right Side of History

Is the death penalty acceptable to contemporary society? Is it defensible as a matter of deterrence or

retribution? Is the death penalty consistent with human dignity? Eventually, the U.S. Supreme Court
will follow the path laid down by federal and state judges for the past half-century and answer each of
these questions in the negative. 216
This, in turn, gives rise to perhaps the most salient question of all: even if the death penalty is unacceptable, devoid of penological purpose, and a violation of
dignity, should the U.S. Supreme Court be the one to get rid of it? Will doing so be the culmination of the U.S. Supreme Court's dignity jurisprudence - a rejection of
American exceptionalism on the world stage and a ringing endorsement of the most universal dignity, the right to life itself? 217 Or will it instead represent a
stunning blow to our democracy - a rejection of judicial self-restraint akin to Lochner v. New York. 218 Will judicial abolition make us "the Nation we aspire to be,"
219 or a nation that has lost its way?

The right side of history, or the wrong side?

For an answer to that question, one might look to the example of slavery. The
U.S. Supreme Court did not abolish slavery or even
seriously question its constitutionality. 220 It certainly could have. In 1771, in his charge to a grand jury at a session of the
North Carolina Superior Court, colonial judge Martin Howard remarked on the inconsistency between the institution of slavery and the idea that "all men are by
nature equal and by nature free." 221 [*557] Slavery, he argued,

is an adventitious, not a natural state. The souls and bodies of negroes are of the same quality with ours - they are our fellow creatures, tho' in humbler
circumstances, and are capable of the same happiness and misery with us… . I am content it should be said, that these observations proceed more from the heart
than the understanding, at the same time I shall ever suspect the soundness of that understanding which has no mixture of humanity. 222

Similarly, in 1783, in his instructions to a jury in a case involving the beating of an enslaved man, Chief Justice William Cushing of the Massachusetts Supreme
Judicial Court concluded that slavery was at odds with the Massachusetts Constitution's declaration "that all men are born free and equal." 223 According to
Cushing:

Whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of
America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or
shape of noses - features) has inspired all the human race. 224

Instead of following the lead of these judges, the Supreme Court in Dred Scott v. Sandford did precisely the opposite, invalidating a federal law that would have
restricted the expansion of slavery and thus fortifying slavery's hold on the Nation. 225

History has not been kind to slavery. Between 1865 and 1867, historian, congressman, newspaper editor, and antislavery advocate Horace
Greeley published The American Conflict, a 1400-page, two-volume treatise on the abolition of slavery. 226 It is a harsh indictment of the institution. 227

[*558]The death penalty - which Greeley and other anti-slavery advocates also opposed 228 - is not yet history. But
it will be. Although none of us can know for sure how history will judge the death penalty, odds are good that the death penalty will
come to be seen as one of the worst indignities our Nation has ever known, and that a Supreme Court
decision abolishing it will, in time, be widely accepted as right . Odds are also good that many of us alive today will be there
when history is made.

IV. Conclusion

Abolition of the death penalty is inevitable. Power, not principle, sustains it , 229 and principle, not
power, will eventually end it. 230 Applying three themes that have characterized death penalty abolition in the Western world, this Essay: has
argued that the
end of the death penalty hinges on the Supreme Court's willingness to defy public opinion
and live up to history's demands.

When the Supreme Court abolishes the death penalty, the Court will not be going it alone . This Essay: has gathered
the opinions of federal and state judges who have advocated abolition of the death penalty for over the past half-century. These decisions
form a coherent body of law - the "law of abolition" - on which the Supreme Court should rely .

[*559] The Court's decision to abolish the death penalty will not be easy ; one vote will most likely separate abolition from
retention. Nor will the decision be popular; indeed, abolition has never been the result of popular

demand. 231 But, as this Essay: has argued, it will, in time, almost certainly be regarded as right .

Only abolishing the death penalty can remedy the state’s racist murder of innocents
Bessler, 16 --- Associate Professor, University of Baltimore School of Law (John D., “ARTICLE: The
Inequality of America's Death Penalty: A Crossroads for Capital Punishment at the Intersection of the
Eighth and Fourteenth Amendments,” 73 Wash. & Lee L. Rev. Online 487, Nexis Uni via Umich Libraries,
JMP)

V. The Need for Equal Protection of the Laws: From Discrimination and Arbitrariness to Abolition and the
Protection of Universal Rights

The basic rule of equal protection is that persons "similarly situated with respect to the legitimate
purpose of the law must receive like treatment." 246 The purpose of the Fourteenth [*555]
Amendment's Equal Protection Clause--it has been written--is "to secure every person within the State's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a
statute or by its improper execution through duly constituted agents." 247 In that regard, the Equal
Protection Clause is, logically, an ideal vehicle for enforcing universal rights, such as the rights to be free
from torture, cruelty and discrimination. 248 No one, not even prisoners, are to be subjected to torture
or gratuitous cruelty, and similarly situated offenders should be treated alike under the law. 249 The
death penalty, it is [*556] true, has been a fixture of American life since colonial days. But the legal
landscape--both in the U.S. and abroad--is changing rapidly, if not at lightning speed. 250 While a U.N.
effort seeking a global moratorium on executions is gaining momentum, 251 American anti-death
penalty advocacy has been focused in the courts and on the state level--and with some successes, with
courts declaring certain practices to be unconstitutional 252 and with six states abolishing the death
penalty since 2000. 253

While the U.S. Supreme Court has held that race and gender discrimination are unconstitutional in a
series of cases, 254 it has yet to effectuate the Fourteenth Amendment's dictates in the [*557] context
of America's death penalty system. Thus, in McCleskey, the Supreme Court held that the Baldus study,
the statistical study showing discrimination in Georgia's death penalty system, was "clearly insufficient"
to support an inference that any of the decisionmakers in that particular criminal case "acted with
discriminatory purpose." 255 In minimizing the role of race in death penalty adjudications writ large and
rejecting Warren McCleskey's Eighth Amendment and Fourteenth Amendment equal protection claims,
a bare majority of the Supreme Court sidestepped the Baldus study's alarming findings by concluding:
"Statistics at most may show only a likelihood that a particular factor entered into some decisions. There
is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are
similar risks that other kinds of prejudice will influence other criminal trials." Ultimately, the Court in
McCleskey determined that the presence of that risk of racial prejudice was not "constitutionally
unacceptable." 256

In reaching its decision, the Court in McCleskey touted the "substantial benefits" of discretion. 257
Although it determined that the Baldus study "indicates a discrepancy that appears to correlate with
race," the Court nonetheless found that "[t]he discrepancy indicated by the Baldus study is 'a far cry
from the major systemic defects identified in Furman.'" 258 The Court in McCleskey then made this
slippery slope argument:

[I]f we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing
decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim
that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based
on unexplained discrepancies that correlate to membership in other minority groups, and even to
gender. 259

As Justice Powell, in extending his slippery slope argument, continued:

[*558] Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If
arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim
could--at least in theory--be based upon any arbitrary variable, such as the defendant's facial
characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study
indicates may be influential in jury decisionmaking. 260

But McCleskey wasn't about a defendant's physical attractiveness; it was about a man's life. And in the
modern era, the death penalty's legitimacy has been corroded by the punishment's arbitrary, errant,
and highly discriminatory application. Indeed, many people now see capital punishment--and
increasingly and properly so--as violating basic and fundamental human rights, including the right to life
and the rights to be free from torture and cruelty. The International Covenant on Civil and Political
Rights, a widely ratified international treaty, itself expressly provides that "[n]o one shall be arbitrarily
deprived of his life." 261 The language of that treaty, put in place in 1966, thus makes clear that the
arbitrary infliction of death sentences has been a violation of international law for fifty years now. 262
While the treaty's use of the masculine--"his"--reflects its 1960s vintage and that executions have long
been used mainly to kill men, the death penalty's arbitrary and discriminatory character (which a
number of U.S. Supreme Court Justices spoke of in 1972 in Furman v. Georgia 263) has yet to be
remedied. 264

Not only does the arbitrary infliction of death sentences violate long-standing international law
principles, but the death [*559] penalty should be found to be a torturous punishment 265 and to
violate existing American constitutional law as well. 266 In fact, just as the Convention Against Torture
now prohibits acts of torture and cruelty, 267 the U.S. Constitution's Fourteenth Amendment has long
forbidden arbitrary, discriminatory, and excessive punishments, 268 with the U.S. Supreme Court [*560]
articulating the Equal Protection Clause's scope in a series of cases. 269 "When those who appear
similarly situated are nevertheless treated differently," the U.S. Supreme Court has ruled, "the Equal
Protection Clause requires at least a rational reason for the difference, to ensure that all persons subject
to legislation or regulation are indeed being 'treated alike, under like circumstances and conditions.'"
270
For fundamental rights, such as the right to be free from racial discrimination, the U.S. Supreme Court
naturally imposes heightened protection, subjecting such laws to "strict scrutiny." Though the Supreme
Court, in McCleskey, gave short shrift to the statistics demonstrating racial bias (something Justice Harry
Blackmun pointed out in his dissent), 271 it is clear that the rights to be free from torture, cruelty, and
discrimination are fundamental ones and must be respected and protected. 272 The [*561] right to
equality, like the right to be free from cruelty and torture, is itself a universal right. 273 The right to
equal treatment under the law used to be, as noted earlier, more rhetoric than reality, especially since
Thomas Jefferson's Declaration of Independence, which speaks of the equality of men, was promulgated
in an era of slavery and overt racial and gender discrimination. But Jefferson's lofty rhetoric is,
increasingly, being actualized in the United States, with the U.S. Supreme Court's decision in Obergefell
v. Hodges, 274 for example, guaranteeing same-sex couples the right to marry. 275

It is clear--as Professor Goldfarb aptly notes--that "capital punishment has been reserved primarily for
those convicted of killing white people" and is "disproportionately" imposed on men, especially those
who victimize whites such as the innocents Joe Giarratano was convicted (perhaps falsely) of murdering.
The first recorded execution of a woman in what is now the United States--that of Jane Champion--took
place in Virginia in 1632, and in America women represent only a small percentage, 2.5 percent, of all
persons executed by state and local authorities since 1608. 276 Justice Thurgood Marshall himself once
recognized [*562] the "overwhelming evidence that the death penalty is employed against men and
not women." After taking notice of that fact, Justice Marshall observed: "It is difficult to understand why
women have received such favored treatment since the purposes allegedly served by capital
punishment seemingly are applicable to both sexes." 277

But in her essay, Professor Goldfarb offers a compelling explanation for why women (at least those
whose conduct conforms to traditional gender stereotypes) are less harshly punished, an explanation
rooted in society's history of patriarchy and the "chivalrous norms" associated with the treatment of
women. 278 Her essay also explains why men who kill women, especially black men who kill white
women, have long received the law's harshest treatment and are sentenced to death. Men who kill
women have not only failed to protect, they have murderously harmed, the members of society whom
earlier generations of Anglo-Americans once called "the weaker sex." 279 As Goldfarb adds after
studying American executions and Giarratano's death sentence and laying out preexisting race, gender
and class stereotypes and ideologies: "Inflicting harsh punishment, including death sentences, in
situations like these supports the status quo and its multiple intersecting hierarchies, allowing chivalrous
impulses to be expressed primarily against poor men, men of color, and other men lacking in social and
material power." 280

The gross inequalities associated with capital punishment have long been clear, though the U.S.
Supreme Court has been [*563] slow to recognize them. The death penalty's "original sin," law
professors Carol Steiker and Jordan Steiker write, tracing executions from colonial days through today, is
"the stain of racial discrimination." 281 As they explain of the death penalty's close and inerasable
association with slavery:

[T]he large increase in executions, especially of blacks, in the South during the eighteenth century was
the direct result of the large influx of African slaves to that region. As the South's slave labor economy
grew, so did the demand by slave owners for state assistance in disciplining the growing enslaved
population, to promote economic productivity and to protect the increasingly outnumbered white
population from much-feared slave violence or revolt. 282

"The extent to which capital punishment for slaves was perceived as a public good," they write, "is
demonstrated by the provision of state compensation to the owners of executed slaves, in the same
way that property owners today are compensated when their land is taken by the state for a public use
such as a highway." 283 In other words, human beings as property; to be disposed of--in the language of
that era--as "chattels." 284

For far too long, the U.S. Supreme has ignored the realities of discrimination associated with death
sentences and executions. When America's death penalty came under attack in the 1960s and 1970s, it
was the NAACP's Legal Defense and Educational Fund that led the campaign. 285 In cases that came
before the Supreme Court, leading civil rights organizations--from the NAACP and the National Urban
League to the Southern Christian Leadership Conference, the Mexican-American Legal Defense and
Educational Fund, and the National Council of Negro Women--submitted or joined amici briefs. "The
total [*564] history of the administration of capital punishment in America, both through formal
authority, and informally," the NACCP argued in one submission, "is persuasive evidence, that racial
discrimination was, and still is, an impermissible factor in the disproportionate imposition of the death
penalty upon non-white American citizens." 286 Yet, as the Steikers so cogently explain:

Despite ample ammunition in the amicus briefs, none of the justices seemed willing to offer a detailed
history of the role of race in shaping capital statutes and practices for over 200 years; Justices Douglas
and Marshall, the only two justices who addressed race at all, both stopped short of placing the
practice in its historical, slavery-rooted context. 287

This was, clearly, a missed opportunity, though the Supreme Court undoubtedly made a conscious
decision at the time to play down the issue of racial discrimination in the death penalty's administration.
In their thoughtful and compelling book, Courting Death: The Supreme Court and Capital Punishment,
Carol Steiker and Jordan Steiker offer this analysis: "The Court's deafening silence on the subject of race
in its foundational capital punishment cases is striking but, on reflection, perhaps not altogether
surprising. Ample reasons of various kinds--strategic, institutional, ideological, and psychological--help
explain what otherwise might appear to be a baffling obtuseness." 288 "In light of the Court's ongoing
role in the school desegregation battle," they observe, "it is no wonder that Chief Justice Warren, the
architect of the Court's unanimous opinion in Brown, hesitated to add capital punishment to the
simmering pot of racial issues." 289 "The Warren Court's desegregation rulings and its criminal
procedure revolution," they add, "already seemed to target Southern institutions, and these decisions
engendered substantial backlash in that region." 290 "A race-based abolition," they conclude, "would
have amounted to an acknowledgment that the effects of institutionalized racism could not be erased
by constitutional intervention--the very last message that the [*565] Supreme Court wanted to send in
the era of constitutionally mandated school desegregation and criminal procedure reform." 291

But in this second decade of the twenty-first century, the U.S. Supreme Court now finds itself at a
crossroads as regards the punishment of death. It can let it continue, or it can say no more--no more
will the United States of America engage in state-sanctioned killing. "The most profound consequence
of the Court's failure to address the issue of race in its capital jurisprudence," the Steikers aptly note, "is
that the unjust influence of race in the capital punishment process continues unchecked." 292 As they
explain in their book:
More broadly, the Court's failure to address forthrightly the death penalty's racialized history and
current practice has disserved the Court in its role as chronicler of history and social and political
practices. Had the Court framed its constitutional regulation of capital punishment against the backdrop
of antebellum codes, lynchings, mob-dominated trials, and disparate enforcement patterns, the Court
would have done a much better job of explaining why the American death penalty deserved the
sustained attention of the American judiciary. This would have been true even if the Court ultimately
had framed its doctrines in nonracial terms. 293

VI. Conclusion

The death penalty's racial and gender bias is clear. 294 Congressman John Conyers once took note of the
"gender [*566] discrimination" associated with capital sentencing, 295 and Professor Elizabeth
Rapaport--a law professor at the University of New Mexico School of Law--has written of the "chivalrous
disinclination to sentence women to die." While articulating her "chivalry" theory, she simultaneously
posits an "evil woman" hypothesis to explain "the gender stereotyping that has historically dehumanized
despised female murderers" and resulted in their execution when they violate "sex role expectations"
(e.g., by killing their children or husbands). 296 The Washington, D.C.-based Death Penalty Information
Center, documenting the racial prejudice in the death penalty's administration, also cites study after
study showing that killers of whites are much more likely to be sentenced to death than killers of
blacks. In the modern era, the statistics for those [*567] executed for interracial homicides are
particularly telling. While 20 people have been executed for interracial homicides involving a white
defendant and a black victim, an exponentially higher number of people--282--have been executed
where the defendant was black and the victim was white. 297

Such discrimination calls for a remedy, and in the case of the death penalty, the only remedy that will
suffice is the death penalty's abolition. In "Matters of Strata," Professor Goldfarb emphasizes that
"when race, gender, and class play an explanatory role in decisions about who receives a death
sentence, under the Supreme Court's death penalty jurisprudence those decisions constitute cruel and
unusual punishment in violation of the Eighth Amendment." 298 And her perceptive essay, in tracing
Joseph Giarratano's case and the ideologies and long history of discrimination undergirding the death
penalty that "undermine" its legitimacy, 299 makes clear that, as a society, we need "to find other
approaches." 300 Just as the U.S. Supreme Court, in Shelley v. Kraemer, 301 held in the 1940s that
judicial enforcement of restrictive covenants attempting to bar minorities from ownership or occupancy
of real property violated due process and equal protection principles, a wholly arbitrary and
discriminatory death penalty regime--one still in place in the twenty-first century--should not be
tolerated. 302 A government [*568] should not involve itself with such a cruel and torturous
punishment--one that, throughout American history, has been imbibed with racial discrimination,
gender inequities, malice and hatred, and lottery-like arbitrariness. 303

In their 2015 dissent in Glossip v. Gross, 304 Justice Stephen Breyer--joined by Justice Ruth Bader
Ginsburg--called for a "full briefing" on whether capital punishment violates the Eighth Amendment and
concluded that it is "highly likely" that it does. 305 In a subsequent speech in Chicago, Illinois, Justice
Ginsburg--in talking about their dissenting opinion in Glossip--specifically highlighted the death penalty's
arbitrariness, telling her audience: "Factors that should not affect imposition of the death penalty,
studies documented, often do, prime among those factors, race and geography." 306 "Ultimately," she
said, "the considerations Justice Breyer discussed at length may bring us back to the years 1972-76,
when no executions took place in the United States." 307 Already, the American death penalty is
actively [*569] used in only a small fraction of U.S. counties. 308 As Emily Bazelon wrote for the New
York Times Magazine in 2016: "A new geography of capital punishment is taking shape, with just 2
percent of the nation's counties now accounting for a majority of the people sitting on death row." 309

In State v. Santiago, 310 the Connecticut Supreme Court declared that state's death penalty
unconstitutional. In doing so, it held that "the eighth amendment is offended not only by the random or
arbitrary imposition of the death penalty, but also by the greater evils of racial discrimination and other
forms of pernicious bias in the selection of who will be executed." 311 As that court emphasized:
"Unfortunately, numerous studies have found that '[e]rrors can and have been made repeatedly in the
trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct,
or simply the presentation of erroneous evidence.'" 312 "A study of all death sentences in the United
States in the two decades following Furman," it pointed out, "found 'extremely high error rates' . . . ;
with at least two thirds of capital sentences eventually overturned on appeal." 313 "Statistical
analyses studies," it added, "have demonstrated to a near certainty that innocent Americans have been
and will continue to be executed in the post-Furman era." 314 As the court concluded after compiling
all of the evidence: "To the extent that the ultimate punishment is imposed on an offender on the basis
[*570] of impermissible considerations such as his, or his victim's, race, ethnicity, or socio-economic
status, rather than the severity of his crime, his execution does not restore but, rather, tarnishes the
moral order." 315

Hopefully, the U.S. Supreme Court will soon follow suit, looking to the jurisprudence of the Supreme
Court of Connecticut and other judicial systems around the world that have already outlawed the
punishment of death. Way back in 1995, South Africa's Constitutional Court--in the wake of apartheid's
demise--declared the death penalty to be unconstitutional as a "cruel, inhuman or degrading"
punishment. 316 Ironically, the President of the Court, Arthur Chaskalson, in writing for South [*571]
Africa's highest court, looked to the reasoning of an American case--Furman v. Georgia--to support the
propositions that "[a]t every stage of the process there is an element of chance" and that "poverty, race
and chance play roles in the outcome of capital cases and in the final decision as to who should live and
who should die." 317 If the present-day U.S. Supreme Court would only return to its own roots--
Furman's denunciation of the death penalty as a violation of the Eighth and Fourteenth Amendments
318 --the American legal system could finally uproot a barbaric, discriminatory practice rooted in the
Dark Ages and the institution of slavery.
Case
 Death Penalty => Torture / Non-Derogable Right

Death sentences are torturous threats of death and the right to be free from torture is
a universal, non-derogable right
Bessler, 19 --- Associate Professor at University of Baltimore School of Law (Summer 2019, John D.,
“Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the
Collateral Consequences for Capital Punishment,” 11 Ne. U.L. Rev. 1, Nexis Uni via Umich Libraries, JMP)

[*3] I. Introduction

The modern definition of torture makes clear that torture can be either physical or psychological in
nature. 1 The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which entered into force in 1987 2 and which the U.S. ratified in 1994, defines torture in
just those terms. 3 In particular, that convention defines torture as "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person" for a prohibited purpose,
such as to obtain a confession or to punish. 4 The Inter-American Convention to Prevent and Punish
Torture likewise defines torture "to be any act intentionally [*4] performed whereby physical or mental
pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of
intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose."
5

Death threats, because of their unlawful and invidious nature 6 and their potentially coercive effects,
normally have significant, adverse legal consequences. 7 They may result in the evidentiary exclusion of
confessions obtained through such means, 8 amount to persecution, 9 or lead to civil liability, whether
for intentional [*5] infliction of emotional distress ("IIED"), 10 by creating a hostile work environment,
11 or otherwise. 12 For example, threats of murder 13 [*6] or putting a gun to one's head as part of a
threat to kill can be compelling evidence of past persecution. 14 Death threats can also lead to the
dismissal of a civil case, 15 result in criminal prosecutions and convictions, 16 show consciousness of
guilt for an underlying [*7] offense, 17 create a conflict of interest, 18 and lead to aggravated
sentences. 19

Because of their severity, credible death threats have been found to be torturous in nature, 20 with the
Convention Against [*8] Torture itself barring the use of any statement made as a result of torture. 21
The right to be free from torture is a universal, non-derogable right, 22 and not even prisoners or
heinous offenders can be subjected to torturous treatment or punishment. 23 As both [*9] the
Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights
("ICCPR") make clear: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment." 24 While courts have not always found death threats to be credible or to amount to
torturous conduct, 25 threats that place individuals in great fear can (and often have been found to)
constitute acts of mental or psychological torture. 26

With credible death threats producing psychological terror already treated as torturous in nature, this
article explores what the collateral consequences are for capital prosecutions and death sentences. 27
After all, death threats are ordinarily unlawful 28 and [*10] capital charges and death sentences are, at
bottom, nothing more than state-sponsored threats of death. 29 While the Convention Against Torture
has a "lawful sanctions" exception to torture, 30 and while the death penalty remains on the books in
certain nations and locales at this point in time, 31 if death threats, because of their immutable
characteristics, qualify as acts of torture, then that fact should logically have serious implications for
death penalty jurisdictions. The world's nations, by signing and ratifying the Convention Against Torture,
have collectively agreed to prevent and criminalize torture in all forms. 32 Indeed, torture has, for
decades, [*11] been universally prohibited by international law and been seen by U.S. courts as a
clear violation of the "law of nations." 33

Although judges seem to have no difficulty identifying and condemning physical torture, 34 they have
been more reticent to recognize psychological forms of torture, at least in certain contexts. 35 This
article argues that twenty-first century jurists need, at long last, to take psychological torture seriously.
And in the death penalty [*12] context, that means recognizing capital prosecutions and death
sentences for what they are: torturous threats of death. 36 Death threats and mock executions, both of
which inflict trauma and severe pain and suffering, are already classified as psychological torture, 37 and
many sources, 38 including a U.N. guide to investigating torture, [*13] list varieties of mental torture
(e.g., "Threats of death, harm to family, further torture, imprisonment, mock executions"; "Threats of
attack by animals, such as dogs, cats, rats or scorpions"; and "Forcing the victim to witness torture or
atrocities being inflicted on others."). 39

Part II of this article describes the illegality of death threats, highlighting how credible death threats are
ordinarily treated as criminal, tortious, or torturous acts. 40 The article then describes the process by
which the death penalty is administered, laying out the collateral consequences for capital punishment
of credible death threats already being classified as illegal and as unlawful acts of torture. Part III thus
details the process by which capital charges are leveled and death sentences are sought, obtained, and
carried out. That section reveals that threats to execute offenders are, in effect, nothing more than
torturous threats of death, albeit ones made by state actors in a particular context. Finally, Part IV
argues that, given the absolute and existing legal prohibition against psychological torture, lawyers
and judges should no longer tolerate, or be complicit with, criminal justice systems that make use of
death threats of whatever kind or nature. Because death threats are already properly classified as
torturous acts in multiple contexts, including [*14] in the context of torture-murder prosecutions, the
use of death threats as part of any crime and punishment regime is inconsistent with human rights
principles. 41 The article concludes that the death penalty should be classified under the rubric of
torture.

Death penalty is a form of psychological torture --- comparatively much worse than
the murder initially committed
Bessler, 19 --- Associate Professor at University of Baltimore School of Law (Summer 2019, John D.,
“Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the
Collateral Consequences for Capital Punishment,” 11 Ne. U.L. Rev. 1, Nexis Uni via Umich Libraries, JMP)

VI. Conclusion

The psychological torture associated with capital punishment is self-evident and undeniable. Death
threats have long been recognized as a form of torture, and there is no denying that the death penalty
involves the use of death threats and worse (i.e. actual executions). Capital punishment, in truth, is a
torturous practice hiding in plain sight. It has been used for centuries, with jurists in the past only
occasionally, as in People v. Anderson, 397 taking note of its torturous nature. In the eighteenth century,
Enlightenment thinkers thought of torture and capital punishment in separate categories. When the
Italian philosopher Cesare Beccaria, the anti-death penalty pioneer, wrote in Dei delitti e delle pene
(1764) about torture and capital punishment, he did so in separate chapters. Jeremy Bentham, the
English criminal-law theorist, also conceptualized and compartmentalized torture and punishment as
separate practices. 398 In writings not published in his lifetime, Bentham infamously justified the use of
torture on the basis of utilitarianism, with pre-trial [*95] judicial torture frequently thought of in the
civil law context as necessary to procure confessions (with post-conviction torture then used to discover
the names of accomplices). 399 But it is now crystal clear, as confirmed by the text of the Convention
Against Torture, that punishments themselves can be torturous in nature. And whereas torture was
largely seen in Beccaria and Bentham's time as operating on the body, it is now clear that either physical
or mental torture is possible--and that both are strictly prohibited .

In reality, capital punishment has always been torturous, even if it was more torturous in Medieval
times when offenders were disemboweled and drawn and quartered or burned or boiled alive 400
instead of being put to death through lethal injection. 401 Before Furman v. Georgia, 402 the California
Supreme Court--in a telling admission--candidly opined in its 1972 decision in People v. Anderson: "The
cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also
in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial
and administrative procedures essential to due process of law are carried out." 403 "Penologists and
medical experts agree," that court determined, "that the process of carrying out a verdict of death is
often so degrading and brutalizing to the human spirit as to constitute psychological torture." 404
"When people on death rows are waiting to die," the wrongfully convicted boxer Rubin "Hurricane"
Carter stressed after his own exoneration, "it is easy for me to feel exactly what they are going through:
the torture of waiting, the [*96] helplessness, the pain and humiliation, and the gagging death, the
obliteration." 405 "It is real torture," Oklahoma death row inmate, Richard Glossip, similarly observed
from first-hand experience after his execution was delayed at the last minute after he spent 50 days in a
windowless cell getting ready for his scheduled execution. "You are just in that cell and it is just like a
morgue," Glossip reported. 406

It is hypocritical for governments and state officials to condemn the use of death threats, then turn
around and use threats of death as part of a misguided policy that, in all candor, strays into the land of
torture. It is also hypocritical for the judicial system to avoid labelling death sentences and executions as
torturous when various non-lethal acts (and properly so) are already so characterized. 407 When a
person is murdered and the victim is aware of, but helpless to prevent, death, American courts readily
label the offender's actions as involving an act of extreme cruelty (i.e. torture). 408 Yet, when it is the
offender who is aware of, but helpless to prevent, his or her own death, the judicial system currently
terms it a "lawful sanction." Just as governments should not tolerate individuals making death threats,
societies should not themselves resort to Orwellian or Kafkaesque death threats. As Albert Camus
warned against state-sanctioned killing and the death penalty's disproportionality in relation to acts of
criminality in "Reflections on the Guillotine":

[*97] For there to be equivalence, the death penalty would have to punish a criminal who had warned
his victim of the date at which he would inflict a horrible death on him and who, from that moment
onward, had confined him at his mercy for months. Such a monster is not encountered in private life.
409
 AT: New Executions Will Get Tied Up In Courts

The Administration will appeal lower court stays on federal executions

Lynch, 12/2/19 (Sarah N., “Trump administration asks top court to allow it to resume federal
executions,” https://www.reuters.com/article/us-usa-court-deathpenalty/trump-administration-asks-
top-court-to-allow-it-to-resume-federal-executions-idUSKBN1Y628Q, accessed on 4/15/2020, JMP)

WASHINGTON (Reuters) - The U.S. Justice Department on Monday asked the Supreme Court to allow
the resumption of the death penalty at the federal level after a 16-year hiatus, hours after an appeals
court blocked the department’s bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the
department’s request to overturn a judge’s decision that at least stalled plans for executing four
convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a
long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals
court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s
ruling.

In its application to the Supreme Court, the Justice Department called the district court’s position
“fundamentally flawed” and argued that the legal challengers’ case “wholly lacks merit.”

It was not immediately clear when the conservative-leaning Supreme Court would take up the case. Five
of the court’s nine justices were nominated by Republican presidents, including two named by President
Donald Trump.

Attorney General William Barr, appointed by Trump earlier this year, announced in July plans to resume
executions of people sentenced to death in federal cases.

Barr said at the time his department owed it to crime victims and their families to carry out sentences
imposed under the U.S. criminal justice system.
 AT: Death Penalty Decreasing

Federal government is expanding the number of death-eligible crimes --- these cases
are arbitrary, racially discriminatory and don’t even receive the same level of review
as state cases
ABA, 19 (7/25/19, American Bar Association, “Federal Government Seeks to Resume Executions After
Nearly Two Decades,”
https://www.americanbar.org/groups/committees/death_penalty_representation/project_press/2019/
summer/federal-government-seeks-to-resume-executions-after-nearly-two-d/, accessed on 4/14/2020,
JMP)

On July 25, 2019, Attorney General William Barr announced via press release the federal government’s
intention to “resume capital punishment” by scheduling executions for five federal prisoners. Although
the federal death penalty system has been in place since 1988, and 61 individuals are currently on
federal death row, there have only been three federal executions in the last five decades, the most
recent carried out in 2003. If the currently scheduled executions proceed as planned, the total number
of federal executions carried out by the United States in the modern death penalty era would nearly
triple in just one month.

In his statement directing the head of the Bureau of Prisons (BOP) to schedule the five executions,
Attorney General Barr directed the BOP to adopt an addendum to the current federal execution
protocol. The addendum specifies replacing the existing three-drug protocol, which has been the subject
of litigation in federal court since 2005, with a protocol using only a single dose of the drug
pentobarbital. Pentobarbital is currently used in lethal injections in Texas, Missouri, and Georgia. The
Justice Department has filed a copy of the addendum in the federal district court where the current
lethal injection protocol is being litigated, and the judge presiding over that lawsuit has set a discovery
schedule relating to the new protocol. However, the five people scheduled to be executed were not
parties to that litigation and--unlike the petitioners in that case--were not covered by stays of execution.
Although the discovery schedule extends well past the current December and January execution dates,
the government has opposed a request for stay of execution filed in connection with the lethal injection
litigation.

The move to kickstart federal executions has sparked nationwide debate, with many, including
prominent conservatives, criticizing the federal death penalty system as arbitrary, racially
discriminatory, and rife with many of the same counsel failures seen in state capital punishment
systems. Jared Olsen, Republican member of the Wyoming House of Representatives, wrote that “more
conservatives have come to realize that capital punishment conflicts irreconcilably with their principles
of valuing life, fiscal responsibility and limited government.” Experienced capital defense attorneys also
point out that federal death penalty cases do not receive the same comprehensive review as state
death penalty cases, noting that the U.S. Supreme Court has rarely heard federal death penalty cases on
appeal. This fact undermines the reliability of federal death penalty cases and limits opportunities for
prisoners to bring claims of ineffective assistance of counsel, which remains a persistent problem in both
state and federal death penalty cases.
As with state capital punishment systems, racial bias is a serious concern in the federal death penalty. In
1988, the Anti-Drug Abuse Act was passed, which allowed federal prosecutors to seek the death penalty
against individuals involved in certain drug trafficking activities. Studies today show that among all
defendants selected for capital punishment in prosecutions under this Act, 89% were either African
American or Hispanic. In 1994, the Federal Death Penalty Act expanded the list of federal death-eligible
crimes even further, allowing the federal government to prosecute more capital crimes that ordinarily
would have been handled by the states. As a result, scholars have found that a “disproportionate
number of federal death sentences are located in districts where the decision to prosecute federally
transformed the jury pool from predominantly black to predominantly white.”

The current administration has indicated its desire to expand the federal death penalty once again , to
make drug trafficking, domestic terrorism, mass shootings, and killing a state law enforcement officer
capital offenses under federal law. In 2017, the “Thin Blue Line Act,” which would make the killing of a
state law enforcement officer or first responder a death-penalty-eligible federal crime, passed the
House. At the same time, however, two bills to abolish the federal death penalty have been introduced
in Congress since 2016.

Death penalty has enough support to survive unless the Court rules it unconstitutional
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

[*331] Yet the situation for the death penalty is not as stark as abolitionists claim it to be. For one thing,
polls on the death penalty continue to show strong support for the practice. An October 2015 Gallup
poll indicated that a clear majority (61%) of American adults favor the death penalty and only 37%
oppose it. 120 True, these numbers represent a decline in support from the historic high of 80% in favor
in 1994. 121 But the 61% figure is comparable to the level of support in the early-to mid-1970s and the
late-1930s. 122 If anything, polling data suggest support for the death penalty is cyclical, and there is
little reason to think support for the death penalty will sustainably run below 50%, as it did briefly in
the late-1960s. 123

Support is still particularly strong in the places one might expect: the South and the West. For
example, an October 2015 poll conducted by The Oklahoman newspaper indicated that 67% of
Oklahomans favored the death penalty. 124 This is particularly significant given that the poll was
conducted only eighteen months after the problematic execution in that state of Clayton Lockett. 125
Strikingly similar numbers appear in Utah, where a November 2015 poll indicated that 67% supported
the death penalty for those convicted of aggravated murder and only 26% opposed capital punishment.
126 Even California has twice in the last five years affirmatively decided to retain the death penalty.
Referenda to end the death penalty there were defeated [*332] in both 2012 127 and 2016. 128
Significantly, the margin of victory was two points higher in 2016 than in 2012.

Moreover, even in those states that have recently de-commissioned the death penalty, there is some
amount of buyer's remorse. In Nebraska, Legislative Bill 268, passed over the Governor's veto on May
27, 2015, would have eliminated the death penalty in that state. 129 However, that repeal was stalled
by a successful campaign to put the issue to a referendum in November 2016. 130 On Nov. 8, 2016, the
death penalty was restored to Nebraska when 60.73% voted to repeal Legislative Bill 268. 131
Meanwhile, New Mexico Governor Lisa Martinez has asked the state legislature to pass a bill during the
2017 legislative session reinstating the death penalty in that state. 132 And Delaware's judicial
invalidation of the law, 133 based largely on the U.S. Supreme Court's decision in Hurst v. Florida, 134 is
susceptible to a legislative fix and it is too soon to rule out restoration.

[*333] It is also worth observing that even in non-death penalty states, support for the practice
remains high. For example, in Wisconsin, which eliminated the death penalty over 150 years ago, 46.6%
of voters still supported the practice as of 2013. 135 About a year before Connecticut eliminated its
death penalty, voters in that state still favored capital punishment by 48% to 43%. 136 Likewise, just
before it abolished its death penalty, a poll conducted by the Washington Post indicated that 60% of
adult Marylanders favored its retention. 137

Additionally, the statistics on the supposed rarity of the death penalty are not as stark as they might first
appear. Take for instance, the DPIC's technically correct claim that only two percent of U.S. counties
account for most of the inmates currently on death row. 138 It is not until seven pages after that claim is
made that the DPIC acknowledges that those two percent of counties "represent … 24.7% of the U.S.
population." 139 That over half of death row comes from counties representing about a quarter of the
total U.S. population may be somewhat off-putting, but it is nowhere near the "two percent" claim.
Moreover, even the 24.7% figure is skewed, as it takes into account the entire country, even the
nineteen states with no death penalty. But of course no one currently on death row was sent there from
counties within those states. When only the population of death penalty states is used as the
denominator, [*334] the figure rises to a bit over 36%. 140 That is to say, counties that are home to
36% percent of the total population of the death penalty states are responsible for 56% of the
population of death row. 141 This is still somewhat disproportionate but it is hardly shocking.

Given these data, some informed conclusions, speculative as they might be, are in order. First, the death
penalty might be eliminated in several more states in the coming decades. Second, however, barring
some unexpected decree from the Supreme Court that capital punishment has become
unconstitutional, it will continue to live on in a good part of the country. Third, given the popularity of
capital punishment at the national level, and given the disproportionate representation of smaller
Southern and Western states in the U.S. Senate, the federal government will likely retain it for some
time to come. And finally, even where it has been eliminated, support for the death penalty remains
high.

Even if more states abolish the death penalty, federal capital prosecutions will
expand, even in the non-death states
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

IV. CONCLUSION: THE COMING FEDERALISM BATTLE

In both the short term and the long term, we can expect more federal capital prosecutions in non-death
penalty states. We can also expect more federalism based arguments by federal capital defendants
against this application of the death penalty. We have already begun to see these arguments in federal
district [*339] courts and at some point, federal appeals courts and perhaps the Supreme Court will
have to weigh in.

As discussed above, in the long-term, the federal death penalty will likely grow as capital punishment
recedes in the states. Short-term prospects for application of the federal death penalty in non-death
states appear similar. Recall that Attorneys General in the George W. Bush administration sought the
death penalty in non-death states nearly four times as often as those in the Obama administration:
thirty-nine versus ten. The very fact that the Justice Department is in Republican hands for at least the
next four years indicates that the numbers may again spike very soon.

Moreover, President Trump famously took out full page advertisements in the four major New York
newspapers in 1989 calling for New York to bring back the death penalty after five teenagers were
accused (and later convicted) of raping and nearly killing a woman in Central Park. 171 In October 2016,
despite virtually conclusive evidence that the five had been wrongly convicted, 172 Trump continued to
assert that they were guilty. 173 Attorney General Jeff Sessions has pointed to Trump's position in that
case as evidence that he "believes in law and order." 174 These sentiments perhaps signal that the use
of the federal death penalty will increase across the board in the next four years.

Even if executions are decreasing the federal reintroduction is step in wrong direction
Weissert, 19 (7/26/19, Will, “Resumed Federal Executions Raise Death Penalty's 2020 Stakes; The
Justice Department's announcement that it will begin executing federal death row inmates for the 1st
time since 2003 raises the political stakes of an issue that has rarely been a strength for national
Democrats,” https://www.usnews.com/news/politics/articles/2019-07-26/renewed-federal-executions-
raise-death-penaltys-2020-stakes, accessed on 3/14/2020, JMP)

When Dukakis and Clinton were running for president, there were roughly 300 new death sentences
annually nationwide, as opposed to around 40 today. Yearly executions peaked at nearly 100 in 1999
and have declined steadily ever since.

"It's shocking that, at this point, the federal government would be taking what feels like a giant step
backward," said Bee Moorhead, executive director of Texas Impact, a theological civil group that has
organized interfaith religious calls to abolish the death penalty in the state that executes more inmates
than any other. "It is in the mold of a bunch of other policies that are devoid of the concept of mercy in
a way that this country is just not used to."
 AT: Death Penalty Will be Abolished

Court is becoming more conservative --- locks in federal support for death penalty
Arango, 19 (4/7/19, Tim, “Democrats Rethink the Death Penalty, and Its Politics,”
https://www.nytimes.com/2019/04/07/us/politics/death-penalty-democrats.html, accessed on
3/24/2020, JMP)

Limiting executions, but not ending them

For all the shifts on the death penalty, its status now is defined by two things. The Supreme Court,
which determines its legality, seems firmly in favor of it. And at the state level, where prosecutors,
jurors and local courts administer the justice system, the number of death sentences and executions is
plummeting.

A very different Supreme Court declared executions unconstitutional in 1972, saying the arbitrary use of
capital punishment constituted “cruel and unusual punishment” under the Eighth Amendment. Four
years later, after states began remaking their death penalty systems, the court ruled that executions
could resume. (The first new federal death penalty statutes were approved in 1988.)

Executions soared during a period of high crimes rates in the 1980s and 1990s. The high point for death
sentences was 1996, when 315 people were condemned to die. In 1999, 98 people were executed, the
most in any year since 1976.

Since then, as crime has fallen, the number of new death sentences dropped to 31 in 2016, a modern-
era low, and 20 states have ended the practice .

In three important cases in recent years — in 2002, 2005 and 2008 — the court has narrowed the death
penalty’s scope, ruling that juveniles and those with intellectual disabilities can’t be executed, and
limiting the types of crimes — mostly only murder — that are eligible for a capital sentence.

But the court — with two new conservative justices appointed by Mr. Trump, Neil M. Gorsuch and Brett
M. Kavanaugh, and a 5-4 conservative majority — is seen as solidly behind the death penalty.

That was vividly illustrated by a bitterly divided recent case in which the court ruled by 5-4 to allow the
execution of an inmate in Missouri who said a rare medical condition would make him choke on his own
blood during his lethal injection.

Justice Gorsuch, writing for the majority, said the Eighth Amendment “does not guarantee a prisoner a
painless death.”

If President Trump is able to nominate additional justices who are confirmed, his successor’s influence
on the death penalty would be limited to enacting a federal moratorium, nominating district court and
appeals court judges and using the bully pulpit to make a case against capital punishment.
 --- EXT: Conservative Court

Court has a firm majority in favor of the death penalty – won’t revisit the issue
Ford, 18 (7/19/18, Matt, “America Is Stuck With the Death Penalty for (at Least) a Generation; With
Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go
local,” https://newrepublic.com/article/150036/america-stuck-death-penalty-at-least-generation,
accessed on 4/29/2020, JMP)

When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it,
the justices effectively took ownership of the American death penalty and all its outcomes. They have
spent the decades since then setting its legal and constitutional parameters, supervising its general
implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.

That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s
retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose
willingness to cross ideological divides made him the deciding factor in many legal battles. In cases
involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment
often meant the difference between life and death for hundreds of death-row prisoners.

“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,”
Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often
the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but
he was also often a fifth vote for determining that a particular death-penalty practice was
unconstitutional.”

The high court will likely continue to intervene in death-penalty cases that stray too far from the legal
mainstream. But without Kennedy, it will no longer be the venue for a systemic attack on capital
punishment as it had been in recent years. “It seems likely that there will be a firm, five-person
majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the
constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who
specializes in the death penalty, told me.

Gorsuch and Kavanaugh will prevent Court from abolishing the death penalty
Meltsner, 19 --- Professor of Law at Northeastern University Law School (8/5/19, Michael, “The
Return of the Federal Death Penalty,” https://www.jurist.org/commentary/2019/08/michael-meltsner-
death-penalty/#, accessed on 4/12/2020, JMP)

Justices like Kennedy and Stevens, opponents of the death penalty once expected abolition would come
from an eventual Supreme Court decision but confirmation of Trump’s nominees, Justices Gorsuch and
Kavanaugh, have dashed those hopes.
 AT: Death Penalty Good – Top Level

Death penalty fails to achieve goals --- several reasons

 rarely imposed or carried out
 delay in carrying out undermines stated goals
 residual uncertainty about prisoner’s guilt dilutes the punishment’s efficacy and distracts the
public from teaching moment

Covey, 12 --- Associate Professor, Georgia State University College of Law (Summer 2012, Russel D.,
Georgia State University Law Review,“Death in Prison: The Right Death Penalty Compromise,” 28 Ga. St.
U. L. Rev. (2013), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2696&context=gsulr,
accessed on 3/13/20, JMP)

II. “DEATH-IN-PRISON” SENTENCES WOULD BETTER SERVE PENOLOGICAL INTERESTS THAN THE
DYSFUNCTIONAL CONTEMPORARY DEATH PENALTY

The modern American death penalty is a “peculiar institution,” in more ways than one.8 Death penalty
supporters cite an array of justifications for keeping the institution, but after years of heated study and
debate, there remains little, if any, evidence that the death penalty actually serves any of those
purposes more effectively than alternate available punishments. While retribution and deterrence are
generally cited as the two principal justifications for the death penalty,9 other justifications frequently
invoked by supporters include the need for “closure” by family members and friends of the victim, the
need to express the moral indignation and outrage of the community, the need to educate citizens
about community norms and values, and the need to diffuse popular anger in order to foreclose resort
to vigilante justice by outraged community members.

Whether the death penalty could, in theory, provide these benefits under the right conditions is
debatable. What is not debatable is that, as currently practiced, the death penalty’s efficacy is deeply
compromised. The death penalty’s inability to achieve the penological goals its advocates identify can
be blamed on three features of modern capital punishment. First, the death penalty is very rarely
imposed, and when it is imposed, death sentences are very rarely carried out. Second, even when a
death sentence is both imposed and carried out, the typical period of delay between sentencing and
execution is so great that it undermines many of the stated purposes of capital punishment. Third,
regardless of whether death sentences ultimately are carried out, residual uncertainty about the
prisoner’s guilt, combined with substantial opposition to the use of the penalty, greatly dilutes the
punishment’s efficacy and distracts the public from what is intended to be a powerful and expressive
“teaching moment.” An ultimate sentence of death-in-prison, in contrast, would not suffer these
defects, and as a result would provide a better, fairer, and cheaper alternative than the dysfunctional
contemporary death penalty.
Independently, the death penalty has a traumatic impact on executioners and there’s
a good chance it can be botched
Thompson, 19 --- Former superintendent of the Oregon State Penitentiary (12/3/19, S. Frank, “I Know
What It’s Like to Carry Out Executions; The experience of participating in the state-sanctioned killing of
another human being has shaped me forever—and is why I believe this country should not pursue
federal capital punishment,” https://www.theatlantic.com/ideas/archive/2019/12/federal-executions-
trauma/602785/, accessed on 3/13/2020, JMP)

With all of the attention focused in Washington on impeachment, it might be easy to overlook that
Donald Trump’s administration is undertaking something momentous. Beginning on December 9 and
continuing in rapid succession over the following days and weeks, the government is hoping to carry out
the first federal executions in 16 years. Though a federal court recently issued a temporary injunction
stopping the executions, the government has appealed that decision, and may yet prevail.

When it comes to the death penalty, I speak from experience. I served as a correctional superintendent
in Oregon and as the warden of prisons in Arkansas. During my tenure, I carried out the only two
executions that have taken place in Oregon in the past 55 years. The experience of participating in the
state-sanctioned killing of another human being had a profound and traumatic effect on me, as well as
on other correctional officers and administrators, journalists, and the governor, John Kitzhaber.

My decades as a correctional professional and my direct experience with the administration of the death
penalty have left me firmly convinced that capital punishment is a failed government policy. That is why
I recently joined with more than two dozen other former correctional officers and hundreds of other
stakeholders in the criminal-justice system to call on the Trump administration to halt its planned
executions.

[Andrea Lyon: For Trump and Barr, executions are a statement]

The death penalty does not deter crime. It does not make our society safer. It is not imposed on “the
worst of the worst.” Yes, the individuals on death row committed serious crimes and should be severely
punished for their actions. But the men I have known who were sentenced to death were poor,
mentally ill, and severely abused. Executing them was just more injustice.

There is another significant reason not to move forward with federal executions, one that should matter
greatly to Trump: He would protect the men and women who work for the Federal Bureau of Prisons
from the devastating effects of participating in an execution. I still live with those effects. My colleagues
and I experienced long-term repercussions from the process of practicing, over and over, to kill
someone; from the stress and anxiety of worrying about a possible botched execution; and then, even
when things went “smoothly,” from the aftereffects of knowing that we had used our own hands, and
the power of our position, to take a human life. I had many sleepless nights following those executions.

The government’s proposed highly condensed execution schedule increases the chances of an error
occurring. Several other factors further heighten that risk. The federal government has not carried out
an execution in 16 years, and will be implementing a brand-new lethal-injection protocol. This is a
situation that calls for caution, with ample time for training and debriefing—not a rush to conduct
multiple executions in a short time. These concerns are reflected in the injunction order entered on
November 20, in which Judge Tanya Chutkan wrote: “The public is not served by short-circuiting
legitimate judicial process, and is greatly served by attempting to ensure that the most serious
punishment is imposed lawfully.” Additionally, the recent leadership change and chronic staffing
shortages at the Bureau of Prisons have contributed to an unsettled atmosphere and suggest that the
bureau’s resources might be better spent addressing the systemic issues it faces than carrying out
executions with a new protocol.

Read: The cruel and unusual execution of Clayton Lockett

I know many good, professional people who work at the Bureau of Prisons. They have undertaken
difficult and dangerous jobs, and they know and accept the challenges of managing dangerous prisoners.
From my decades of experience in this profession, I can say with confidence that the death penalty does
nothing to protect prison employees or other prisoners. Instead, it drains resources that could be used
for training, infrastructure improvements, rehabilitation, mental-health treatment, and other things
that actually make prisons safer.

Federal resources also would serve the general public better if they were redirected to meeting the
needs of the families and friends of the victims of homicides, while ensuring that the perpetrators were
safely housed in prison for the rest of their life. For all these reasons, the government should not bring
back federal executions.
 AT: Deterrence

Death penalty doesn’t deter crimes – evidence proves

Bala & Rizer, 18 --- *criminal justice senior fellow with the R Street Institute and a former Baltimore
public defender, AND **former federal prosecutor and served as a law enforcement officer for 20 years,
currently director of criminal justice and national security policy with the R Street Institute (4/5/2018,
Nila & Arthur, “Trump's death penalty for drug dealers proposal is bad policy,”
https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0406-dealer-death-20180404-story.html,
accessed on 4/18/2020, JMP)

If the reason for the death penalty is that it is a deterrent — that people will stop dealing drugs because
they might be executed — that reasoning is refuted by the evidence. States that impose the death
penalty have a higher murder rate than those that do not. Additionally, researchers have compared
murder rates before and after abolishing the death penalty, both within the United States as well as
abroad, and have found the threat of death seems to have little effect on behavior. States have been
executing fewer people over the last two decades, but the rates of violent crime have continued to fall
steadily.

Abolishing the death penalty will lower violent crime --- data proves
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.225-6, JMP)

We might thank more humane approaches toward criminal punishment for the decline in violent crime.
The “most significant and least appreciated development in the history of our species” may be the
global decline of human violence, argues psychology professor Steven Pinker in his book The Better
Angels of Our Nature.30 The larger forces at work may go beyond the death penalty. Pinker attributes
the decline in violence generally to a range of reasons, mostly having to do with a modern civilizing
process as humane ideas and practices increasingly bind us together and make a cycle of retaliation
untenable. Indeed, Pinker argues that the same human-rights ideas that may be eroding support for the
death penalty may also be causing this decline in violence. The data Pinker marshals to show the decline
in violence over time and across so many different types of societies help to explain why abolishing the
death penalty does not increase crime. Instead, abolition has accompanied declines in violent crime in
the countries that have abolished the death penalty. The reverse implication of this argument is that a
new fraying of the moral and economic bonds of the modern liberal state could increase violence. We
must work to ensure that the angels overcome the devils in our nature.

Doesn’t deter --- preponderance of quality evidence concludes affirmative

Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)
The reduction in death sentences and executions stems from volumes of data undermining the legitimacy of capital punishment. Studies on
race document that black defendants are more likely than white defendants to receive the death penalty in similar cases, 58 and that cases
involving white victims are more likely to result in the death penalty than those involving black or Latino victims. 59 Data on [*9] the financial
costs show that death penalty cases are more expensive than imposing life imprisonment. 60 Indeed, "[r]esearchers estimate that about four
percent of those sentenced to death are actually innocent," with documentation showing "a strong possibility that innocent individuals have
been executed." 61 Empirical studies similarly support the conclusion that no heightened deterrent effect is
achieved with capital punishment: "It is now widely accepted among top-flight empirical scholars that
not a single study credibly supports the view that capital punishment as administered anywhere in the
United States provides any added deterrent beyond that afforded by a sentence of life imprisonment." 62
It is no wonder that newspaper editorial boards and scholars repeatedly call for the death penalty's demise . 63

Infrequent use undermines its deterrence --- [death-in-prison would enhance it]
Covey, 12 --- Associate Professor, Georgia State University College of Law (Summer 2012, Russel D.,
Georgia State University Law Review,“Death in Prison: The Right Death Penalty Compromise,” 28 Ga. St.
U. L. Rev. (2013), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2696&context=gsulr,
accessed on 3/13/20, JMP)

Infrequent use of the death penalty undermines its retributive and deterrent qualities in important
ways. The distribution of punishment is an important feature of justice, and where its distribution is
uneven, the criteria determining the distribution takes on particular salience. A substantial body of
empirical evidence suggests that factors irrelevant to desert, including race, gender, intrastate
geography, election-year politics, and the quality of defense counsel play a significant role in
determining who is sentenced to death.15 If, as the evidence suggests, the criteria most often
determinative of who lives and who dies lacks moral relevance to punishment, it is hard to argue that
the system is meeting its retributive goals.16 Moreover, proportionality is a concept central to
retributive punishment, and where the distribution of offenders’ punishment is disproportionate to the
distribution of offenders’ culpability, the penal system is clearly failing to achieve basic retributive
goals.17

At the same time, there is little reason to believe that executions, which occur with less frequency than
lightning strikes, have much of a deterrent impact.18 Indeed, a robust debate about whether the death
penalty in fact deters crime has been ongoing for decades without any resolution. The roots of the
debate can be traced back to a 1975 study published by Isaac Erlich.19 In the study, Erlich claimed that
each execution deters seven or eight murders.20 The study received a substantial amount of attention
at the time. Erlich’s conclusions were discredited, however, by a panel of the National Academy of
Science chaired by a Nobel-winning economist, which found flaws in Erlich’s methodology, including the
fact that the decline Erlich observed in the murder rate in states implementing capital punishment
occurred as well in states that did not authorize capital punishment.21 The panel concluded that “the
available studies provide no useful evidence on the deterrent effect of capital punishment.”22

More recent studies have claimed to find evidence of a deterrent effect of capital punishment as well.
One study asserted that each execution deters eighteen murders.23 But these studies, too, have been
scrutinized by other economists who have found the analysis flawed.24 Indeed, competing studies
purport to establish that executions not only do not deter, they increase the homicide rate.25
Needless to say, the debate over the death penalty’s deterrent effect remains, at best, undetermined.
As Michael Tonry puts it, “[t]he only credible conclusions that can be drawn are either that capital
punishment has no deterrent effects on homicide or that there is no credible evidence that it does.”26
Of course, it is possible that notwithstanding the absence of empirical evidence, the death penalty does
have a deterrent effect. Numerous people, including Supreme Court Justices, have assumed as much.
Even if we assume as a matter of “common sense” that the current death penalty has some marginal
deterrent effect,27 basic behavioral theory suggests that the effect is compromised by the infrequency
of the death penalty’s use. In his influential tract on punishment, Cesare Beccaria long ago pointed out
that certainty is more important than severity where deterrence is concerned. Recent studies on
cognitive psychology confirm this observation.28

Where punishment is severe, there is less chance that policy makers will exercise their discretion to
carry out the punishment. In addition, punishment that is perceived to be overly harsh risks
delegitimizing the state in the eyes of citizens.29 We can observe both of these dynamics at work in
capital punishment. Many of the most culpable offenders escape the death penalty, not because they do
not deserve the highest punishment available, but because the relevant decision-makers are reluctant
to impose it. Likewise, where the death penalty is utilized, it plainly undermines the state’s lawful
authority in the eyes of some citizens. Although the use of the death penalty also advances the political
standing of politicians in the eyes of others, it is far from clear that these costs and benefits are
commensurate. Politicians may be trading short-term political appeal for long-term disaffection among
substantial numbers of citizens. In any event, when the use of a punishment as politically controversial
as the death penalty is at issue, the application of the penalty will ultimately turn on perceptions of the
political costs and benefits of carrying it out. The politicization of the death penalty makes its use far
more mercurial than other, less controversial punishments, and hence its application less certain. This
too detracts from its deterrent force.

Death-in-prison, by contrast, would not suffer these defects. Far more defendants could be sentenced to
death-in-prison. Indeed, most of the large number of capital defendants who currently receive LWOP
could be sentenced to death-in-prison with no impact on the current allocation of prison resources. This
would ensure that all persons who commit capital murder could be sentenced comparably. By
adopting death-in-prison as a jurisdiction’s highest penalty, the arbitrary selection of a small handful of
unlucky defendants for execution would come to an end. Rather than sentence a few defendants to
death and most others to LWOP, both groups of defendants could be sentenced to death-in-prison upon
an adequate showing of desert. Exercise of the state’s highest penalty would then look less like a
lottery and more like a predictable, and fairly distributed, penal sanction. This would not only improve
the proportionality of punishment, it would enhance deterrence by clearly communicating to the entire
class of would-be offenders that the state’s ultimate punishment will be imposed with certainty .

Long delays also undermine deterrence

Covey, 12 --- Associate Professor, Georgia State University College of Law (Summer 2012, Russel D.,
Georgia State University Law Review,“Death in Prison: The Right Death Penalty Compromise,” 28 Ga. St.
U. L. Rev. (2013), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2696&context=gsulr,
accessed on 3/13/20, JMP)

3. Delay and deterrence

It is well established that punishment is most effective when sanctions quickly follow misdeeds. Long
delay between them mutes the message intended by the punishment regime, both for the recipient of
the sanction and for the community.46 Even if we assume the death penalty has some deterrent value,
the deterrent function is undermined by the long delays between crime and execution characteristic
of the death penalty.47 Few criminals motivated by rational calculations of expected punishment likely
refrain from committing crimes in fear of a death penalty that is only rarely imposed and then only after
a decades-long delay.48

Death-in-prison sentences would be penologically superior to conventional death sentences because, in

a literal sense, the punishment would be imposed immediately upon sentencing. When a convicted
offender is sentenced and removed from the courtroom with knowledge that he or she will never be
released from prison, the punishment is already being meted out. Of course, the same fate (immediate
imprisonment) awaits the recipient of a conventional death sentence, but the meaning imposed on
events is quite different. The condemned prisoner is sent to death row to await imposition of
punishment. Death row is figured as a holding area, not the place of punishment itself.

Wrongful convictions undermine perception of deterrence

Covey, 12 --- Associate Professor, Georgia State University College of Law (Summer 2012, Russel D.,
Georgia State University Law Review,“Death in Prison: The Right Death Penalty Compromise,” 28 Ga. St.
U. L. Rev. (2013), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2696&context=gsulr,
accessed on 3/13/20, JMP)

Not only does the conventional death penalty inherently risk wrongful execution, but the presence of
some evidence that particular prisoners may in fact be innocent injects an untenable degree of moral
ambiguity into the act of executing capital defendants. This ambiguity seriously detracts from the
contemporary death penalty’s ability to deliver supposed penological benefits.

Consider again the Troy Davis case. In the fall of 2011, Georgia executed Troy Davis notwithstanding
substantial evidence that Davis was innocent of the murder for which he had been sentenced to death.
That evidence included recantations by seven of the nine witnesses who testified against him at trial,
new ballistics evidence, and testimony by several individuals that another individual had confessed to
the crime. Davis’s last act before execution was to profess his innocence.59 Thousands of spectators,
protesting the execution outside the jail and, literally, around the world, believe it.60

Whether or not Davis was, in fact, innocent, his execution under these circumstances was deeply
problematic and advanced few coherent penological goals.61 As writer Scott Turow observed, Davis’s
execution likely will “leave only a lingering sense of injustice,” making it “hard to argue it made the clear
moral statement the death penalty supposedly represents.”62 Where an execution is carried out in the
face of an insistence on innocence, the convicted prisoner exhibits neither contrition nor remorse.
Where that insistence is supported by at least some credible evidence of innocence, the execution will
likely make the general public more, not less, cynical about the efficacy and justice of the criminal law.
Such executions might even undermine deterrence by deepening the perception among wrongdoers
that they might commit crimes and escape justice by fooling the courts into convicting the wrong
person.

Plausible death chamber professions of innocence, moreover, are not uncommon. Johnny Frank Garrett
angrily professed his innocence before Texas officials put him to death. Many believe Garrett was
innocent.63 Another condemned Texas prisoner, Cameron Todd Willingham, was also asked if he wished
to make a statement before death, and also proclaimed his innocence. Willingham is now widely viewed
as probably having been executed for a crime he did not commit.64 Yet another Texas prisoner, Steven
Woods, professed his innocence and characterized his forthcoming execution as a “murder” rather than
an “execution.”65 Leonel Herrera, defendant in one of the Supreme Court’s landmark actual innocence
cases, similarly died professing his innocence.66 Of course, not all professions of innocence are true.
Roger Coleman proclaimed his innocence to the end, but post-execution DNA testing confirmed
Coleman’s guilt. We thus know that some condemned prisoners are lying about their innocence, but we
rarely can tell which ones are and which are not, thus infusing the practice of executing prisoners with
an inescapable aura of ambiguity. By contrast, in a death-in-prison regime, innocence-based appeals can
be considered as part of the regular course of post-conviction review. Even where inadequate evidence
exists to overturn a conviction, the possibility that new evidence might demand that result will remain.

Not all possibly innocent condemned prisoners are put to death while proclaiming innocence. Some, in
fact, succeed in winning commutations of their sentences. That was the case for Henry Lee Lucas.
According to the Death Penalty Information Center, Lucas confessed to the murder of an unnamed
hitchhiker in Texas in 1979, and was sentenced to death in 1984. Lucas, however, “also confessed to
hundreds of other murders including the murder of Jimmy Hoffa and his fourth grade teacher, who is
still alive. Most of his confessions have proved false.”67 State investigators concluded that Lucas almost
certainly did not commit the murder for which he had been convicted. Lucas’s death sentence was
therefore commuted to life-in-prison in June 1998. Lucas died in prison in 2001. Winning commutation
of a death sentence because of doubts about guilt is an unusual event, but when it occurs, such a
commutation is something of a hollow victory. Commutation of a death sentence to life without parole
still means the prisoner never returns to society. It is still a death sentence, just one that is drawn out
over a longer process. For Lucas, it won him an extra three years. What is worse, such prisoners likely
lose whatever legal leverage they had when an execution was looming. While pro bono counsel for
death-sentenced prisoners is fairly common, far more life-serving prisoners go unrepresented. While the
perception among the public that a decision to commute a death sentence to life without parole is an
act of mercy, from the innocent prisoner’s point of view the commutation is at best a mixed blessing,
perhaps better than the alternative but still wholly inadequate to rectify the wrong that has been done.
In a death-in-prison regime, prisoners who convinced decision makers to commute their sentences
based on innocence would presumably be entitled to release rather than continued incarceration, which
seems a far fairer outcome where the prisoner has succeeded in demonstrating that he is more likely
than not innocent.

Doesn’t deter and isn’t key to law enforcement

Arnold, 19 --- co-chair of Arnold Ventures LLC (8/4/2019, Laura, “Death Penalty Return May
Undermine Criminal Justice Reform,” https://www.law360.com/articles/1184431/death-penalty-return-
may-undermine-criminal-justice-reform, accessed on3/19/2020, JMP)

In my home state of Texas, a study this year found that the added expense of death penalty trials
contributes to higher property taxes and reduced public safety expenditures.[14]
This expenditure of public resources might be worthwhile if taxpayers were getting something
significant in return, but we’re not. A 2009 survey found that 88% of the nation’s top criminologists[15]
do not believe the death penalty acts as a deterrent to homicide. And a national poll of police
chiefs[16] listed the death penalty at the bottom of law enforcement priorities. That is, they’d prefer to
spend their limited resources on something else.

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from
constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have
stopped pursuing capital punishment. The number of death sentences declined by 50%[17] between
2009 and 2015. In fact, only 16 counties[18] out of 3,143 imposed five or more death sentences
between 2010 and 2015.
 AT: Life-Without-Parole Turn

***note when prepping file --- some of these cards are also in the “Kritik Answers”
section in some form

The plan sets a precedent that invalidates mass incarceration, solitary confinement
and life-without-parole sentences
Barry, 17 --- Professor, Quinnipiac University School of Law (January 2017, Kevin, “The Death Penalty &
the Dignity Clauses,” 102 Iowa L. Rev. 383, Nexis Uni via Umich Libraries, JMP)

V. After the Death Penalty

Judicial abolition of the death penalty will have important implications for dignity under the Eighth
Amendment and the Constitution more generally. This Part considers a few of them.

First, with respect to the Eighth Amendment, abolition may do for criminal sentencing law what
Lawrence did for LGBT rights. In Lawrence, the Court invalidated laws criminalizing same-sex intimacy
but expressly declined to reach the issue of same-sex marriage. 373 Justice Scalia predicted that the
Court's decision could not be cabined, and he was right. 374 Twelve years later, in Obergefell, the Court
explicitly relied on Lawrence to invalidate laws prohibiting recognition of same-sex marriage: "While
Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association
without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step
forward, but it does not achieve the full promise of liberty." 375

A decision abolishing the death penalty could well be the criminal law's Lawrence - a giant "step
forward" toward "the full promise" of dignity under the Eighth Amendment. 376 For example, if it
violates dignity to sentence people of color to death in disproportionate numbers, perhaps it also
violates dignity to incarcerate them in disproportionate numbers. 377 Similarly, if it violates dignity to
require death row prisoners to spend much of their lives in solitary confinement awaiting execution, 378
perhaps solitary confinement is, itself, a violation of dignity. Justice Kennedy has strongly signaled as
much, calling solitary confinement "a further terror," one that may bring prisoners "to the edge of
madness, perhaps to madness itself." 379 And if the death penalty violates dignity, perhaps LWOP - "the
second most severe penalty [*441] permitted by law" 380 - does as well. The Supreme Court has
already prohibited or severely restricted LWOP in the juvenile context; 381 abolition of the death
penalty may pave the way for extending this prohibition to adults. 382

Prosecutors use threat of death penalty in plea bargaining process to drive up LWOP
sentences
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 181-183,
JMP)
Bargaining for Life

The shadow of the death penalty can be effectively used by prosecutors to obtain severe bargains. Some
prosecutors defend the death penalty in an era of declining sentences on the following grounds: even
when it is not often used, the death penalty is a very useful bargaining chip. Plea bargaining dominates
our criminal justice system. Upwards of 95 percent of criminal convictions are negotiated through plea
bargains. These bargains are supposedly voluntary—in exchange for a reduced sentence, a defendant
agrees to sign a contract, in effect, and admit guilt, waiving the right to a trial. In practice, however, the
defendant may be facing so steep a sentence that there is little room to negotiate. Facing the death
penalty, a defendant might accept anything offered by the prosecutors. “If they offer you anything less
than death and you don’t take it, imagine if you guessed wrong,” one defense lawyer put it. That type of
pressure placed on a defendant does not concern the U.S. Supreme Court, which has said repeatedly
that the fact that a defendant might plead guilty to avoid the death penalty does not make a plea
constitutionally involuntary.37

Without the death penalty, no defendant would settle for a life without parole sentence; such a
sentence would be the worst outcome they could get , so why not roll the dice at trial? In most death
penalty states, nearly all capital cases are plea-bargained— trials have almost entirely vanished. As one
prosecutor put it, “I’m not a rabid proponent of the death penalty [but] if it has an upside, it’s that we’ve
resolved some cases with pleas of life without parole where that was the appropriate sentence.”38 Law
professor Sherod Thaxton studied sentencing decisions in Georgia from 1993 to 2000 and found that the
threat of the death penalty increased the chances of a plea agreement by 20–25 percent .39

The bargaining chip comes with real risks for prosecutors. In at least some states, if defendants do not
plead, and instead go to trial for a death sentence, they may receive far more experienced and better-
resourced lawyers. The costs of trial will go up considerably. There are other costs to seeking the death
penalty as leverage. Another prosecutor explained, “It’s a double-edged sword. If you charge somebody
with death . . . with the hopes that you’ll eventually use it as leverage to get a plea, then how do you
justify the plea later on? Now you have to go back to the victims and try to explain what is going on.”40

If prosecutors do still sometimes use the death penalty to leverage harsh sentences, they are just using
the tools available; as another prosecutor explained, “Most of what we do in the criminal justice system
is about the exertion of the proper leverage.”41 As I described in Chapter 2, this approach has directly
led to innocent people, later exonerated by DNA testing, pleading guilty to avoid death sentences.
Perhaps when confronted with the body of evidence on wrongful convictions, including in death penalty
cases, the Supreme Court will one day reconsider its tolerance for highly coercive plea bargaining.

The ways that prosecutors use the death penalty in plea bargaining epitomize how we give prosecutors
unfair and nearly absolute power when they negotiate criminal cases. The net result is wasteful, unjust,
and it overproduces harsh sentences in an era when the death penalty is inexorably declining.

Abolition can empirically be a starting point for reviewing all extreme sentences
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

D. Promotion of LWOP as a Replacement for the Death Penalty

Executions have declined by over 50% in the past decade in large part due to successes in legislation,
litigation, and public education that have narrowed or eliminated the death penalty in certain states or
in certain instances (e.g., the mentally handicapped, juveniles). 49 The steadily falling homicide rate has
also contributed to the decline in executions. Without these successes, consideration of the
appropriateness of LWOP would not be possible. Death penalty abolitionist work opens the door to a
broader review of all extreme sentences, starting with LWOP. Just as the death penalty movement has
leaned on LWOP to advance its reforms, so too has the LWOP abolition movement benefitted from the
growing prominence of death penalty discussions in order to gain momentum in its own reforms.

No link --- we don’t rhetorically defend LWOP --- our particular rejection of the death
penalty can serve future victories over the larger system of punishment
Gullapalli, 20 --- senior legal counsel at The Justice Collaborative, spent several years as a human
rights advocate, public defender, and journalist in the U.S. and India (1/31/2020, Vaidya, “THE DEATH
PENALTY IS PART OF A LARGER SYSTEM OF PUNISHMENT,” https://theappeal.org/the-death-penalty-is-
part-of-a-larger-system-of-punishment/, accessed on 3/24/2020, JMP)

Colorado’s Senate took a critical vote on Thursday that put the state on the pathway to abolishing the
death penalty. The body voted 19-15 in favor of a bill to repeal capital punishment. Around 11:30 a.m.
local time today, Denver Post reporter Alex Burness wrote on Twitter to report further progress: “The
Colorado Senate has given final passage to the bill to repeal the death penalty. This was expected, but
still a huge moment. Colorado may now be just weeks away from becoming the 22nd state to repeal the
death penalty.”

The expected victory in Colorado is a victory for death penalty opponents everywhere and other
Western states may soon follow, as Liliana Segura and Jordan Smith of The Intercept chronicled last
year. What is also crucial, as the number of people on death row shrinks and the number of people
serving life sentences has ballooned, is to think about how a victory over capital punishment can either
serve or undermine future victories over the larger system of punishment .

Colorado’s death row is representative of capital punishment nationwide in two ways. First, the three
men on death row, all Black, were from the same county, products even, of the same high school in the
city of Aurora. In this way, Colorado is emblematic of the hyperlocal nature of the death penalty today—
the product, overwhelmingly, of a small number of outlier jurisdictions and prosecutors rather than of
geographically broad use of the penalty.

Second, capital punishment has been on the wane in the state for a long time. The last execution was in
1997. Nationwide, there were fewer than 50 death sentences and fewer than 30 executions last year,
for the fifth year in a row, according to the Death Penalty Information Center.

But even as its reach contracts, the death penalty continues to command particular attention in U.S.
jurisprudence, national media attention, and international coverage of the U.S. legal system. The
Supreme Court has said death is different and developed a jurisprudence that set capital cases apart
from all others, with heightened (although still insufficient) protections. Conversations about the death
penalty also have a particular moral valence, focused on the ethics of the taking of a life.

But that focus and that moral language can and should encompass the broader system of punishment.
As we celebrate every single life that is not ended in an executioner’s chair, we can draw attention to
the thousands of people in prison who will die far from their homes and families, and decades after the
acts for which they were condemned to death. The death penalty is gruesome in how it dismisses the
humanity of the condemned person and diminishes the humanity of those imposing and carrying out
those sentences. But many other aspects of our system do the same things.

In the past month alone, 13 people in Mississippi state prisons have died. Jamelle Bouie of the New York
Times wrote today about the ways in which that violence is coded into the DNA of the state’s prisons
and the multiple failed attempts at reforms. “But no amount of change has been able to break the cycle
of brutality,” he writes. “And why would it? The history of Parchman is a prime example of how
dehumanization and neglect are intrinsic to separating people from their freedom.”

Many of the reasons to oppose capital punishment are reasons to end other harsh punishments: a belief
in the inherent dignity of every human being, a belief that the state should not take a life even in
exchange for a life, an understanding that the system of punishment we have is premised on racism and
delivers on it, or an acknowledgment that our system is riddled with errors.

But there are other arguments against the death penalty that may entrench the larger system of
punishment. These are the arguments that say the death penalty is too expensive because of the greater
protections afforded those charged with capital crimes, when those greater protections should be
extended to more people. Or the arguments that the death penalty should be done away with in favor
of life in prison without hope of release. Ben Miller and Daniel Harawa wrote in Slate this month,
speaking of the Democratic candidates whose (historical) opposition to the death penalty relies on an
embrace of life in prison sentences: “We will solve nothing if we think the answer is to substitute one
cruel punishment with another.”

This pairing of opposition to capital punishment with an embrace of life without parole sentences bears
some responsibility for where we are today, with over 53,000 people sentenced to die in prison. In 2015,
Ashley Nellis of the Sentencing Project and an author of the “The Meaning of Life: The Case for
Abolishing Life Sentences,” explored the tensions between death penalty abolition work and efforts to
end extreme sentencing in a law review article. The “rapid rise in LWOP [life without parole] sentences”
she wrote, “can partly be attributed to a desire for a reliable, terminal punishment to replace the death
penalty after it was declared unconstitutional in 1972.” But, Nellis said, it does not have to be
this way: “Strategies to abolish the death penalty can be improved upon by
viewing the successful elimination of the death penalty as just the first step on
the road to the reformation of extreme sentences altogether . In this view, the
efforts to eliminate the death penalty are not in conflict with efforts to
eliminate LWOP.”
What is important, she wrote, was not just whether the death penalty is abolished
but why. “The reasons why American society will eventually decide to eliminate
the death penalty as a punishment are as important as the outcome—maybe
more so.”
Kenneth Hartman, sentenced to life without parole in California, wrote in 2016: “Why not abolish the
death penalty and life without the chance of parole? The assumption would be that it is possible for
human beings to become better than their worst act.” Hartman described his own sentence as just a
different kind of death: “Though I will never be strapped down onto a gurney with life-stopping drugs
pumped into my veins, be assured I have already begun the slow drip of my execution [which] won’t
come to full effect for 50, maybe 60 years.”

Alternative doesn’t have to be LWOP --- other countries prove there are other
progressive options
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

V. Suggestions for Reform

A. Seek Nuanced Assessments of Death Penalty Alternatives

Despite sizable declines in support over the years, the majority of the public still favors the death
penalty. In a 2010 Gallup Poll, 64% of respondents said that they supported the death penalty for
persons convicted of murder and 29% opposed it; the percentage in favor of the death penalty wavered
only slightly between 2002 and 2010. 106 Yet, when surveys provide alternatives to the death penalty,
support for the death penalty drops considerably. 107

[*456] It is misleading to measure public opinion based on a limited range of sentencing options when,
in actuality, there are additional sanctions that both support prison reform and protect public safety. It
is essential to explore public support for all sentencing alternatives to the death penalty, not only life
without parole.

Promotion of LWOP in exchange for fewer death sentences legitimizes LWOP even though it, too, is rife
with problems of its own.

B. Look to Other Countries for Guidance

Many countries exist without the death penalty or LWOP and are able to maintain public safety. 108
These countries do not experience major crime spikes. 109 According to a 2005 United Nations report,
seven countries reported having a mandatory life sentence for murder; however, all of them reported
mechanisms for releasing prisoners after a certain period of time. 110 In 2005, the United Kingdom had
only twenty-two prisoners serving LWOP sentences. 111 Most European countries do not have parole-
ineligible life sentences. 112 In these countries, it is recognized that no one should be declared beyond
reform or redemption without first attempting to rehabilitate them. 113 A comprehensive review after
some term of years is considered appropriate because of the emphasis on human rights and human
dignity. 114 Perhaps we can learn from these countries how to develop a continuum of sanctions that
encourages individual reform and protects the public at the same time.
 --- EXT: Plan is First Step to Challenge Other Punishments

The plan will spur reforms that improve the quality of criminal cases more broadly
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 212, JMP)

The death penalty has long been a bellwether. If we are experiencing its end game in the United States,
this begs a different question: could the death of the death penalty point the way toward a new day for
criminal justice? Call it “mission creep”: concern about flawed death sentences encourages reforms to
improve the quality of criminal cases more broadly. The death penalty decline, I believe, is
accompanying a change in how we view punishment in general. The same evolving standards of
decency force more and more of us to question not only the death penalty, but also other
punishments, especially when considered alongside the botched cases that convict the innocent and
the undeserving. Although we should celebrate the cumulative reasons driving the demise of the death
penalty, we can neither be complacent, given contrary impulses in the national mood, nor can we miss a
historic opportunity. Once we move beyond the death penalty, with its “death is different” focus on a
bright line between death sentences and all other sentences, new shades of grey emerge.

Challenging death penalty allows for rethinking other overly harsh punishments
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.231-2, JMP)

Moving beyond the death penalty opens new possibilities for rethinking overly harsh punishments.
Judges need to reexamine the constrained “death is different” understanding of what is cruel and
unusual punishment to consider the proportionality of sentences far beyond just death sentences.
Slowly, the courts have considered how life-without-parole sentences can be excessive, for juveniles at
least. But the Supreme Court has tolerated lengthy sentences under “three strikes” and other habitual-
offender laws designed to put recidivists away for very long sentences. It has upheld a life sentence for a
person convicted of stealing $120.75, and a California “three strikes law” sentence of twenty-five years
to life for a burglar who shoplifted three $399 golf clubs.41 While the Supreme Court has said that the
Eighth Amendment forbids only “extreme sentences” that are “grossly disproportionate to the
crime,”42 people can change their minds about the standards for what is grossly disproportionate
punishment. Twenty years ago draconian mandatory minimum sentences for drug possession were the
norm. In 1991, the Supreme Court approved a life-without-parole sentence in Michigan for possession
of one and a half pounds of cocaine.43 Today, many states have legalized medical marijuana, and some
states have legalized all possession of small amounts of marijuana. California has made all drug
possession a misdemeanor rather than a felony. Lee Carroll Brooker, a seventy-five-year-old veteran,
was arrested for growing a few dozen plants containing just over two pounds of marijuana to treat his
chronic pain. In Alabama, where Brooker lives, the law says that certain prior felons can get a life-
without-parole sentence. The Chief Justice of Alabama’s Supreme Court called this sentence for a
nonviolent crime “excessive and unjustified”—but it was still the law.44 In 2016, the U.S. Supreme Court
declined to intervene in his case.
If the judges will not step in to rein in overly harsh punishments, they will be left behind. The public and
lawmakers are coming to terms with decades of disproportionate punishment. Over thirty states have
enacted “justice reinvestment” measures designed to reduce prison populations, reduce sentences, and
direct the savings toward rehabilitation. Maryland, for example, in “the largest and most comprehensive
criminal justice reform to pass in Maryland in a generation,” plans to reduce its prison population by
1,000 over the next decade, saving $80 million.45 Imagine the savings if the billions spent on the death
penalty were redirected toward rehabilitation and public safety and if the same were done for other
serious crimes. Just as a society benefits from a peace dividend when a time of war ends and defense
spending can be reduced, as the war on crime ends it is time for us to reap the rewards of a mercy
dividend. That is why the end of the death penalty can mean a new beginning for criminal justice.

The plan can be the first step in challenging extreme sentences altogether
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

The declining use of executions in the United States shows that as a practice it is slowly falling out of
favor in growing proportions of the country. 5 The momentum of death penalty abolition and reform
work can be attributed largely to a combination of the accomplishments of the innocence movement,
the demonstrated exorbitant cost of the sentence, and the lengthy appeals process. 6 It has become
increasingly difficult to justify the death penalty's continued use in spite of differing views one may hold
on punishment more generally. Those who raise concerns about efficacy now join with those who
oppose the death penalty on moral grounds to create a sizable, diverse portion of the American public.
The strategies utilized by the death penalty abolition campaign have broadened its support network by
reaching out to atypical allies and have succeeded in making death sentences less palatable to a wider
audience. 7 Over the same period of time, the sentences of life without possibility of parole ("LWOP")
have soared. 8

Strategies to abolish the death penalty can be improved upon by viewing the successful elimination of
the death penalty as just the first step on the road to the reformation of extreme sentences
altogether. In this view, the efforts to eliminate the death penalty are not in conflict with efforts to
eliminate LWOP. And while LWOP is certainly not the [*441] only sanction in need of reform, it is the
most logical place to begin because of the troubling qualities it shares with the death penalty in
America.
 AT: Utilitarianism

Utilitarianism is incapable of evaluating human rights – it instrumentalizes the

individual rendering life meaningless
Jack Donnely, PhD Poli Sci Berkley, The Concept of Human Rights, 1985 p. 52-55

Subservient to utility, there is no objection either to the word or the thing; that which is useful is right: a
right is that which grows out of the application of the greatest happiness principle' (Bentham 1834:1, 136-7; compare 1838:11, 501, 111, 159;
1970:58; 1952:1, 333). But the claim that a right is that which is useful confuses rights with what is right (as defined
by utility) and thus is just a specification of the (inaccurate) simple-beneficiary theory discussed above. Furthermore, the
subservience
of utility to rights is the whole point of the special normative force of rights as trumps ; subservient to utility,
'rights' are no longer rights. Rights are not the record of utilitarian calculations — or rather, if they are it is a contingent fact
of no conceptual significance. Utility does not determine which rights one has. Usually utility does not even
determine which rights ought to be exercised, respected, enforced or overridden in particular cases . Ordinarily,
rights simply are not subject to utilitarian validation of any sort. Consider a case such as the nazi rally in the late
seventies in Skokie, Illinois, a community with a sizable number of Jewish refugees and survivors of the Holocaust. Suppose that we are able to
determine empirically, beyond all reasonable doubt, that letting the nazis march provides pleasure to a few and displeasure, even anguish, to a
large number; i.e. that the balance of pleasure to pain unambiguously favours prohibiting the rally, even if we give full weight to the long-run
costs of the precedents that might be established. None the less, if the rally is speech, as it seems to be, and if the Constitution guarantees the
right to speak, as it clearly does, the rally must be permitted. This is simply the way entrenched basic rights work; a protection that did not work
this way would not be a right. Or suppose that virtually everyone in a society intensely enjoys torturing members of a fringe political group, so
that a calculation of pleasures and pains establishes beyond all doubt that such torture would maximise utility. Such a determination would
only increase the importance of rights to freedom of expression and personal liberty. The utility of torture does not imply that the intended
victims have no rights, or even that their rights can be justifiably infringed. Utilitarian
calculations are not only irrelevant to
whether or not one 'has' a right, but in most cases utility is not even the decisive factor in determining
what ought to be done, all things considered. Suppose that A has an admitted surplus of money, to which he holds property rights, and
B is destitute. Suppose further that a one-time transfer of money from A to B would increase the balance of pleasure, even considering the
costs in terms of perceived security to A and others similarly situated. If utility (beneficial obligation) truly yielded rights, B would have a right to
that money.6 Central to the very idea of A's right to the money, however, is that B doesn't have a right to it (because A does, and the money is
not a public good). The existing distribution of funds in this example may be profoundly unjust. One way to establish this might be through a
utilitarian calculation. None the less, A's right to the money largely insulates him from utilitarian claims; A's right, as it were, removes his money
from the common fund from which all might be presumed to be justified in drawing on the basis of interest or need — and it is precisely such
features of rights that cannot be captured in directly utilitarian terms. Notice that I have yet to mention natural or human rights. This is because
utilitarianism has nothing special to say about human rights, as opposed to other kinds of rights. Bentham's attacks on natural rights in
particular, including his famous description of imprescriptible natural rights as 'nonsense upon stilts' (1838:11, 501), have absolutely nothing to
do with utilitarianism. Instead, they rest on Bentham's legal positivism. Bentham, at a number of points, argues — or rather, asserts —that
'there are no rights other than legal rights' (1838:111, 221, 11, 500-1, VIII, 557; 1970:57, 63, 220, 291). This is simply an arbitrary stipulation.
Furthermore, it is at odds not only with our ordinary understanding and practice, but with utilitarianism as well, since laws may easily conflict
with utility, especially under Bentham's command theory of law. Either rights are 'the fruits of the law, and of the law alone' (1838:111, 221), or
they are subservient to utility. Utilitarianism is incompatible with natural or human rights not because they are human rights, but because they
are rights. Rights
simply do not work in the same way as considerations of utility; in numerous important
cases, rights and utility prescribe different actions or evaluations. None the less, the 'non-utilitarian' ways rights work
may be capable of indirect utilitarian justification. Utilitarian moral theories usually are divided into two classes, act and rule utilitarianism. Act
utilitarianism involves the direct application of the principle of utility to particular cases. Rule utilitarianism, however, applies the principle of
utility directly (only) to 'rules' or social practices. Once a `rule' has been justified as in sum consistent with utlity, particular acts are judged by
their conformity to the 'utilitarian' rule. A rule-utilitarian theory of rights does seem to be possible in principle. However, it is largely without
interest as a theory of rights because of its concentration on the compatibility of rights and utility. Even if we grant that rights and utility are
compatible (in the sense that plausible utilitarian arguments can be advanced to 'justify' the practice in general as well as the implementation,
respect or enforcement of numerous particular rights), a rule-utilitarian theory of rights tells us nothing about the nature, source or substance
of rights. In fact, concentrating on the question of compatibility — which may be of some importance in evaluating utilitarianism as a general
moral theory — is likely to obscure the fundamental differences between rights-based and utility-based moral and political theories and
practices. For example, a rule utilitarian may be able to justify the list of basic rights enumerated in, say, the French Declaration of the Rights of
Man and the Citizen; i.e. such a set of rights might be shown to have social consequences which in sum are beneficial, making them (indirectly)
'utilitarian'. Such a utilitarian account, however, would seriously misrepresent the actual natural rights logic that Paine, for example, (correctly)
argues underlies the Declaration. The actual justification of this set of rights stresses human dignity, the human person, rather than utility and
largely undifferentiated interests and preferences. While a utilitarian may be able to provide some sort of after-the-fact 'justification' for a list
of rights, it is difficult to imagine the list being generated from a utilitarian starting point. Beginning with persons endowed with basic rights,
whether by `nature' or by the fundamental principles of a regime, we are likely to act and reason differently than if we begin with utility, as it
were, tabula rasa. Rights-based theories rest on essentially qualitative moral judgments of persons and practices, as opposed to the
rights are not just weighting factors in utilitarian
fundamentally quantitative approach of utility. Basic moral and political
calculations that deal with an undifferentiated 'happiness'. Rather, they are demands and constraints of a different
order, grounded in an essentially substantive judgment of the conditions necessary for human development and flourishing. They also
provide means — rights — for realising human potentials. The neutrality of utilitarianism, its efforts to assure that
everyone counts 'equally', results in no-one counting as a person; as Robert E. Goodin puts it, people drop out
of utilitarian calculations, which are instead about disembodied preferences (1981:95; compare Dworkin 1977:94-
100, 232-8, 274 ff.). In Aristotelian terms, utilitarianism errs in basing its judgments on 'numerical' rather than 'proportional' equality.

Strictly Consequential decision frameworks are unsustainable – they collapse into

irrational violence
Williams, PhD, 05 (Michael Charles, The Realist Tradition and the Limits of International Relations p.
172-3)

If viewed simply as the consideration of likely outcomes, an ethic of consequences is without doubt deeply
flawed. Not only is such a vision limited in its capacity to reflect upon the values it presupposes, but it may
become the basis of a patently irresponsible politics. Most simply, a reduction of ethics to consequences risks
becoming irresponsible precisely by taking for granted the value of its ends and reducing all other actors —
and indeed all actions — solely to the consideration of their effi ciency as means to this end. The outcome of this could
scarcely be more clearly expressed than in Edward Luttwak's definition of strategy; as he puts it: 'strategy is not a neutral pursuit and its only
purpose is to strengthen one's own side in the contention of nations'. 3 In this case, the value of the end is placed beyond
consideration, and it is only the consequences of actions which further the goals of this end ( in this case, the
nation) that are of concern. The difficulties here are obvious. One is left wondering, for example, what might be Luttwak's
opinion of a strategist supporting a policy of global domination via genocidal extermination. Purely
consequential calculation either assumes and leaves unexamined the values to which one is to be
responsible (a given state, community, or creed), or (and perhaps at the same time) renders prudence the servant of an
uncriticised and potentially purely irrational set of drives or commitments. It conspicuously, and damningly,
avoids asking the question, 'responsible to whom or to what?'. If this form of objectivity (instrumental calculation)
and scepticism (uncriticised ends) were all that Realism entailed, it would indeed seem to support a form of pure decisionism
or irrationalism, making for a quite sophisticated but extremely radical form of realpolitik — or a neutral 'policy science' —
acting in the name of whatever ideology or institution, party or programme happened to prevail at a given moment. Yet despite the attempts of
theorists of such a crude realpolitik to appropriate the title and tradition of 'Realism' for themselves, it seems clear that there is little in such a
stance that the wilful Realists surveyed in this book would find compelling. For if all Realist ethics amounts to is just a consideration of
consequences, then the fanaticist politics of religious faction so scathingly attacked by Hobbes, the model (and critique) of technical rationality
that Morgenthau identified as central to understanding Nazism, or the logic of domination that Rousseau found and rejected in instrumental
reason, would have little resonance in the Realist tradition.
 AT: Government Policy Makers

Policymakers lack foresight for consequentialism

Journal of Contemporary Health Law & Policy, Winter , 2001, 18 J. Contemp. Health L. & Pol'y
95, p. 117
The utilitarian principle justifies intentional, harmful acts against other humans to achieve a hoped-for
benefit to a greater number of people. It is the wrong approach to public policy decisions. Its most
notable proponents have been responsible for much of the misery and strife of the last century.
Experience has taught us time and again that public servants, even when crafting policies that appear
wholly beneficent, can cause great harm (the so-called "law of unintended consequences"). Humans lack
the wisdom and foresight to completely understand the future ramifications of many actions. A father,
for example, may believe that it is an entirely good thing to help his daughter with homework every day
because they are spending time together and he is showing sincere interest in her life and schooling. By
"helping" with homework, however, his daughter may be denied the mental struggle of searching for
solutions on her own. She may not develop the mental skills to solve tough math problems, for example,
or to quickly find key concepts in reading selections. If even "good" actions can produce undesirable
results, how much worse is the case when evil is tolerated in the name of some conjectural, future
outcome?
 AT: Extinction First

Policy paralysis – everything has chance of extinction

Nordhaus, PhD, 11 (William D, The Economics of Tail Events with an Application to Climate Change
Review of Environmental Economics and Policy, volume 5, issue 2, summer 2011, pp. 240–257)

The dismal theorem holds that we cannot rule out catastrophic impacts of climate change with 100
percent certainty. If we broaden our horizons, we would find that these results apply in a wide variety of
circumstances in which we are highly uncertain about the technology or societal impacts of human activities. Areas in which
experts have warned about potentially catastrophic outcomes include biotechnology, strange lets,
runaway computer systems, nuclear proliferation, rogue weeds and bugs, nanotechnology, emerging
tropical diseases, alien invaders, asteroids, and so on . Like global warming, all these outcomes have deep
uncertainty in the sense that we really cannot be sure about the shape of the probability distribution. Indeed, these outcomes may have
greater uncertainty than global warming because there are fewer well-understood constants in the biological and technological world than in
the geophysical world. Thus,if we were to accept the dismal theorem, we would likely drown in a sea of anxiety
at the prospect of the infinity of infinitely bad outcomes . Weitzman dismisses such pervasive anxieties
about these other catastrophic outcomes, arguing that they are ‘‘extremely unlikely.’’ However, other scientists
have come to very different conclusions . One example is Freeman Dyson, who optimistically believes that we are on the
threshold of developing new technologies that can scrub carbon from the atmosphere at low cost (see Dyson 2008). In another example, Ray
Kurzweil (2005) argues that we need to protect ourselves from the ‘‘GNR’’ (genetics, nanotechnology, robotics) revolution but believes that
low-cost and clean energy will be attainable in two or three decades. We clearly need an economic and a statistical approach that can be
generally applied to potentially catastrophic events

Rights outweigh – life without values isn’t life at all.

Fuller, PhD, 14 (Steve, SocialEpistemology@Warwick,
http://www.abc.net.au/religion/articles/2014/10/23/4113073.htm)

The bottom line is that the

taking of risks - even ones that might be reasonably called "existential risks" - is not something
to be avoided but embraced as potentially opening up opportunities that had been previously closed, precisely due to the previous
success of the status quo. In the nineteenth and twentieth centuries, the bargain was struck in terms of "the costs of progress." Indeed, the
displacement and destruction of nature and people that we nowadays associate with the Industrial Revolution - still regarded as overall positive
development in human history - may be understood as simply the first phase of a process whose second phase may be marked by the sorts of
displacement and destruction that are now anticipated with the onset of global climate change. Toward a more authentic sense of existential
risk Taken together, the Industrial Revolution and today's global climate change constitute what ecologists increasingly call the "anthropocene,"
the period when our species became the prime mover of environmental transformation. However, the two phases appear to differ in moral
standing in today's world. Thedestructiveness of the Industrial Revolution is often conceded as a necessary
price to pay for a globalized modernity, whereas global climate change is often presented as something
that we should do our utmost to mitigate, if not outright prevent, because we cannot foresee the benefits that would justify the
costs. In other words, the perceived difference between the two phases lies less in the actual damage they will
turn out to have inflicted - in both cases enormous - than in our capacity to construct a balance sheet that
provides some agreed account of the costs and benefits . Here it is worth recalling that it was only in the 1880s that the
idea of an "Industrial Revolution" began to be presented in unequivocally positive terms. However, it would be a mistake to reduce the matter
simply to our lack of 20/20 historical vision. A
striking feature of today's debates over global climate change is the
relative absence of serious utopian proposals comparable to the ones - including Marxist ones - that justified
the undeniable costs of mass industrialisation in the nineteenth and twentieth centuries, which in turn encouraged a sense of
perseverance in the face of adversity. These utopias constituted the basis for the modern imagination in science, art and politics. To be sure,
they were consistently challenged by various doomsday scenarios of environmental degradation and human exploitation that aimed to halt and
maybe even reverse industrialisation. Indeed, many - if not most - of these scenarios did come to pass and their
consequences are very much with us today . Nevertheless, they do not seem as bad now as when originally presented because
their significance has been offset by the benefits inspired by the more utopian sense of the future, which over time has served to reshape
humanity's value orientation in its favour. In a nutshell, then, theproblem with the conception of existential risk as
presented by Bostrom and other would-be "Guardians of the Galaxy" is its failure to recognize the positive side of
risk, which is the realization that a radical improvement in the human condition may require a leap into
the unknown, the short term consequences of which may be quite harmful but which in the long term issue in greater benefits that in turn
serve to justify the risky undertaking. However, this oversight may reflect a larger sense of fatalism in the general
culture, one that finds it difficult to achieve the necessary distance from events to make overarching evaluations of harms and benefits. In
theological terms, one may regard this fatalism as symptomatic of an incapacity for faith, which is precisely about adopting a positive attitude
toward the unknown, and equally an unwillingness to entertain the divine point-of-view. In
the end is there a problem of
existential risk worthy of sustained attention? The answer is most certainly yes, and it centres on how
we might unwittingly undermine our own values in the course of their pursuit . So, while it is true that a
radical change to the human condition - like the Industrial Revolution - may enable our values to be pursued
more effectively, it is equally true that we may end up with false proxies for those values that we
rationalize as better simply because they are part of the world that we are now stuck with . Social
psychologists speak of this process as "adaptive preference formation," whereby we come to aspire to what we are likely to get. The resulting
state of mind is sometimes called "sweet lemons" - the flipside of "sour grapes. When the Existentialists struggled with the problem of
Bostrom, it is not the problem that humanity
"authenticity," being true to oneself, they were approaching this problem. Contra
might be annihilated by machines, but that we might become machines in the name of becoming
human: the destruction of "humanity" as a concept more than the destruction of "humanity" as a
population.

Utilitarianism is susceptible to bad faith – tinkering with numbers justifies atrocity

Holt, award winning philosopher, 95 (Jim, NYT 8-5, “Morality, Reduced To Arithmetic,”
https://www.nytimes.com/1995/08/05/opinion/morality-reduced-to-arithmetic.html)

In the debate over the question, participants on both sides have been playing the numbers game.
Estimate the hypothetical number of lives saved by the bombings, then add up the actual lives lost. If
the first number exceeds the second, then Truman did the right thing; if the reverse, it was wrong to
have dropped the bombs.

That is one approach to the matter -- the utilitarian approach. According to utilitarianism, a form of
moral reasoning that arose in the 19th century, the goodness or evil of an action is determined solely by
its consequences. If somehow you can save 10 lives by boiling a baby, go ahead and boil that baby.

There is, however, an older ethical tradition, one rooted in Judeo-Christian theology, that takes a quite
different view. The gist of it is expressed by St. Paul's condemnation of those who say, "Let us do evil,
that good may come." Some actions, this tradition holds, can never be justified by their consequences;
they are absolutely forbidden. It is always wrong to boil a baby even if lives are saved thereby.

Applying this absolutist morality to war can be tricky. When enemy soldiers are trying to enslave or kill
us, the principle of self-defense permits us to kill them (though not to slaughter them once they are
taken prisoner).
But what of those who back them? During World War II, propagandists made much of the "indivisibility"
of modern warfare: the idea was that since the enemy nation's entire economic and social strength was
deployed behind its military forces, the whole population was a legitimate target for obliteration.

"There are no civilians in Japan," declared an intelligence officer of the Fifth Air Force shortly before the
Hiroshima bombing, a time when the Japanese were popularly depicted as vermin worthy of
extermination.

The boundary between combatant and noncombatant can be fuzzy, but the distinction is not
meaningless, as the case of small children makes clear. Yet is wartime killing of those who are not trying
to harm us always tantamount to murder?

When naval dockyards, munitions factories and supply lines are bombed, civilian carnage is inevitable.
The absolutist moral tradition acknowledges this by a principle known as double effect: although it is
always wrong to kill innocents deliberately, it is sometimes permissible to attack a military target
knowing some noncombatants will die as a side effect. The doctrine of double effect might even justify
bombing a hospital where Hitler is lying ill.

It does not, however, apply to Hiroshima and Nagasaki. Transformed into hostages by the technology of
aerial bombardment, the people of those cities were intentionally executed en masse to send a message
of terror to the rulers of Japan.

The practice of ordering the massacre of civilians to bring the enemy to heel scarcely began with
Truman. Nor did the bomb result in casualties of a new order of magnitude. The earlier bombing of
Tokyo by incendiary weapons killed some 100,000 people.

What Hiroshima and Nagasaki did mark, by the unprecedented need for rationalization they presented,
was the triumph of utilitarian thinking in the conduct of war. The conventional code of noncombatant
immunity -- a product of several centuries of ethical progress among nations, which had been formalized
by an international commission in the 1920's in the Hague -- was swept away. A simpler axiom took its
place: since war is hell, any means necessary may be used to end, in Churchill's words, "the vast
indefinite butchery."

It is a moral calculus that, for all its logical consistency, offends our deep-seated intuitions about the
sanctity of life -- our conviction that a person is always to be treated as an end, never as a means .

Left up to the warmakers, moreover, utilitarian calculations are susceptible to bad-faith reasoning:
tinker with the numbers enough and virtually any atrocity can be excused in the national interest.
Disad Answers
 AT: DA Courts – Death Penalty Undermines Legitimacy

Death penalty is a fundamental factor undermining the Court’s legitimacy

Ford, 19 (4/2/19, Matt, “The Supreme Court’s Twisted Devotion to the Death Penalty; The conservative
justices' convoluted opinions are undermining the court's legitimacy more than any confirmation battle
could,” https://newrepublic.com/article/153437/supreme-courts-twisted-devotion-death-penalty,
accessed on 4/29/2020, JMP)

Between the partisan dogfight to confirm Justice Brett Kavanaugh last fall and some Democrats’
troubling calls for court-packing this spring, it’s been a bad few months for the Supreme Court’s
legitimacy. But the court has done itself no favors in its recent death-penalty rulings. In deciding that
Bucklew had no right to an alternative method of execution, the majority does what it increasingly feels
like it must do: mangle facts and precedent to keep the machinery of state-sanctioned death rolling.
That habit may ultimately do more harm to the court than any external force ever could.

Russell Bucklew was not challenging his conviction in the 1996 murder of a neighbor. (Bucklew’s wife
had fled to the neighbor’s home one night after a series of beatings.) Bucklew suffers from cavernous
hemangioma, which causes blood-filled tumors to grow throughout his head, neck, and throat and they
are too fragile to remove through surgery. His lawyers warned the court that lethal injection could cause
the tumors to rupture midway through his execution, filling his lungs with blood and suffocating him.

Bucklew faced a daunting legal precedent. In the 2015 case Glossip v. Gross, the Supreme Court laid
down a high threshold for death-row prisoners who challenge a state’s chosen method of execution. The
prisoner must prove that the method in question offers a “substantial risk of severe pain” and propose
an alternative method that would suffice. What’s more, the prisoner must also demonstrate that the
alternative method is “feasible” and could be “readily implemented.” Bucklew asked the courts to
choose nitrogen hypoxia to suffocate him instead. Several states, including Missouri, have laws to
authorize the method, but none have used it yet.

Gorsuch spent part of the opinion disputing testimony by Dr. Joel Zivot, an anesthesiologist who
appeared on Bucklew’s behalf in the district court. Zivot warned Bucklew would likely experience
“suffocation, convulsions, and visible hemorrhaging” for “more than a few minutes to many minutes”
before falling unconscious. But Gorsuch still concluded that there’s “nothing in the record to suggest
that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds.” He
also doubted the feasibility of nitrogen hypoxia, criticizing Bucklew for a “bare-bones” proposal:

He has presented no evidence on essential questions like how nitrogen gas should be
administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in
what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it
should be introduced; or how the State might ensure the safety of the execution team, including
protecting them against the risk of gas leaks.

Set aside the macabre demand for Bucklew to design the gas chamber in which he will be executed.
Why is it his responsibility, and not the state’s, to make sure prison employees are protected from gas
leaks?
Gorsuch’s questioning is part of a pattern for the Roberts Court, which has now made it incredibly
difficult for prisoners to challenge the method by which they die, apparently because the conservative
justices don’t want the challengers to succeed.

Death-penalty abolitionists have spent the past decade taking on execution methods, and have had
plenty of success. U.S. drugmakers and the European Union were pressured into imposing an embargo
on selling lethal-injection drugs to U.S. states. Some states responded by turning to more widely
available sedatives or even to illegal and unregulated suppliers. Others simply stopped executing people.

In theory, this campaign shouldn’t affect the Eighth Amendment rights of the condemned. But some of
the conservative justices have signaled that it does. “I guess I would be more inclined to find that
[midazolam] was intolerable if there was even some doubt about this drug when there was a perfectly
safe other drug available,” Justice Antonin Scalia mused during the Glossip oral arguments, referring to a
controversial sedative used in two botched executions in Oklahoma. “But the states have gone through
two different drugs, and those drugs have been rendered unavailable by the abolitionist movement
putting pressure on the companies that manufacture them so that the states cannot obtain those two
other drugs,” he noted.

Justice Samuel Alito was even more blunt. “Those who oppose the death penalty are free to try to
persuade legislatures to abolish the death penalty,” he told the prisoners’ lawyer. “Some of those efforts
have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs,
is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death
penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used
to carry out capital punishment with little, if any, pain?” His majority opinion in Glossip enshrined his
underlying premise: If abolitionists prevent a state from carrying out less painful executions, the Eighth
Amendment allows states to use more painful ones.

This urge permeates Monday’s decision. Gorsuch complains throughout the majority opinion that it has
taken more than two decades to execute Bucklew. “Courts should police carefully against attempts to
use such challenges as tools to interpose unjustified delay,” he wrote, adding that last-minute stays of
execution “should be the extreme exception, not the norm.” The timing of Bucklew’s lawsuit, coming
twelve days before his scheduled execution, wasn’t a question before the court; Gorsuch’s criticism of it
is wholly superfluous. His apparent purpose was to give the justices an opportunity to revisit their clash
over a separate death-penalty case from February.

That case, Dunn v. Ray, seems to have intensified the justices’ fissures over the death penalty.
Domineque Ray, a Muslim death-row inmate in Alabama, sued the state in January on religious-freedom
grounds less than a fortnight before his scheduled execution. Alabama allowed Christian death-row
inmates to have a Christian minister in the same room during their executions, but refused Ray’s request
to have an imam by his side when he died—a fairly clear-cut violation of the First Amendment’s
command of religious neutrality. The Eleventh Circuit Court of Appeals issued an order staying Ray’s
execution so his lawsuit could proceed.

The court’s five conservative justices lifted the Eleventh Circuit’s stay and let Ray’s execution go forward.
The majority said in a brief, unsigned statement that Ray had filed his appeal too late to be considered.
Justice Elena Kagan, joined by three colleagues, wrote a forceful dissent from what she called a
“profoundly wrong” decision. She criticized the majority for misstating the timeline in which Ray brought
the case, for ignoring his strong claim of religious discrimination, and for “short-circuiting” the normal
appellate process to reach their preferred result. Legal observers from across the political spectrum
agreed with her analysis.

Last week, in Murphy v. Collier, the court halted an execution in Texas on similar grounds. Patrick
Murphy, a Buddhist death-row inmate, challenged Texas’s practice of allowing Christian and Muslim
clergy in the execution chamber but none from his faith. Murphy’s case prompted curiosity and
speculation among court-watchers. Had some of the conservative justices reversed themselves in
response to Kagan’s public shaming and the near-universal public criticism? The court, as usual, did not
say. Justice Brett Kavanaugh alone wrote an opinion to concur with the move, stating outright that the
Constitution “prohibits such denominational discrimination.”

But Gorsuch’s majority opinion on Monday dispels any suggestion of doubt on the justices’ part. It
affirmatively cites Ray’s case as precedent and doubles down on the reasoning behind it. “For example,
we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to
bring an available claim until just 10 days before his scheduled execution for a murder he had
committed 24 years earlier,” Gorsuch wrote as part of his larger critique of execution delays. He then
offered a more substantive defense of the court’s actions in Dunn in a footnote, noting a state statute
that allows a “spiritual adviser of the condemned” to “be present at an execution,” but doesn’t specify
the level of access. “The inmate thus had long been on notice,” Gorsuch wrote, “that there was a
question whether his adviser would be allowed into the chamber or required to remain on the other
side of the glass.”

It’s stunning that five Supreme Court justices would return to a point that has been so readily disproven
by one of their colleagues. The aforementioned statute, Kagan explained back in February, “makes no
distinction between persons who may be present within the execution chamber and those who may
enter only the viewing room. And the prison refused to give Ray a copy of its own practices and
procedures (which would have made that distinction clear). So there is no reason Ray should have
known, prior to January 23, that his imam would be granted less access than the Christian chaplain to
the execution chamber.”

The Roberts Court’s support for the death penalty is not out of step with public opinion: a majority of
Americans support it, too. But in their zeal to keep capital punishment running, the justices are
increasingly twisting themselves into absurdities. Death-row prisoners with rare medical conditions have
to overcome impossible legal hurdles to avoid drowning in their own blood. Those with religious-
freedom claims must act with superhuman perceptiveness or else be faulted by a merciless court on
procedural grounds.

This is a dangerous path to trod. The Supreme Court’s legitimacy is grounded in the idea that the
Constitution is more than whatever five justices happen to think it means at any given time. The post-
Kennedy court’s approach to capital punishment suggests otherwise. The Eighth Amendment now
seems to say whatever the court’s conservative majority think it says— any interpretation will do, as
long as it keeps execution chambers running. That attitude is more corrosive to the court’s integrity
than any political maneuver could ever be.
 AT: DA Courts – Not Activist

The plan doesn’t force the Court go it alone --- it can base abolition on decades of
opinions from state and federal judges
Barry, 17 --- Professor, Quinnipiac University School of Law (Fall 2017, Kevin M., “2016 SYMPOSIUM:
THE DEATH PENALTY'S NUMBERED DAYS?: THE LAW OF ABOLITION,” 107 J. Crim. L. & Criminology 521,
Nexis Uni via Umich Libraries, JMP)

[*523] When the U.S. Supreme Court abolishes the death penalty, it will not be going it alone. Indeed,
for over a half-century, at least thirty-five federal and state judges have concluded that the death
penalty is unconstitutional per se. 5 And they have done so for remarkably similar reasons - namely,
objective criteria detailing the death penalty's unacceptability to contemporary society, the subjective
determination that the death penalty no longer serves any legitimate penological purpose, and a
recognition that the death penalty violates human dignity. 6 Taken together, these decisions form a
coherent body of law - the "law of abolition" - on which the Supreme Court should rely.
 AT: DA Courts – Doesn’t Violate SOP

Judicial action won’t violate SOP --- courts operate in ways analogous to legislature
used in England
Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

1. Generally

First, it is worth mentioning the obvious similarities and differences between British and American law
on the death penalty. For example, both countries entered a moratorium on capital punishment in the
1960s, both in disregard of public opinion. In 1965, public opinion in England favored keeping the death
penalty; nevertheless, British Parliament decided to enact the Murder (Abolition of Death Penalty) Act
1965, temporarily abolishing capital punishment in England for five years. In 1966, opinion polls in
America showed that the public also supported the death penalty, but in 1967 the death penalty was
effectively halted in every state based on two Supreme Court decisions. The moratorium in the United
States would last for ten years, but the death penalty would be reinstated in 1976 with Gregg and its
progeny. In 1969, the death penalty in England was officially abolished for murder.

One possible reason for this disparity may be the size difference between the countries. The United
States is a very large nation, consisting of over fifty separate jurisdictions, while England is much like a
single state here. Hence, it would take a great deal more change in the United States to equal the
nation-wide impact that the developments had in England around the 1960s. England abolishing the
death penalty, as a country, is much like a single state abolishing the death penalty in the United States.

The obvious, but important difference between the two countries is that England reformed its death
penalty procedures by legislative action while America is currently reforming its system judicially. In his
dissenting [*616] opinion to Furman, Chief Justice Burger said the following, which is highly relevant to
this discussion:

The world-wide trend toward limiting the use of capital punishment, a phenomenon to which we have
been urged to give great weight, hardly points the way to a judicial solution in this country under a
written Constitution. Rather, the change has generally come about through legislative action, often on a
trial basis and with the retention of the penalty for certain limited classes of crimes. Virtually nowhere
has change been wrought by so crude a tool as the Eighth Amendment. The complete and unconditional
abolition of capital punishment in this country by judicial fiat would have undermined the careful
progress of the legislative trend and foreclosed further inquiry on many as yet unanswered questions in
this area. 507

The reasoning behind this point is twofold: a separation of powers issue, and the judiciary is unable to
adequately debate the issue of capital punishment -- a largely fact-driven, not legal-driven, issue -- and it
should therefore be left to the legislature to decide. 508

However, there are many counter-arguments to this theory. For instance, in the United States, the
judiciary may present the only means through which to completely abolish the death penalty. As a
nation consisting of fifty separate states and the federal government, the only way to completely abolish
the death penalty in all states, other than through the Supreme Court, would be to add an amendment
to the Constitution abolishing the death penalty. This is an improbable action. Other than this, the
legislatures of every jurisdiction would have to debate and analyze the need for the death penalty,
which could be a very time-consuming, exhaustive solution, not to mention the fact that certain states,
unless forced, are unlikely to ever abolish the death penalty. 509 [*617]

Further, in the years after Furman, the Supreme Court has been acting similarly to the foreign
legislatures in its dwindling of the death penalty. 510 The process has been much like that of England.
The English legislature first abolished the death penalty for those under sixteen, then for those under
eighteen. Finally, the legislature limited the availability of the death penalty to only certain types of
murder before abolishing it completely. Similarly in the United States, the Supreme Court limited the
death penalty to only the most egregious types of murder in Gregg, Coker, Enmund, and Tison. 511
Further, the Court abolished the death penalty for those under sixteen in Thompson, and then finally
abolished the death penalty for those under eighteen in Simmons. This could be considered a similarity
between the two systems.

Another disadvantage to the judicial adjudication of the death penalty issue is the permanence of the
Court's judgment: if the Supreme Court proclaims the death penalty unconstitutional, the only way to
reverse that decision would be to enact a constitutional amendment allowing the use of the
punishment. 512 This, however, is similar to the current situation in England. After 1998, England
adopted two European protocols effectively requiring them to abolish the death penalty for all offenses
and never reenact [*618] the punishment. If England were to reinstate the death penalty now, they
would have to denounce the European Convention on Human Rights and the treaties of the European
Union -- an unlikely proposition. Hence, the decision in England, while decided by the legislature, was
also a permanent decision.

Another argument is that the issue of abolishing the death penalty in England was better debated by
elected officials who were forced to stay in touch with public opinion. However, while the House of
Commons is an elected body of Parliament, the House of Lords in England consists of appointed
members not elected by the general public. Further, when the Murder (Abolition of Death Penalty) Act
was passed in 1965, many of the House of Lords members were hereditary peers, whose right to be in
Parliament was passed down from generation to generation. 513 The House of Lords played an integral
role in passing death penalty legislation, as can be seen by the many years it took in England before the
Lords arrived at the same opinion as those in the Commons that capital punishment should be
abolished.

Similarly, the Supreme Court Justices are appointed in America, and thus one might argue that their
power to see the public opinion on an issue restricts them from ultimately abolishing the death penalty.
However, the Supreme Court can be seen as a similar body to the House of Lords, looking over what the
appointed members in the Commons are doing and then rendering its own judgment. The Supreme
Court bases all of its death penalty decisions greatly on what the individual legislatures in each state
have done, thus acting like the House of Lords in England.

As can be seen from the analysis above, the difference between the legislative action in England and the
judicial action in America concerning the death penalty is an important one. However, looking at the
distinction in depth, many similarities exist between the processes in both countries despite this
fundamental difference. [*619]

Concern for judicial self-restraint not a reason to vote negative --- plan won’t repeat
the error of Dred Scott
Barry, 17 --- Professor, Quinnipiac University School of Law (January 2017, Kevin, “The Death Penalty &
the Dignity Clauses,” 102 Iowa L. Rev. 383, Nexis Uni via Umich Libraries, JMP)

Even assuming sufficient public support for abolition of the death penalty, one might argue that judicial
abolition of the death penalty is inconsistent with the principle of "judicial self-restraint" underpinning
federalism and the separation of powers. 342 In his dissenting opinion in Obergefell, for example, Chief
Justice Roberts chided the majority for failing to exercise judicial self-restraint in recognizing the right of
same-sex couples to marry. 343 In support of his critique, the Chief Justice cited the infamous 1857 case
of Dred Scott v. Sandford, in which the Court invalidated the Missouri Compromise, a federal law
restricting the institution of slavery, as a violation of slaveowners' implied right of property in their
slaves. 344 In the Chief [*435] Justice's rendering, the Court in Dred Scott reached the wrong result
because it failed to exercise self-restraint; it identified a constitutionally-protected property right in
slaves that did not exist. 345 Deciding the constitutionality of the death penalty, the argument goes,
would repeat the error of Dred Scott.

But Dred Scott might have been wrongly decided for a very different reason - not because of a lack of
judicial self-restraint, but rather because of the Court's implication of the wrong right. Rather than
identifying a property right in slaves, the Court could have followed the lead of the Massachusetts
Supreme Judicial Court nearly a century earlier and held that the institution of slavery violated the
liberty rights of enslaved people. 346 Far from undermining judicial abolition of the death penalty,
then, the legacy of Dred Scott can be fairly read to support it. By declaring the death penalty
unconstitutional, the Court avoids the error of Dred Scott.
 AT: DA Courts – Already Sufficient Democratic Deliberation

***note when prepping file --- there is a version of this card in the 1ac --- I included it
here because time might not permit it being read in 1ac

There has already been sufficient democratic discourse about the death penalty –
their argument is just an excuse to delay the inevitable and let me more people be
killed
Barry, 17 --- Professor, Quinnipiac University School of Law (January 2017, Kevin, “The Death Penalty &
the Dignity Clauses,” 102 Iowa L. Rev. 383, Nexis Uni via Umich Libraries, JMP)

5. Judicial Abolition of the Death Penalty is Undemocratic

One might argue, as did the defendants in Obergefell, that there has been "insufficient democratic
discourse" to warrant invalidation of the death penalty. 334 But as Justice Kennedy wrote in Obergefell,
this inclination "to proceed with caution - to await further legislation, litigation, and debate" [*434]
should be resisted. 335 Like the debate over the freedom to marry, public controversy surrounding the
death penalty has prompted "referenda, legislative debates, and grassroots campaigns, as well as
countless studies, papers, books, and other popular and scholarly writings" 336 - in other words, the late
Justice Scalia might say, "democracy." 337 This democratic discourse has yielded a Nation that has
overwhelmingly turned its back on the death penalty. 338

More "plebiscites, legislation, persuasion, and loud voices" 339 would therefore do little good. Given
the death penalty's precipitous decline in recent years, 340 there is little indication that such measures
will revive support for the death penalty and every indication that they will merely extend the death
penalty's numbered days, prolonging the inevitable. As a result, more deliberation would do real harm,
because people would die in the interim. In Obergefell, Justice Kennedy defended the Court's decision
in favor of same-sex couples by noting that a contrary decision would impose "dignitary wounds [that]
cannot always be healed with the stroke of a pen." 341 A ruling upholding the death penalty to
encourage further debate would impose wounds of a different kind - ones that can never be healed
with the stroke of a pen.
 AT: DA Courts – Public Opinion Not Key

Public opinion polls don’t influence Court’s decisions

Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

5. The Role of Public Opinion

The German philosopher Hegel once said, "to be independent of public opinion is the first formal
condition of achieving anything great." 529 This quotation summarizes the abolitionists' stance on
capital punishment, as there has rarely ever been public support for its abolition. In both England and
the United States, public opinion polls throughout the history of the death penalty have shown support
for its retention. A recent opinion poll in England has even suggested that the public wants the
government to reinstate the death penalty as a punishment after over thirty years of its abolition for
ordinary crimes. 530 Nevertheless, opinion polls have usually made no difference to the subject of the
death penalty in either country -- as Justice Marshall stated in Furman, "American citizens know almost
nothing about capital punishment." 531

In England, public opinion during their retentionist years consistently showed the public wanted to
retain the death penalty as a punishment. Even as Parliament was decreasing the offenses eligible for
the death penalty and introducing abolition bills, public opinion was against the abolition of the death
penalty. When the Murder (Abolition of Death Penalty) Act 1965 received the royal assent and became
law, England was still a country with public support for the death penalty. Even after the abolition of the
death penalty for ordinary offenses in 1965, many public opinion polls showed the public wanted to
reintroduce the death penalty for murder, despite all the problems the country had with its Homicide
Act 1957. When England adopted the two European protocols in 1998 and completely abolished the
death penalty, Parliament was still acting without public support.

Similarly in the United States, public support has never favored the abolition of the death penalty. Other
than Marshall's opinion in Furman, [*626] the Supreme Court has only once recognized public opinion
in any of its decisions -- when the majority in Atkins mentioned in a footnote that the public supported
the abolition of the death penalty for the mentally retarded. 532 Most of the state legislatures that have
abolished the death penalty have done so despite public opinion to the contrary. When it comes to the
issue of the death penalty, public opinion polls really do not matter that much to either the Supreme
Court or the state legislatures. When enough people believe that the death penalty is inhumane and
needs to be abolished, the government will take action despite what the public thinks.
 AT: DA Progressive Opposition – Court Popular Now

Courts is most respected branch now --- has legitimacy and most are opposed to
packing the court to check conservatives
Parker, 19 (10/22/19, Kathleen, Washington Post, “People still trust the Supreme Court. Democrats,
don't mess that up.; The importance of an independent judiciary cannot be overstated,” Nexis Uni via
Umich Libraries, JMP)

Now, a new shortlist has emerged, this time from a liberal group called Demand Justice. Apparently
seeing the influence of the Federalist Society - and the election that resulted - the group has compiled its
own list of suggested nominees to pressure Democratic candidates into releasing their own, thus giving
primary voters a sense of their commitment to progressive principles. The banner leading the liberal
organization's website direly declares that the Supreme Court "has been hijacked, democracy is at stake,
and it's time for progressives to fight back."

Such hysterical claims seem misplaced in light of a new Marquette University Law School study, which
found that the judiciary is the most trusted of the three branches of government - by a large margin .
The study also found that those who pay greater attention to current events have more confidence in
the high court, as do those more familiar with the Supreme Court and its justices.

Not surprisingly, the Marquette poll also showed that highly partisan respondents see the court as
either too liberal or too conservative. But between the extremes, Americans are comfortable with the
court's more-or-less even makeup. Nearly two-thirds of those polled said the Supreme Court justices
base their decisions on the law rather than politics. To that description, I would add "facts." The facts of
a given case guide a judge's deliberations and conclusions.

The poll also asked whether the number of justices on the high court should be increased, as some
Democratic candidates have suggested, obviously to outweigh the influence of the current conservative
majority. Fifty-seven percent of respondents were opposed.

This past July, opposition to "court packing" was articulated by none other than progressive heroine
Justice Ruth Bader Ginsburg. During an interview with NPR, she said that increasing the number of
justices would be damaging to the court and the country.

"If anything would make the court look partisan," she said, "it would be that - one side saying, 'when
we're in power, we're going to enlarge the number of judges, so we would have more people who
would vote the way we want them to.' "

Ginsburg's comments speak to the importance of an independent judiciary, which, in the Supreme
Court's case, is further safeguarded by the justices' lifetime tenures and the fact that Congress can't
reduce their salaries, potentially in retaliation for a ruling it doesn't like. These protections are enshrined
in the Constitution.

Nevertheless, the Marquette study found that 72 percent of respondents prefer term limits to lifetime
appointments. Any such change would require a constitutional amendment, which doesn't worry
Ginsburg. During the same interview, she said: "Our Constitution is powerfully hard to amend." Indeed,
an amendment would require the approval of two-thirds of the Senate and House and three-fourths of
state legislatures.

Given the relatively high level of trust in the Supreme Court - and the majority view that the court
rules by law rather than by politics - Demand Justice's shortlist seems way off base. Only eight of the 32
people listed are currently judges, and the group opposes nominees with any corporate experience. The
list is heavy with activists - public defenders, public-interest lawyers, academics and plaintiff lawyers.

Here's the problem: When people have a judicial background, there's a record by which to judge their
philosophy and judicial temperament, roughly defined as respect for the law, for other judges and for
the litigants. And while the folks at Demand Justice don't seem to share these concerns, they're right to
want to see the Democratic candidates' lists. One would hope the Democratic nominee would favor
experienced judges whose records can be assessed - and whose philosophy closely reflects the wisdom
of the notorious RBG.

Court is comparatively more popular than other branches

Neidig, 19 (10/31/19, Harper, “Divisive docket to test Supreme Court ahead of 2020,”
https://thehill.com/regulation/court-battles/468224-divisive-docket-to-test-supreme-court-ahead-of-
2020, accessed on 4/29/2020, JMP)

The controversial docket comes at a time when the court still enjoys favorable approval ratings from
the public, according to recent polling, despite the bitter partisan confirmation battle for Justice Brett
Kavanaugh last year and Senate Republicans’ refusal to take up President Obama’s nominee Merrick
Garland in the last year of his presidency.

A recent Gallup poll found that a slight majority, 54 percent, of Americans approve of the job the court is
doing.

Another survey, from Marquette Law School, shows that 79 percent express confidence in the Supreme
Court, including 42 percent saying they have some confidence and 37 percent saying they have a great
deal or quite a lot.

And the University of Pennsylvania’s Annenberg Public Policy Center found that 68 percent of Americans
have a great deal or fair amount of trust that the court acts in their best interest.

Jeffrey M. Jones, a senior polling editor with Gallup, says that it’s not unusual for the court to enjoy
higher approval ratings than other government bodies, since it is usually seen as staying above the
political fray.

“Typically, people have more trust in the judicial branch than in the executive and legislative. I think
that's because it's at least nominally nonpartisan,” Jones told The Hill. “I don't think people are as
familiar either, certainly, with what the court is doing as they are with what the president is doing
because the court doesn't get as much attention.”
 AT: DA Progressive Opposition – Court Thumper

Court and Trump can engage in many types of voter suppression and misinformation
to swing the election for Republicans
Psaki, 4/7/2020 --- White House communications director and State Department spokeswoman during
the Obama administration (Jen, “The Supreme Court is tipping the scales toward Trump's reelection,”
https://www.cnn.com/2020/04/07/opinions/supreme-court-tipping-scales-trump-reelection-
psaki/index.html, accessed on 5/3/2020, JMP)

So, here is the scary part. This goes far beyond the primary election in April. The ability of Americans to
safely vote from home may be a determining factor in the outcome of the presidential election in
November.

It is at the discretion of the states to make laws regarding absentee and vote by mail ballot options. And,
in this particular case, Wisconsin Gov. Tony Evers even called the legislature into an unsuccessful special
session to attempt to delay the primary election.

Making voting easier often means that more people vote. According to one study conducted by
Nonprofit Vote and the US Elections Project, in the six states with the highest turnout in the 2016
presidential election, all offered same-day voter registration. In addition, voting by mail has been shown
to dramatically increase turnout in states from California to Nebraska.

Without a national mandate that Americans, during a time of a health crisis, should have the right to
vote by mail, the possibilities for suppression are also endless .

As crazy as it may sound, President Donald Trump could use fear around public gatherings as a
justification for working with Republican governors to shut down polling locations. We've seen
Republicans shutter poll locations before -- most recently in Texas, where over 700 polling locations,
many in minority neighborhoods, were closed after the 2013 Supreme Court decision, ending the
requirement of several states (mostly in the South) to seek federal approval before changing their
election laws.

On Super Tuesday this year, many in Texas stood in long lines -- and not just because of their enthusiasm
for the candidates, but because they had limited options for locations to vote.

Trump could also work with states to narrow the hours voters can go to the polls, thus limiting options
for early voting. And he could use the health and safety argument to give him cover.

And there should be little doubt Trump could turn a blind eye to deceptive voter information going
out on social media platforms and via robocalls about canceled election days -- and false reports of new
requirements at the polls, given how he has handled his role as a public communicator around the
coronavirus.

Rather than presenting a clear and honest daily assessment of the facts, Trump has trumpeted half-
baked science -- including the efficacy of certain drug for treatment -- instead of following the lead of his
scientists.
But it's not just about how and when people can vote. Conservative members of the Supreme Court are
also influencing the information people have access to in advance of the election.

In March, the Supreme Court took the unprecedented step of delaying oral arguments, scheduled for
March 31 -- including several cases involving efforts to obtain Trump's financial records. At the time, part
of the explanation cited the precedent of delays prompted by the 1918 Spanish flu epidemic.

Never mind that, since 1918, the telephone, the internet and video conferencing have all been invented
-- allowing for a range of means of communicating while still observing proper social distancing
measures.

While there are certainly delays across the country, many lower and state courts have also found a way
to adapt. For the federal circuit, lawyers are presenting arguments by telephone -- without significant
delays to scheduled timelines. In the Southern District of New York, for example, judges are
"encouraged to conduct proceedings by telephone or video conferencing where practicable."

Even in Washington state, where Gov. Jay Inslee put in place stringent stay at home orders, the court is
proceeding with video and telephone conference as appropriate

What does the Supreme Court's decision to delay arguments mean?

For one, the planned oral arguments that would ideally lead to a June decision on whether Trump's tax
records should be turned over to the House and local prosecutors in New York may not happen before
the election. And this matters because Trump's tax returns could show a range of potential conflicts of
interest by revealing who invests in his businesses, perhaps explaining why he appears so sympathetic to
authoritarian leaders in Russia and Saudi Arabia, and how much Trump properties have made off of
taxpayers since he was elected to office. (Trump denies any wrongdoing.)

In short, the highest court in the land has not found a way to hear oral arguments, including on topics
that could be consequential to voters this election cycle, like the tax records of the President of the
United States, but it has made an exception to put the people of Wisconsin at risk by refusing to extend
the deadline for absentee ballots.

To quote Ginsburg in her dissent on the Wisconsin decision, "It's mind-boggling."

The decision by the conservative-majority Supreme Court to make it harder for people in Wisconsin to
vote should be a warning sign that Trump and the conservative court he and Senator Majority Leader
Mitch McConnell helped shape will stop at nothing to get him reelected.

And we need to be ready.

 AT: DA Progressive Opposition – Courts Good

The Court is on balance good --- it’s better to improve it than discredit it
Hemel, 18 --- assistant professor at the University of Chicago Law School (10/11/18, Daniel, “The
Supreme Court Is a Bulwark of Democracy,” https://slate.com/news-and-politics/2018/10/supreme-
court-good-history.html, accessed on 12/16/18, JMP)

The Kavanaugh confirmation presents a challenge for progressives like me who want to see the Supreme
Court continue to play an influential role in American political life. While the justices are no doubt
influenced by ideology, they generally strive to stay above petty party politics. Not Brett Kavanaugh—or,
at least, not the Brett Kavanaugh who appeared before the Senate Judiciary Committee at the end of
last month. “Revenge on behalf of the Clintons.” “What goes around comes around.” These are the
words of a partisan warrior, not an ostensibly neutral jurist. They will continue to resonate in our
memories as long as Justice Kavanaugh remains on the bench.

But while Kavanaugh’s words were potent, the institution that he joins is feeble. The court is, by
design, the “least dangerous” branch, in Hamilton’s words. It lacks both the power of the sword and the
power of the purse, and therefore must rely on the explicitly “political” branches—the executive and the
legislature—to enforce its decisions. It therefore cannot speed too far ahead, or lag too far behind, the
existing political consensus. Political scientist Robert Dahl got it right six decades ago when he wrote
that “except for short-lived transitional periods … the Supreme Court is inevitably a part of the dominant
national alliance,” and “in the absence of substantial agreement within the alliance, an attempt by the
Court to make national policy is likely to lead to disaster.”

Nor should we want it any other way. The linchpin of democratic legitimacy is consent, and a tribunal of
unelected judges who could dictate national policy without the consent of the electorate or the political
branches would be an illegitimate institution in a democratic society. The Supreme Court cannot
countermand the political branches unless the political branches acquiesce to its rulings. Historically
they have, but only because historically the court has not cut loose from the dominant national alliance
—at least, not for long.

Which is not to say that the court is an irrelevant institution. To the contrary, and notwithstanding its
ultimate dependence on the political branches, the court still can serve a restraining function when the
political branches stray too far from core constitutional commitments. It cannot “save a people from
ruin,” as then–Harvard law professor James Bradley Thayer recognized at the end of the 19th century,
but it can spur the political branches to reconsider decisions that disregard fundamental and widely
shared values. In former Yale law professor Alexander Bickel’s oft-quoted words, the court can remind
us of that “which may have been forgotten in the moment’s hue and cry.”

The court has not always performed this function of providing a “sober second thought” when fear and
paranoia have intoxicated the political branches. But it often has. It is correct to mention—and lament—
the court’s reprehensible decision in Korematsu v. United States, but we often forget that on the same
day as Korematsu, the court ruled unanimously in Ex Parte Endo that the Roosevelt administration could
not hold American citizens in military detention merely on account of their Japanese ancestry. We
should remember the internment of Japanese Americans as a horrific episode in our country’s history,
but we also should remember that it was that same court that brought that episode to an end.

Ex Parte Endo does not stand alone. From the 1866 decision in Ex Parte Milligan (which protected
citizens’ access to civilian courts in wartime) to the 1971 decision allowing publication of the Pentagon
Papers and the post-9/11 Guantánamo cases, the court—usually by bipartisan majorities—has served
as a check on the other branches’ worst excesses. Not always, to be sure; the court’s signoff on
President Trump’s third travel ban may go down in history as another instance in which judicial
safeguards failed. Yet even in the travel-ban litigation, it was the failure of the first travel ban in court
(albeit at one level below the Supreme) that prompted the president to pare back some of the most
onerous restrictions.

Beyond its function as a check on jingoistic hysteria, the Supreme Court also at times has played a
“representation-reinforcing” role, striking down laws that prevent racial and political minorities from
participating effectively in the political process. For example, in the first half of the 20th century, the
court invalidated state laws that excluded black Americans from voting in primaries. In the 1964 case
Reynolds v. Sims, the court established the principle of “one person, one vote,” which led to the
invalidation of state legislative districts with grossly unequal populations. Over the next several decades,
the court repeatedly struck down state laws that precluded political minorities (Communists, socialists,
and right-wingers alike) from gaining access to the ballot. Here, the court’s worst errors have resulted
not from overreach but from its reluctance to go further on subjects such as partisan gerrymandering
and voter identification. The principal problem with the court’s voting-rights jurisprudence has not been
“too much constitutionalism,” but too little.

In addition to serving as a restraining force and a representation re-enforcer, the court has—on a few
occasions—gotten a half step ahead of progressive social change. Brown is one example. To be sure, far
too many school systems still are divided on racial lines, but court-ordered desegregation has had
meaningful effects on educational attainment for black Americans in the places where it occurred.
Lawrence v. Texas was largely symbolic, but the marriage-equality ruling a dozen years later in
Obergefell v. Hodges was much more than symbolic for the tens of thousands of same-sex couples who
have wed since June 2015 in states that previously banned their unions. Roe v. Wade may have been a
disaster politically, but the pre-Roe status quo was even more of a disaster for the thousands of
women who died due to back-alley abortions in the decades before the ruling.

True, the court also has slowed progressive change at various junctures. But the court can do no more
than throw sand in the gears—it cannot bring the engine to a halt . Progressive reforms stalled at the
beginning of the 20th century not primarily on account of the Lochner court but because progressives
lost control of Congress and the presidency at the ballot box. The court interfered with FDR’s First New
Deal but ultimately allowed the most important elements of the Second New Deal to take effect. More
recently, the Roberts court made way for the key parts of the Affordable Care Act, and while it did
impede the ACA’s Medicaid expansion, the chief obstacle to universal health care was not judicial
opposition—it was the Republican victories in special and midterm elections in 2010.

And then there is Citizens United. A far harder case than critics on the left often acknowledge, it is a far
less consequential one as well. The much more important impediment to meaningful campaign finance
reform is the lack of political will for a robust public financing system. If such will ever coalesces, it is
doubtful that the court can stop the popular juggernaut for long. In the past, it never has.
In sum, the court’s worst moments have been moments of weakness, not overexertions of strength. It
will forever be the least dangerous branch, but that is no reason to enfeeble it further. Concededly,
now-Justice Kavanaugh’s recent testimony leaves one to wonder whether he will supply the “sober
second thought” that the court, in its finest moments, can provide. But an institution is more than any
one individual, and moreover, we should be playing a long game here.
 AT: DA Progressive Opposition – No Impact

EITHER there is no impact ---

Roberts will ensure the Court doesn’t move significantly to the right
Baum & Devins, 18 --- *emeritus professor of political science at Ohio State University, AND
**professor of law at William & Mary (10/5/18, Lawrence Baum and Neal Devins, “The hidden silver
lining if Kavanaugh is confirmed,” https://www.washingtonpost.com/opinions/the-hidden-silver-lining-
if-kavanaugh-is-confirmed/2018/10/05/fc2d7fb6-c8ce-11e8-b2b5-79270f9cce17_story.html?
utm_term=.97eba031edd5, accessed on 12/18/18, JMP)

Democrats may find a surprising silver lining in the impending confirmation of Judge Brett M.
Kavanaugh: Chief Justice John G. Roberts Jr. With Kavanaugh replacing the more moderate Anthony M.
Kennedy, Roberts will now sit at the ideological center of the court. And the Kavanaugh fight may move
Roberts to show more restraint in the pursuit of conservative goals than if some other Republican
nominee had been confirmed.

No doubt, Roberts is a conservative with strong views about many of the issues the court addresses.
With four even more conservative justices now on the court, Roberts is well positioned to see his views
adopted into law. But as chief, he has a special responsibility regarding the court as an institution,
including maintaining the court’s standing by fostering its esteem among the general public (and, in
particular, the subset of the public that pays close attention to the court).

Even before the Kavanaugh imbroglio, Roberts had reason to worry. Public opinion surveys show that
approval of the court’s work has been fluctuating, and that undoubtedly concerns Roberts and other
justices.

Especially striking is the polarization of attitudes toward the court along party lines. Following the
election of President Trump, Republicans were far more likely than Democrats to approve of the court’s
performance; when Barack Obama was president, it was the opposite. This pattern almost certainly is
tied to a growing belief that the court is simply another political institution and that the justices act on a
partisan basis.

Several justices have bemoaned this development. This is especially true of Roberts, who has decried
today’s “sharply political, divisive” confirmation fights, adding: “We don’t work as Democrats or
Republicans, and I think it’s a very unfortunate impression the public might get from the confirmation
process.”

Perhaps for this reason, Roberts occasionally moderates his conservatism. He stresses that 5-to-4
decisions hurt the court and the rule of law and has given numerous speeches touting the need for the
court to speak unanimously by doing only “what’s necessary to decide the case.”

While that principle did not stop the chief justice from helping to gut the Voting Rights Act or campaign
finance legislation, Roberts has sometimes steered the court away from sharply divided opinions when it
can reach narrow consensus rulings. Almost surely, he helped broker compromises on the Affordable
Care Act’s contraception mandate and on the First Amendment rights of bakers who refused to
participate in same-sex marriages. And when the court was shorthanded for a year after Justice Antonin
Scalia’s death, Roberts likely played a major role in its effort to avoid hearing cases that would produce
inconclusive tie votes.

More tellingly, Roberts drew the ire of Trump and other Republicans by upholding the Affordable Care
Act in 2012. Roberts’s decisive vote may have stemmed in part from his desire to avoid striking down a
major law on a party-line vote. And unlike the court’s other Republican-appointed members, Roberts
has limited his interactions with the conservative legal community.

The debilitating political rancor over the Kavanaugh confirmation has deepened the perception that the
court is caught up in partisan politics, and statements in Kavanaugh’s testimony suggested that he will
bring strong partisan feelings with him when he joins the court (so much so that Kavanaugh felt the
need to write an opinion piece expressing regrets about saying “things I should not have said”). We can
expect Roberts to fight that perception. He undoubtedly would prefer to tie his legacy to efforts in
making the court appear above politics, not to presiding over the most partisan court in the nation’s
history.

For that reason, Roberts might try to guide the court’s agenda away from abortion, campaign finance
and other cases where the risk of partisan division is great . Through his presiding role in the court’s
conferences and his assignment of court opinions, he might redouble his efforts to find compromises
that avoid party-line votes in cases. And to the same end, he may consciously soften his own positions
on some issues.

None of this means that Roberts will become a judicial moderate, let alone a liberal. He will continue his
efforts to move judicial doctrine to the right on issues that he cares about. The appointment of a strong
conservative to the court will enhance his success in those efforts and will have a substantial impact on
the court’s decisions. But because Roberts takes his responsibilities as chief justice so seriously, the
accession of Kavanaugh might not affect the court’s policies as much as many observers expect.

OR, the impact is inevitable because Roberts will refuse to moderate the court in
response to progressive pressure
Blumenthal, 18 --- reporter at HuffPost, previously worked as the senior writer for The Sunlight
Foundation (11/25/18, Paul, “Kavanaugh And Gorsuch Confirmations Force Progressives To Rethink The
Supreme Court; The new debate is about how best to challenge the court’s power,”
https://www.huffingtonpost.com/entry/supreme-court-kavanaugh-
gorsuch_us_5bf806e3e4b0771fb6b8489a, accessed on 12/18/18, JMP)

A Switch in Time?

As progressives are discussing their path to taming the court, the debate over these proposals may be
serving its own purpose, according to Amanda Frost, a law professor at American University.

“I’m not a fan of packing the court or term limits, but I’m not afraid of talking about it,” Frost said.
Talking about it puts political pressure on the court. That is the real lesson of President Franklin
Roosevelt’s failed attempt to pack the court in 1937, Frost argues.

Roosevelt’s court-packing scheme is remembered as an extreme overreach of power, but the pressure it
brought to bear on the court may have forced at least one justice to abandon the pro-business Lochner-
era jurisprudence to uphold the minimum wage. Justice Owen Roberts’ flip to the liberals on the issue of
the minimum wage ― “the switch in time that saved nine” ― is remembered as the birth of the New
Deal Court which also put a nail in the coffin of Roosevelt’s court-packing plan. Roberts’ flip made the
packing plan redundant.

There’s another Roberts sitting as the swing justice today. Maybe the current chief justice will
listen to public pressure when it comes calling 10 or 20 years down the line. Part
of the present problem, however, is that progressives already know that he won’t.

Kavanaugh’s impact exaggerated --- can be checked by congress, state courts or voters
Raban, 18 --- Professor of Constitutional Law, University of Oregon (11/24/18, Ofer, “Kavanaugh’s
impact on the Supreme Court and the country may not be as profound as predicted; Supreme Court
rulings are often not the last word on a matter,” https://www.salon.com/2018/11/24/kavanaughs-
impact-on-the-supreme-court-and-the-country-may-not-be-as-profound-as-predicted_partner/,
accessed on 12/18/18, JMP)

Brett Kavanaugh’s appointment to the Supreme Court has been widely predicted to plunge the court —
and American law with it — into a new conservative era.

The main areas of concern include reproductive rights, LGBT rights, affirmative action, environmental
regulations, criminal punishments, gun rights and voting rights.

But these prognoses fail to heed some fundamental distinctions among the decisions of the Supreme
Court, and may create a mistaken impression of the court’s power and the inevitable trajectory of
American law.

Simply put, Supreme Court rulings are often not the last word on a matter.

What the court does

The U.S. Supreme Court performs two primary tasks: interpretation of federal laws and interpretation of
the federal Constitution.

The Supreme Court has the final authority to determine what laws enacted by Congress require. But its
determinations can always be reversed by Congress, which has the power to amend or repeal the laws
it has passed.

For example: In 1964 Congress gave employees the right to sue their employers for discrimination based
on gender. In 2007, a 5-4 conservative majority read that law in a way that limited the available
compensation for women suing for equal pay. Within two years Congress responded by increasing the
available compensation.
The Supreme Court also has final authority to determine what the U.S. Constitution requires. It does so
by deciding cases that challenge the constitutionality of federal and state laws. Generally speaking, the
court either declares the law in question to be constitutional or unconstitutional.

When the court declares that a law is constitutional, it effectively steps out of the way of decisions made
by other branches of government. But those other branches can always change their decisions.

For example, in 1990 the court ruled that Oregon’s prohibition of the use of a hallucinogenic in religious
Native American ceremonies was constitutional. The ruling allowed the Oregon legislature to criminalize
such use.

But the Oregon legislature remained free to amend or repeal the law – which it promptly did. Within a
year of the Supreme Court decision, the Oregon legislature amended its law to allow the consumption of
peyote in religious ceremonies.

Moreover, when the Supreme Court declares that a state law is constitutional under the U.S.
Constitution, state courts are free to decide that the law is unconstitutional under their own
constitutions.

For example: After the Supreme Court decided that a Georgia law criminalizing sodomy was
constitutional, the Georgia courts declared the law unconstitutional under the Georgia Constitution.

State constitutions can provide more rights and liberties than those protected by the federal
Constitution. All 50 states have their own constitutions which are often easy to amend. And most state
judges – who have the final authority over state constitutions – are elected for office, making them
responsive to public opinion.

Decisions that cannot be undone

Things are different when the Supreme Court declares that a law violates the U.S. Constitution.

When the Supreme Court declares a law unconstitutional, its ruling is the final word. Congress, state
legislatures or state courts cannot make such Supreme Court decisions go away. These decisions can be
overridden only by a constitutional amendment – which, at the federal level, is almost impossible to
attain. There have been only 17 amendments in the past 223 years.

For example, when the court declared in 2003 that a Texas statute making sodomy a crime was
unconstitutional, neither the Texas legislature, nor the Texas courts, nor Congress could change or
repeal that decision.

Heeding this distinction — between Supreme Court decisions that are the final word on an issue and
those that can be undone – is important for a fuller appraisal of Kavanaugh’s expected impact.

Recourse in some decisions

Many of the concerns over Kavanaugh’s appointment are about potential decisions that can be
reversed by the democratic process.

Take environmental regulations.

Worries about an anti-environmentalist Supreme Court are largely concerns about the court’s statutory
interpretation. That means that decisions in this area can mostly be amended or overruled through the
legislative process.

For instance, one central environmentalist concern with Kavanaugh is that the court will cease to defer
to the decisions of the Environmental Protection Agency. But such rulings, if they occur, would be based
on the court’s interpretation of federal laws. And these laws could always be amended by Congress.

Or take abortion: Those who fear Kavanaugh’s impact on abortion rights are almost exclusively worried
that the court would uphold state laws that restrict access to abortions – like the 2013 Texas law that
caused the closure of several abortion clinics in that state.

But such Supreme Court rulings can be countered at the ballot box, where voters could install state
lawmakers or judges who would expand abortion rights.

There is an important qualification to this general rule. While Supreme Court decisions that declare laws
to be constitutional can be made irrelevant by legislatures or by state courts, things are trickier when it
comes to laws that distort our democracy - like onerous voter ID requirements or gerrymandered voting
districts.

After all, such decisions impact the composition of the very institutions that could remedy the issue.
Officials elected thanks to voter suppression or political gerrymandering are not likely to repeal such
measures. Thus, Supreme Court decisions that uphold antidemocratic measures should also count as
potentially irremediable.

No significant difference

The Supreme Court wields its most significant and enduring power when it makes decisions that cannot
be remedied by the democratic process. So it makes sense to pay particular attention to those kinds of
decisions when examining the significance of Kavanaugh’s appointment.

Liberals’ concerns over the court’s irremediable decisions are primarily about gun control, affirmative
action, religious exemptions for LGBTQ anti-discrimination requirements, campaign finance regulations,
and upholding laws that distort our democracy.

But when it comes to these areas, it is hard to see how Kavanaugh could make a significant difference.
The major turns to the right have already occurred.

Since John Roberts became chief justice, the Supreme Court had already invalidated gun controls by
revolutionizing Second Amendment doctrine. It had already invalidated numerous campaign finance
regulations and extended constitutional protections to what many regard as political corruption; it had
already invalidated the enforcement of an LGBT anti-discrimination measure on grounds of religious
freedom; and it already invalidated affirmative action admission programs at K-12 schools.

As for laws that distort our democracy: The Roberts Court had already upheld a voter ID law described
as voter suppression; upheld Ohio’s aggressive purges of its voter rolls; and had never met a case of
political gerrymandering — which effectively imposes a minority rule — that it did not find
constitutional.
The Roberts Court was already the most conservative Supreme Court in many decades — even before
Kavanaugh’s appointment, and also before Neil Gorsuch’s. It is worth remembering, though, that the
American public is not without recourse. Many of the court’s past and future decisions can be undone
at the ballot box.
 AT: DA Progressive Opposition – Backlash Turn Answer

This is an excuse to delay the inevitable end of the death penalty --- the whole point of
our affirmative is that abolition will only happen if the Court is willing to confront
popular opinion --- it can’t repeat the same mistake it made with slavery. That’s Barry
17.

There has already been sufficient democratic discourse and they just let more people
be killed
Barry, 17 --- Professor, Quinnipiac University School of Law (January 2017, Kevin, “The Death Penalty &
the Dignity Clauses,” 102 Iowa L. Rev. 383, Nexis Uni via Umich Libraries, JMP)

5. Judicial Abolition of the Death Penalty is Undemocratic

One might argue, as did the defendants in Obergefell, that there has been "insufficient democratic
discourse" to warrant invalidation of the death penalty. 334 But as Justice Kennedy wrote in Obergefell,
this inclination "to proceed with caution - to await further legislation, litigation, and debate" [*434]
should be resisted. 335 Like the debate over the freedom to marry, public controversy surrounding the
death penalty has prompted "referenda, legislative debates, and grassroots campaigns, as well as
countless studies, papers, books, and other popular and scholarly writings" 336 - in other words, the late
Justice Scalia might say, "democracy." 337 This democratic discourse has yielded a Nation that has
overwhelmingly turned its back on the death penalty. 338

More "plebiscites, legislation, persuasion, and loud voices" 339 would therefore do little good. Given
the death penalty's precipitous decline in recent years, 340 there is little indication that such measures
will revive support for the death penalty and every indication that they will merely extend the death
penalty's numbered days, prolonging the inevitable. As a result, more deliberation would do real harm,
because people would die in the interim. In Obergefell, Justice Kennedy defended the Court's decision
in favor of same-sex couples by noting that a contrary decision would impose "dignitary wounds [that]
cannot always be healed with the stroke of a pen." 341 A ruling upholding the death penalty to
encourage further debate would impose wounds of a different kind - ones that can never be healed
with the stroke of a pen.

Giving in to the backlash is what allows it to continue --- only voting aff has a chance
to confront it
Barry & Malkani, 17 --- *Professor at Quinnipiac University School of Law, AND **Lecturer at
Birmingham Law School (Kevin & Bharat, “THE DEATH PENALTY'S DARKSIDE: A RESPONSE TO PHYLLIS
GOLDFARB'S MATTERS OF STRATA: RACE, GENDER, AND CLASS STRUCTURES IN CAPITAL CASES,” 74
Wash. & Lee L. Rev. Online 184, Nexis Uni via Umich Libraries, JMP)

The reluctance of courts to explicitly use the word "slavery," or to squarely confront the ways in which
the legacy of slavery is woven into the fabric of capital punishment, can mean only one of three things.
First, there simply is no connection between slavery and the modern death penalty: the past is in the
past, thanks to procedural safeguards imposed by the Supreme Court. Second, there is a connection, but
courts are not troubled by it. Or third, there is a troubling connection, but there is nothing courts can do
about it.

The first conclusion is untenable. The Court in Gregg did not sever the death penalty's ties to slavery and
racial subordination, 102 and the regional differences in the application of the death penalty are not
coincidental. As Goldfarb ably demonstrates, racial animus and stereotypes are not issues that affect
some cases but not others. 103 The entire death penalty system is steeped in the values and beliefs
that underpinned slavery; the notion that some people do not belong to the moral and political
human community and can be treated and discarded as mere objects instead. 104

The second conclusion is unthinkable. The Court, as a chronicler

of history, has an
obligation to expose the death penalty's roots in slavery. 105 By remaining silent,
the Court legitimizes a racial legacy that continues to drive the death penalty
today.
The third conclusion is unacceptable. There is much the Court can do and little to prevent it from doing
so. We turn now to the ways in which several state supreme court justices have addressed the death
penalty's connections to slavery, and how and why the Supreme Court and state and federal lower
courts should do the same.

Shouldn’t be relevant to the decision

Barry & Malkani, 17 --- *Professor at Quinnipiac University School of Law, AND **Lecturer at
Birmingham Law School (Kevin & Bharat, “THE DEATH PENALTY'S DARKSIDE: A RESPONSE TO PHYLLIS
GOLDFARB'S MATTERS OF STRATA: RACE, GENDER, AND CLASS STRUCTURES IN CAPITAL CASES,” 74
Wash. & Lee L. Rev. Online 184, Nexis Uni via Umich Libraries, JMP)

Clearly, courts troubled by the death penalty's connection to slavery can address this connection in their
jurisprudence. But there are many reasons why courts may not want to do so, including: concern with
alienating southern states by depicting them as "racist"; the McCleskey majority's concern with opening
the floodgates to arguments over the role of racism and the legacy of slavery in non-capital cases; 124
and an abiding faith that race can be removed from the equation of death in the future without wading
into an ugly past. None of these reasons is persuasive.

The alienation of southern states is a legitimate concern but should not guide the courts in deciding to
address slavery. Not all southerners lost the Civil War; for many of the descendants of enslaved people
and whites whose homes dotted the Underground Railroad, their South won. Similarly, not all
southerners support the death penalty. A decision acknowledging the death penalty's ties to slavery
does not disparage a monolithic South; rather, it pays tribute to southern voices that have not been
heard. 125 Acknowledging these ties, moreover, does not require calling anyone a "racist." As
Connecticut Supreme Court Justices Norcott and McDonald stated, "[t]he types of subtle biases that
influence members of the majority to make decisions favoring their own race may well be inevitable,
albeit regrettable. When unconsciously made, they do not inherently impugn the diligent and good faith
work of our prosecutors, police, judges, and jurors." 126
 AT: DA Progressive Opposition – No Rollback / Circumvention

The plan could only be reversed by a constitutional amendment

Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

Another disadvantage to the judicial adjudication of the death penalty issue is the permanence of the
Court's judgment: if the Supreme Court proclaims the death penalty unconstitutional, the only way to
reverse that decision would be to enact a constitutional amendment allowing the use of the
punishment. 512 This, however, is similar to the current situation in England. After 1998, England
adopted two European protocols effectively requiring them to abolish the death penalty for all offenses
and never reenact [*618] the punishment. If England were to reinstate the death penalty now, they
would have to denounce the European Convention on Human Rights and the treaties of the European
Union -- an unlikely proposition. Hence, the decision in England, while decided by the legislature, was
also a permanent decision.
 AT: DA Nuclear Deterrence – Capabilities O/W Intentions

U.S. intentions are already being questioned --- credibility of deterrence now
determined by capabilities
Yoshida, 19 --- associate professor at the Department of Law, Kindai University (10/20/19, Shingo,
“Mixed messages on nuclear deterrence,”
https://www.japantimes.co.jp/opinion/2019/10/20/commentary/japan-commentary/mixed-messages-
nuclear-deterrence/#.XqR3dWhKhPY, accessed on 4/25/2020, JMP)

HIGASHIOSAKA, OSAKA PREF. – The credibility of the U.S. extended nuclear deterrence is a critical issue
that goes beyond the question of Japanese psychology and perception. It potentially influences the
direction of Japan’s security policy, compellence and/or attacks by adversaries on Japan, and even Asian
stability.

Japan’s faith in the extended U.S. nuclear deterrence was shaken even before the Trump era. Since the
end of the Cold War, China has steadily modernized and built up its nuclear forces, and the survivability
and penetrability of its strategic nuclear forces targeting the United States has improved.

In the 2010s, North Korea bolstered nonstrategic nuclear forces targeting Japan and moved toward the
acquisition of strategic nuclear forces that kept the U.S. within range. These developments not only
heightened Japan’s threat perception of China and North Korea but also made Japan increasingly
concerned about a possible decoupling between Japan and the U.S.: “Will the U.S. defend Japan even if
its mainland is exposed to danger?”

In addition, the downsizing of U.S. nuclear forces under the Obama administration caused Japanese
conservative politicians and security officials to be skeptical of the appropriateness of the U.S.
deterrence posture. In particular, the retirement of the TLAM-N, a nonstrategic nuclear-tipped cruise
missile whose variants can be launched from a variety of platforms, including submarines, increased
concerns about the decoupling between Japan and the U.S. because it could result in a situation where
the U.S. deterrence posture in Asia depends solely on strategic nuclear forces and could create a gap in
the U.S. escalation ladder.

Moreover, the victory of Donald Trump, who bluntly criticized the Japan-U.S. alliance for its inequality
and provided verbal approval of Japan’s nuclear armament during the U.S. presidential election
campaign in 2016, triggered a general skepticism that the U.S. would be reluctant to engage in Japanese
security.

Immediately after his inauguration, Trump issued a reassuring statement following a summit with Prime
Minister Shinzo Abe: “The U.S. commitment to defend Japan through the full range of U.S. military
capabilities, both nuclear and conventional, is unwavering.” In response to North Korea’s launch of
ballistic missiles the following day, he added publicly, “The United States of America stands behind
Japan, its great ally, 100 percent.” The resolve shown by the new and mercurial U.S. president on
extended nuclear deterrence offered Japan a sense of security.

More important to Japan was the fact that the Trump administration reinforced the U.S. commitment by
building up its nuclear forces. Stating that “the United States will enhance the flexibility and range of its
tailored deterrence options for its and allied security,” the Nuclear Posture Review (NPR) in February
2018 announced the development of nonstrategic nuclear forces — a low-yield sea-launched ballistic
missile (SLBM) warhead and a new submarine-launched cruise missile (SLCM). The NPR featured these
as alternatives to TLAM-N, which had contributed to the deterrence extended to U.S. allies in Asia.

This measure was exactly what Japanese conservative politicians and security officials had sought in
order to close the gap in the U.S. escalation ladder. For this reason, the Abe administration praised the
NPR as demonstrated by the foreign minister’s comment that it clarified “the U.S. resolve to ensure the
effectiveness of its deterrence and its commitment to providing extended deterrence to its allies
including Japan.”

To be sure, the U.S. building up its nonstrategic nuclear forces creates the strategic issue of lowering the
nuclear threshold and political issues over the introduction of nuclear weapons on allies’ soil. But in the
current Asian security environment, it also increases the credibility of U.S. extended deterrence.

At the same time, however, the Trump administration has been heightening Japan’s concerns about U.S.
credibility. Trump’s dramatic shift in policy toward North Korea has had a particularly large impact. In
a sudden decision in March 2018, he elected to meet with North Korean leader Kim Jong Un. The Trump-
Kim summit in June brought an end to the strict complete, verifiable, irreversible denuclearization
(CVID) expression that had hitherto been used to describe U.S. demands vis-a-vis Pyongyang’s nuclear
weapons program.

When North Korea launched a number of short-range missiles this summer, the Trump administration
repeatedly stated that it did not see that as a problem.

On the surface, the Japanese government has acknowledged the U.S. shift in North Korean policy. But
the change could leave Japan feeling somewhat skeptical about Washington’s will to provide extended
nuclear deterrence. The Abe administration had been applying maximum pressure on North Korea in
collaboration with the Trump administration, with a focus on CVID. But the U.S. changed its policy
without prior consultation, effectively leaving Japan behind. For Tokyo this only served to reconfirm
Trump’s unpredictability and it is increasingly worried that he may make a “deal” with North Korea that
ignores Japanese security.

More specifically, Tokyo is concerned about the possibility of agreements on freezing strategic nuclear
forces that reach the U.S., allowing Pyongyang to maintain nonstrategic nuclear forces that do not reach
the U.S. but keep Japan within range.

The Trump administration’s acceptance of North Korea firing short-range missiles shows that this
concern is hardly misplaced. If the U.S. were to reach such an agreement, Japan will conclude that
Washington has sacrificed the security of an ally for the sake of its own interests. This would decisively
increase Japan’s feelings of distrust in the U.S. as a provider of extended nuclear deterrence.

In general, the credibility of extended deterrence depends on the intentions and capabilities of the state
offering it. As the U.S. president’s repeated contradictions of earlier remarks and his broken promises,
including his abrupt North Korea policy shift, have increased the uncertainty of U.S. intentions, the
credibility of U.S. extended nuclear deterrence has become more dependent on its nuclear
capabilities.
In these circumstances, if U.S. nuclear forces are not to be strengthened as planned in the NPR, the U.S.
commitments to defend Japan and other allies can be seen as empty promises and bluffs. American
diplomacy will doubtless be quite unstable in the run-up to the presidential election in 2020, but it will
also be important to take careful note of U.S. military trends.
 AT: DA Nuclear Deterrence – Risks Nuclear Use / Accidents

Nuclear deterrence could fail for several reasons and trigger nuclear use
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

Perhaps the most frightening thing about nuclear deterrence is its many paths to failure. Contrary to
what is widely assumed, the least likely is a ‘bolt out of the blue’ (BOOB) attack. Meanwhile, there are
substantial risks associated with escalated conventional war, accidental or unauthorised use, irrational
use (although it can be argued that any use of nuclear weapons would be irrational) or false alarms,
which have happened with frightening regularity, and could lead to ‘retaliation’ against an attack that
hadn’t happened. There have also been numerous ‘broken arrow’ accidents – accidental launching,
firing, theft or loss of a nuclear weapon – as well as circumstances in which such events as a flock of
geese, a ruptured gas pipeline or faulty computer codes have been interpreted as a hostile missile
launch.

The above describes only some of the inadequacies and outright dangers posed by deterrence, the
doctrinal fulcrum that manipulates nuclear hardware, software, deployments, accumulation and
escalation. Undoing the ideology – verging on theology – of deterrence won’t be easy, but neither is
living under the threat of worldwide annihilation. As the poet T S Eliot once wrote, unless you are in
over your head, how do you know how tall you are? And when it comes to nuclear deterrence, we’re all
in over our heads.

Deterrence breakdown likely --- triggers nuclear use possible through misperception
or irrational action
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

Third, deterrence theory assumes optimal rationality on the part of decision-makers. It presumes that
those with their fingers on the nuclear triggers are rational actors who will also remain calm and
cognitively unimpaired under extremely stressful conditions. It also presumes that leaders will always
retain control over their forces and that, moreover, they will always retain control over their emotions
as well, making decisions based solely on a cool calculation of strategic costs and benefits. Deterrence
theory maintains, in short, that each side will scare the pants off the other with the prospect of the most
hideous, unimaginable consequences, and will then conduct itself with the utmost deliberate and
precise rationality. Virtually everything known about human psychology suggests that this is absurd.

In Black Lamb and Grey Falcon: A Journey Through Yugoslavia (1941), Rebecca West noted that: ‘Only
part of us is sane: only part of us loves pleasure and the longer day of happiness, wants to live to our 90s
and die in peace …’ It requires no arcane wisdom to know that people often act out of misperceptions,
anger, despair, insanity, stubbornness, revenge, pride and/or dogmatic conviction. Moreover, in
certain situations – as when either side is convinced that war is inevitable, or when the pressures to
avoid losing face are especially intense – an irrational act, including a lethal one, can appear
appropriate, even unavoidable.

When he ordered the attack on Pearl Harbor, the Japanese defence minister observed that: ‘Sometimes
it is necessary to close one’s eyes and jump off the platform of the Kiyomizu Temple [a renowned suicide
spot].’ During the First World War, Kaiser Wilhelm II of Germany wrote in the margin of a government
document that: ‘Even if we are destroyed, England at least will lose India.’

While in his bunker, during the final days of the Second World War, Adolf Hitler ordered what he hoped
would be the total destruction of Germany, because he felt that Germans had ‘failed’ him.

Consider, as well, a US president who shows signs of mental illness, and whose statements and tweets
are frighteningly consistent with dementia or genuine psychosis. National leaders – nuclear-armed or
not – aren’t immune to mental illness. Yet, deterrence theory presumes otherwise .

Finally, there is just no way for civilian or military leaders to know when their country has accumulated
enough nuclear firepower to satisfy the requirement of having an ‘effective deterrent’. For example, if
one side is willing to be annihilated in a counterattack, it simply cannot be deterred, no matter the
threatened retaliation. Alternatively, if one side is convinced of the other’s implacable hostility, or of its
presumed indifference to loss of life, no amount of weaponry can suffice. Not only that, but so long as
accumulating weapons makes money for defence contractors, and so long as designing, producing and
deploying new ‘generations’ of nuclear stuff advances careers, the truth about deterrence theory will
remain obscured. Even the sky is not the limit; militarists want to put weapons in outer space.

Insofar as nuclear weapons also serve symbolic, psychological needs, by demonstrating the
technological accomplishments of a nation and thus conveying legitimacy to otherwise insecure leaders
and countries, then, once again, there is no rational way to establish the minimum (or cap the
maximum) size of one’s arsenal. At some point, additional detonations nonetheless come up against the
law of diminishing returns, or as Winston Churchill pointed out, they simply ‘make the rubble bounce’.

Breaking down the myth of nuclear deterrence is critical to prevent nuclear issue
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

What we can say is that, as of this morning, those with the power to exterminate life have not done so.
But this is not altogether comforting, and history is no more reassuring . The duration of ‘nuclear
peace’, from the Second World War to the end of the Cold War, lasted less than five decades. More than
20 years separated the First and Second World Wars; before that, there had been more than 40 years of
relative peace between the end of the Franco-Prussian War (1871) and the First World War (1914), and
55 years between the Franco-Prussian War and Napoleon’s defeat at Waterloo (1815).

Even in war-prone Europe, decades of peace have not been so rare. Each time, when peace ended and
the next war began, the war involved weapons available at the time – which, for the next big one, would
likely include nuclear weapons. The only way to make sure that nuclear weapons are not used is to
make sure that there are no such weapons. There is certainly no reason to think that the presence of
nuclear weapons will prevent their use. The first step to ensuring that humans do not unleash nuclear
holocaust might be to show that the Emperor Deterrence has no clothes – which would then open the
possibility of replacing the illusion with something more suitable.

Deterrence causes counterforce vulnerability that risks first strike and pre-emptive
nuclear strikes
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

Second, deterrence requires that each side’s arsenal remains invulnerable to attack, or at least that such
an attack would be prevented insofar as a potential victim retained a ‘second-strike’ retaliatory
capability, sufficient to prevent such an attack in the first place. Over time, however, nuclear missiles
have become increasingly accurate, raising concerns about the vulnerability of these weapons to a
‘counterforce’ strike. In brief, nuclear states are increasingly able to target their adversary’s nuclear
weapons for destruction. In the perverse argot of deterrence theory, this is called counterforce
vulnerability, with ‘vulnerability’ referring to the target’s nuclear weapons, not its population. The
clearest outcome of increasingly accurate nuclear weapons and the ‘counterforce vulnerability’
component of deterrence theory is to increase the likelihood of a first strike, while also increasing the
danger that a potential victim, fearing such an event, might be tempted to pre-empt with its own first
strike. The resulting situation – in which each side perceives a possible advantage in striking first – is
dangerously unstable.

Deterrence risks devastating nuclear accidents

Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

It is possible that the post-1945 US-Soviet peace came ‘through strength’, but that need not imply
nuclear deterrence. It is also undeniable that the presence of nuclear weapons on hair-trigger alert
capable of reaching each other’s homeland in minutes has made both sides edgy.

The Cuban Missile Crisis of 1962 – when, by all accounts, the world came closer to nuclear war than at
any other time – is not testimony to the effectiveness of deterrence: the crisis occurred because of
nuclear weapons. It is more likely that we have been spared nuclear war not because of deterrence but
in spite of it.
 AT: DA Nuclear Deterrence – Won’t Stop War

Nuclear deterrence didn’t prevent conflict between great powers --- its overhyped and
used as an excuse to justify countries’ nuclear arsenals
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

Importantly, deterrence became not only a purported strategy, but the very grounds on which
governments justified nuclear weapons themselves. Every government that now possesses nuclear
weapons claims that they deter attacks by their threat of catastrophic retaliation.

Even a brief examination, however, reveals that deterrence is not remotely as compelling a principle as
its reputation suggests. In his novel The Ambassadors (1903), Henry James described a certain beauty as
‘a jewel brilliant and hard’, at once twinkling and trembling, adding that ‘what seemed all surface one
moment seemed all depth the next’. The public has been bamboozled by the shiny surface appearance
of deterrence, with its promise of strength, security and safety. But what has been touted as profound
strategic depth crumbles with surprising ease when subjected to critical scrutiny .

Let’s start by considering the core of deterrence theory: that it has worked.

Advocates of nuclear deterrence insist that we should thank it for the fact that a third world war has
been avoided, even when tensions between the two superpowers – the US and the USSR – ran high.

Some supporters even maintain that deterrence set the stage for the fall of the Soviet Union and the
defeat of Communism. In this telling, the West’s nuclear deterrent prevented the USSR from invading
western Europe, and delivered the world from the threat of Communist tyranny.

There are, however, compelling arguments suggesting that the US and the former Soviet Union avoided
world war for several possible reasons, most notably because neither side wanted to go to war. Indeed,
the US and Russia never fought a war prior to the nuclear age. Singling out nuclear weapons as the
reason why the Cold War never became hot is somewhat like saying that a junkyard car, without an
engine or wheels, never sped off the lot only because no one turned the key. Logically speaking, there is
no way to demonstrate that nuclear weapons kept the peace during the Cold War, or that they do so
now.

Perhaps peace prevailed between the two superpowers simply because they had no quarrel that
justified fighting a terribly destructive war, even a conventional one.

There is no evidence, for example, that the Soviet leadership ever contemplated trying to conquer
western Europe, much less that it was restrained by the West’s nuclear arsenal. Post facto arguments –
especially negative ones – might be the currency of pundits, but are impossible to prove, and offer no
solid ground for evaluating a counterfactual claim, conjecturing why something has not happened.

In colloquial terms, if a dog does not bark in the night, can we say with certainty that no one walked by
the house? Deterrence enthusiasts are like the woman who sprayed perfume on her lawn every
morning. When a perplexed neighbour asked about this strange behaviour, she replied: ‘I do it to keep
the elephants away.’ The neighbour protested: ‘But there aren’t any elephants within 10,000 miles of
here,’ whereupon the perfume-sprayer replied: ‘You see, it works!’

We should not congratulate our leaders, or deterrence theory, much less nuclear weapons, for keeping
the peace.
 AT: DA Nuclear Deterrence – Doesn’t Deter Other Conflicts /
Terrorism

Nuclear weapons don’t deter other forms of war --- including terrorism
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

Even when possessed by just one side, nuclear weapons have not deterred other forms of war. The
Chinese, Cuban, Iranian and Nicaraguan revolutions all took place even though a nuclear-armed US
backed the overthrown governments. Similarly, the US lost the Vietnam War, just as the Soviet Union
lost in Afghanistan, despite both countries not only possessing nuclear weapons, but also more and
better conventional arms than their adversaries. Nor did nuclear weapons aid Russia in its unsuccessful
war against Chechen rebels in 1994-96, or in 1999-2000, when Russia’s conventional weapons
devastated the suffering Chechen Republic.

Nuclear weapons did not help the US achieve its goals in Iraq or Afghanistan, which have become
expensive catastrophic failures for the country with the world’s most advanced nuclear weapons.
Moreover, despite its nuclear arsenal, the US remains fearful of domestic terrorist attacks, which are
more likely to be made with nuclear weapons than be deterred by them.

In short, it is not legitimate to argue that nuclear weapons have deterred any sort of war, or that they
will do so in the future. During the Cold War, each side engaged in conventional warfare: the Soviets, for
example, in Hungary (1956), Czechoslovakia (1968), and Afghanistan (1979-89); the Russians in
Chechnya (1994-96; 1999-2009), Georgia (2008), Ukraine (2014-present), as well as Syria (2015-present);
and the US in Korea (1950-53), Vietnam (1955-75), Lebanon (1982), Grenada (1983), Panama (1989-90),
the Persian Gulf (1990-91), the former Yugoslavia (1991-99), Afghanistan (2001-present), and Iraq (2003-
present), to mention just a few cases.

Nor have their weapons deterred attacks upon nuclear armed states by non-nuclear opponents. In 1950,
China stood 14 years from developing and deploying its own nuclear weapons, whereas the US had a
well-developed atomic arsenal. Nonetheless, as the Korean War’s tide was shifting dramatically against
the North, that US nuclear arsenal did not inhibit China from sending more than 300,000 soldiers across
the Yalu River, resulting in the stalemate on the Korean peninsula that divides it to this day, and has
resulted in one of the world’s most dangerous unresolved stand-offs.

In 1956, the nuclear-armed United Kingdom warned non-nuclear Egypt to refrain from nationalising the
Suez Canal. To no avail: the UK, France and Israel ended up invading Sinai with conventional forces. In
1982, Argentina attacked the British-held Falkland Islands, even though the UK had nuclear weapons and
Argentina did not.

Following the US-led invasion in 1991, conventionally armed Iraq was not deterred from lobbing Scud
missiles at nuclear-armed Israel, which did not retaliate, although it could have used its nuclear weapons
to vaporise Baghdad. It is hard to imagine how doing so would have benefitted anyone. Obviously, US
nuclear weapons did not deter the terrorist attacks on the US of 11 September 2001, just as the nuclear
arsenals of the UK and France have not prevented repeated terrorist attacks on those countries.

Deterrence, in short, does not deter.

The pattern is deep and geographically widespread. Nuclear-armed France couldn’t prevail over the non-
nuclear Algerian National Liberation Front. The US nuclear arsenal didn’t inhibit North Korea from
seizing a US intelligence-gathering vessel, the USS Pueblo, in 1968. Even today, this boat remains in
North Korean hands.

US nukes didn’t enable China to get Vietnam to end its invasion of Cambodia in 1979. Nor did US nuclear
weapons stop Iranian Revolutionary Guards from capturing US diplomats and holding them hostage
(1979-81), just as fear of US nuclear weapons didn’t empower the US and its allies to force Iraq to
retreat from Kuwait without a fight in 1990.

Nuclear armed states weren’t able to successfully coerce adversaries in disputes or

effectively escalate demands
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

In Nuclear Weapons and Coercive Diplomacy (2017), the political scientists Todd Sechser and Matthew
Fuhrmann examined 348 territorial disputes occurring between 1919 and 1995. They used statistical
analysis to see whether nuclear-armed states were more successful than conventional countries in
coercing their adversaries during territorial disputes. They weren’t.

Not only that, but nuclear weapons didn’t embolden those who own them to escalate demands; if
anything, such countries were somewhat less successful in getting their way. In some cases, the
analysis is almost comical. Thus, among the very few cases in which threats from a nuclear-armed
country were coded as having compelled an opponent was the US insistence, in 1961, that the
Dominican Republic hold democratic elections following the assassination of the dictator Rafael Trujillo,
as well as the US demand, in 1994, following a Haitian military coup, that the Haitian colonels restore
Jean-Bertrand Aristide to power. In 1974-75, nuclear China forced non-nuclear Portugal to surrender its
claim to Macau. These examples were included because the authors honestly sought to consider all
cases in which a nuclear-armed country got its way vis-à-vis a non-nuclear one. But no serious observer
would attribute the capitulation of Portugal or the Dominican Republic to the nuclear weapons of China
or the US.

All of this also suggests that the acquisition of nuclear weapons by Iran or North Korea is unlikely to
enable these countries to coerce others, whether their ‘targets’ are armed with nuclear or conventional
weapons.
 AT: DA Nuclear Deterrence – Unethical

Nuclear deterrence is unethical --- risks indiscriminate destruction of whole

populations
Barash, 18 --- Professor of Psychology emeritus at the University of Washington (“Nuclear deterrence
is a myth. And a lethal one at that,” https://www.theguardian.com/world/2018/jan/14/nuclear-
deterrence-myth-lethal-david-barash, accessed on 4/24/20, JMP)

In addition, ethical deterrence is an oxymoron. Theologians know that a nuclear war could never meet
so-called ‘just war’ criteria. In 1966, the Second Vatican Council concluded: ‘Any act of war aimed
indiscriminately at the destruction of entire cities or of extensive areas along with their populations is a
crime against God and man itself. It merits unequivocal and unhesitating condemnation.’ And in a
pastoral letter in 1983, the US Catholic bishops added: ‘This condemnation, in our judgment, applies
even to the retaliatory use of weapons striking enemy cities after our own have already been struck.’
They continued that, if something is immoral to do, then it is also immoral to threaten. In a message to
the 2014 Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Pope Francis declared
that: ‘Nuclear deterrence and the threat of mutually assured destruction cannot be the basis of an ethics
of fraternity and peaceful coexistence among peoples and states.’

The United Methodist Council of Bishops go further than their Catholic counterparts, concluding in 1986
that: ‘Deterrence must no longer receive the churches’ blessing, even as a temporary warrant for the
maintenance of nuclear weapons.’ In The Just War (1968), the Protestant ethicist Paul Ramsey asked his
readers to imagine that traffic accidents in a particular city had suddenly been reduced to zero, after
which it was found that everyone had been required to strap a newborn infant to the bumper of every
car.
 AT: DA Nuclear Deterrence – Sacrifices the Oppressed

Deterrence sacrifices the lived experience of oppressed people for hypothetical peace
dividends – It should be rejected as offensive
Wright, Treaty Coordinator with ICAN, 16
(Tim, http://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/FCM16/FCM-2016-No3.pdf)

On Friday, the United Kingdom’s disarmament ambassador, Matthew Rowland, feigned concern that a legally binding
instrument to prohibit nuclear weapons would weaken the Non-Proliferation Treaty (NPT). We should abide by the principle of “do
no harm,” he lectured delegates. Then—in one of the more blatant displays of hypocrisy during this year’s First Committee session—he boasted
that Britain’s “democratically elected” parliamentarians had voted in July to renew its fleet of nuclear-armed submarines. How was this decision
not harmful to the NPT? Like all NPT states parties, the United Kingdom is legally obliged to pursue negotiations for
nuclear disarmament. And quite obviously, it is failing to do so—as are the United States, Russia, France, and
China, as well as states that include nuclear weapons in their security doctrines. It is these governments that are eroding the
NPT—and treating the rest of its membership with contempt. How can a state that wields weapons of mass destruction—weapons that it has
acknowledged have “catastrophic humanitarian consequences”—preach to others about doing no harm? The British ambassador, who accused
ban treaty supporters of “fooling themselves” to believe that such a treaty would have a positive effect for nuclear disarmament, seemed only
to be fooling himself to think that an intervention of this nature would be compelling to states determined to outlaw weapons that threaten all
of our security. Let us recall, too, that the
United Kingdom, through the bolstering of its nuclear arsenal, has caused harm
not only to the NPT, but also to countless people. It has perpetrated hundreds of acts of nuclear violence,
conducting nuclear test explosions and related trials in my own country, Australia, and in the Pacific and Nevada.
Aboriginal people bore the brunt of the tests on our land in the 1950s and ’60s, carried out with the complicity of the
Australian government. For many Australians, nuclear weapons are not a distant, abstract threat, but a lived
reality—a persistent source of pain and suffering, of contamination and dislocation. Little was done to protect the test site workers, and even
less to protect nearby Aboriginal communities. Today, survivors suffer from higher rates of cancer than the general population due to their
exposure to radiation. Only a few have ever been compensated, and much of the land used for the blasts remains off limits. At the Vienna
conference on the humanitarian impact of nuclear weapons in December 2014, Kokatha-Mula woman Sue Coleman-Haseldine described the
irreparable harm that the United Kingdom had inflicted on her people. “Our old people remember the good life of hunting for wild game and
collecting bush fruits. Life was healthy. There were still Aboriginal people living and travelling this way in the Emu Field and Maralinga region
when the bomb tests started. The government was no good at ensuring everyone was safe,” she said. “Many people died and became sick in
the immediate test areas. So did the animals. The first atomic bomb called ‘Totem 1’ spread far and wide and there are lots of stories about the
‘black mist’ it created, which killed, blinded and made people very sick.” Last week, the president of the UN General Assembly, Fijian
ambassador Peter Thomson, reminded First Committee delegates that our region “still bears the human
and environmental scars from nuclear weapons testing.” Fijians, in particular, have suffered greatly from British nuclear
violence. Ambassador Rowland asserted on Friday that his country’s “nuclear deterrent,” by which he meant its nuclear weapons,
have kept the peace for decades. What peace? And should every nation acquire a “nuclear deterrent” to
make the world a safer place? How is inciting proliferation not harmful to the NPT? His statement—which he delivered in
response to the report of a UN working group on nuclear disarmament that the UK had boycotted— was offensive to all those who
have suffered from Britain’s acts of nuclear violence, and to those who are committed to implementing the NPT by negotiating a
ban treaty. Following the remarks, the US disarmament ambassador, Robert Wood, fist-bumped his British counterpart, signalling his praise.
But the intervention, with its insulting tone and weak argumentation, could only have strengthened the commitment of other nations to begin
negotiating a ban. The NPT is not a licence for five nations to retain nuclear weapons in perpetuity. It does not confer any legitimacy on their
weapons. Yet the United Kingdom last week was speaking as if that were the case. And it will continue to do so until we prohibit, and effectively
stigmatise, these abhorrent weapons. Indeed, we must all abide by the principle of “do no harm”. Which is why we must urgently negotiate a
global ban on the worst weapons of mass destruction.
Voting on deterrence requires evaluating fictional impacts over lived experience – this
isn’t “realism”
Cohn and Ruddick, PhDs, 03
(Carol, founding director of the Consortium on Gender, Security and Human Rights, Sara, winner distinguished female philosopher of the year,
A Feminist Ethical Perspective on Weapons of Mass Destruction, Working Paper No. 104 / 2003)

A so-called “realist” response to this jud gement might well pay lip-service to the “moral niceties” it embodies, but then
argue that deterrence is worth those costs. Or, perhaps to be more accurate, it might argue that the results of a
nuclear attack would be so catastrophic that the rest of these considerations are really an irrelevant
distraction; deterring a WMD attack on our homeland is the precondition on which political freedom and social life depend, and so it must
be thought about in a class by itself. We make two rejoinders to this claim. First, we note that in the culture of nuclear
defense intellectuals, even raising the issue of costs is delegitimized, in large part through its association
with “the feminine.” It is the kind of thing that “hysterical housewives” do; something done by people not tough and hard enough to
look harsh “reality” in the eye, unsentimentally; not strong enough to separate their feelings from theorizing mass death; people who don’t
have “the stones for war.” Feminist analysis rejects the cultural division of meaning which devalues anything associated with women or
femininity. It sees in that same cultural valuing of the so-called “masculine” over the so-called “feminine” an explanation of why it appears so
self-evident to many that what is called “military necessity” should appropriately be prioritized over all other human necessities. And it
questions the assumptions that bestow the mantle of “realism” on such a constrained focus on
weapons and state power. Rather than simply being an “objective” reflection of political reality, we
understand this thought system as 1) a partial and distorted picture of reality, and 2) a major contributor to
creating the very circumstances it purports to describe and protect against. Second, just as feminists tend
to be skeptical about the efficacy of violence , they might be equally skeptical about the efficacy of
deterrence. Or, to put it another way, if war is a “lie,” so is deterrence. This is not, of course, to say that deterrence
as a phenomena never occurs; no doubt one opponent is sometimes deterred from attacking another by the fear of retaliation. But
rather deterrence as a theory, a discourse and set of practices underwritten by that discourse, is a fiction. Deterrence
theory is an elaborate, abstract conceptual edifice , which posits a hypothetical relation between two different sets of weapons
systems – or rather, between abstractions of two different sets of weapons systems, for in fact, as both common sense and military expertise
tells us, human error and technological imperfection mean that one could not actually expect real weapons to
function in the ways simply assumed in deterrence theory. Because deterrence theory sets in play the
hypothetical representations of various weapons systems, rather than assessments of how they would actually
perform or fail to perform in warfare, it can be nearly infinitely elaborated, in a never ending regression of
intercontinental ballistic missile gaps and theater warfare gaps and tactical “mini- nuke” gaps , ad infinitum, thus legitimating both
massive vertical proliferation and arms racing.
Politics
 Plan Hurts Dems

The plan is a loser or Dems

Arango, 19 (4/7/19, Tim, “Democrats Rethink the Death Penalty, and Its Politics,”
https://www.nytimes.com/2019/04/07/us/politics/death-penalty-democrats.html, accessed on
3/24/2020, JMP)

LOS ANGELES — By signing an executive order, Gov. Gavin Newsom of California recently ended the threat of
execution as long as he is in office for the 737 inmates on the state’s death row, the largest in the Western Hemisphere.
Almost immediately, Democratic presidential candidates lined up in support, calling capital punishment a moral outrage infected with racial
bias. Senator Kamala Harris of California, a former prosecutor, called for a federal moratorium on executions. Former Representative Beto
O’Rourke of Texas did the same.

The moment marked a generational shift for a party where some candidates long supported the death penalty to protect themselves from
being portrayed as soft on crime.

But Democrats aren’t leading a national debate; they are

following a decades-long trend that has seen support for
the death penalty drop from nearly 80 percent in the 1990s to just over 50 percent now.

Still, many feel that Mr. Newsom was doing his party no favors politically by forcing Democrats to talk
about an issue that can still be fraught in a general election . Even in solidly Democratic California,
voters in 2016 rejected a ballot initiative to end the death penalty and instead approved one to expedite
executions.

In short, the moment captured what has changed significantly and what has not with an issue that is hard-wired into the
nation’s psyche. Like the proliferation of guns, capital punishment distinguishes the United States from other Western democracies,
virtually all of which have banned it.

Bill Whalen, a research fellow at the Hoover Institution who once advised Pete Wilson, a Republican former governor of California, wrote in a
column: “Every Democrat who wants to unseat President Trump now must figure out where they stand on the death penalty.”

He continued: “For some triangulating Democrats, that’s a tricky balancing act given that capital
punishment is despised by the
party’s progressive base but is far more popular in the crime-and-order Heartland.”
The new attention notwithstanding, presidents are limited in their power over capital punishment, several experts pointed out in interviews. A
president could clear federal death row, but that includes only 62 people compared with more than 2,500 condemned inmates in state prisons.

The federal government has executed only three people since it reinstated capital punishment in 1988 — one of them was Timothy McVeigh —
and the last one was in 2003.

The president has far greater power to determine the future of capital punishment in the United States by appointing justices to the Supreme
Court. Experts expect the court to eventually rule on whether the Constitution allows executions at a time of increasing recognition of the
enormous financial costs of the death penalty, high-profile exonerations and research showing persistent racial bias in capital cases.

“The president, and what the president does, will bear very much on the Supreme Court’s thinking on this, because the president does reflect
the national electorate,” said James S. Liebman, a professor at Columbia University who specializes in the death penalty.

New positions and different risks

You don’t have to look back very far to see what a shift there has been in the positions taken by Democratic candidates.

In 2016, for the first time, the Democratic Party platform called for the abolition of the death penalty. But Hillary Clinton, the party’s nominee
for president, supported capital punishment. President Barack Obama never called for its end, either. Al Gore was a supporter, and so was Bill
Clinton.
Some fear it
could still be a losing issue in a general election against President Trump, who has talked about
expanding those eligible for execution to include convicted drug dealers and could use the issue to
rally his base and portray Democrats as weak on crime.
In a Twitter post about Mr. Newsom’s moratorium, Mr. Trump wrote, “friends and families of the always forgotten VICTIMS are not thrilled, and
neither am I!”

The issue illuminates ideological and generational divides among many Democratic voters. Many of the presidential candidates are on record
opposing capital punishment; Joseph R. Biden Jr., the former vice president who is expected to enter the race in the coming weeks, has
supported it.

As a senator in the 1990s, Mr. Biden supported many get-tough-on-crime policies that liberals now disavow, including limits on appeals for
death row inmates.

“Biden was one of the major proponents of the 1994 amendments that severely limited the ability of death row prisoners to obtain meaningful
judicial review,” said Robert Dunham, the executive director of the Death Penalty Information Center, a nonprofit group that provides analysis
and information on capital punishment. “Other people who have sponsored that bill have said they thought that was a mistake. And I think that
voters will have to decide whether candidates for office have made mistakes and learned from them, or whether they are professing new views
because the views of the public have changed.”

While Ms. Harris has long opposed capital punishment, she has a somewhat complicated history on the issue. As the district attorney in San
Francisco, she refused to seek a death sentence for a defendant accused of murdering a police officer, provoking outrage from the right. But
she defended California’s death penalty as the state’s attorney general, and twice, in 2012 and 2016, she refused to take a stand on ballot
initiatives that proposed to abolish it.

Aside from Mr. Biden, most of the other candidates have opposed the death penalty. In addition to Ms. Harris and Mr. O’Rourke, who have said
they would support a federal moratorium, Senators Bernie Sanders, Cory Booker, Elizabeth Warren and Kirsten Gillibrand all said they support
Mr. Newsom’s moratorium. Two others in the race — John Hickenlooper, former governor of Colorado, and Jay Inslee, governor of Washington
— imposed moratoriums in their states.

“It’s kind of interesting that they are talking about it because it had pretty much dropped off the radar for national campaigns,” said Kent
Scheidegger, the legal director of the Criminal Justice Legal Foundation , a group based in Sacramento that has led
campaigns in California and across the country in support of the death penalty. “I’d love to see it made an issue.”

He predicted that it may “drop back off the screen in the national campaign.”

“I don’t think Democrats want this to be an issue in a general election, because it would be a loser for
them,” he said.
 --- EXT: Plan Hurts Dems

Link outweighs any turn --- Trump will be able to fan the flames and overwhelm
opponents [--- it will eventually be ended]
Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)

III. The death penalty in the age of Trump

So, what will happen to the death penalty under President Trump?

Opposition to the death penalty seems to thrive when it's not a hot issue. When it's been neglected.
When it's almost forgotten. That's where we were in 1972. We were getting back somewhere close to
that position a few years ago.

In 2012, there was a referendum in California on repealing the death penalty. It didn't pass, but it came
close - it got 48% of the votes. In talking to voters in that campaign, the organizers of the repeal effort
discovered that lots of Californians didn't even know that California had the death penalty. Which isn't
really surprising. Nobody had been executed in California for 13 years, and there were lots of other
pressing issues on people's minds.

Passion seems to favor people who argue for the death penalty. Passion for justice and for revenge
against vicious criminals, passion to protect innocent [*778] victims. On the other side, most of the
reasons to oppose the death penalty are more bland and abstract : It costs too much. It doesn't work
effectively. It discriminates between some killers and other killers based on race.

Punishing the innocent can generate passion. The prospect of executing an innocent person has been
the most effective issue in mobilizing opposition to the death penalty. It might have a huge impact if it
were ever demonstrated conclusively that a person who was put to death recently was totally innocent.
That has not happened.

But it's easy to mobilize passion on the other side simply by telling the horrific stories of many
murders. These terrible, heart-wrenching stories are not likely to change the minds of those who
oppose the death penalty. But they can mobilize many of those who already support the death penalty
but are not particularly concerned about it, and others who had not thought about the issue at all.
That's more than enough to keep an existing institution in place.

There was a second anti-death penalty referendum in California, in 2016. It did worse than the one in
2012. It only got 46% of the vote. Why? In 2012 there had been no organized opposition to the anti-
death penalty referendum. In 2016 there was another death penalty referendum on the same ballot,
sponsored by several district attorneys, a proposal that was designed to speed up the process of carrying
out executions.

In other words, in 2016 there was an active electoral campaign for and against the death penalty in
California, with spending and media coverage on both sides. Those in favor of the death penalty carried
the day. Their own proposal got 51% of the vote, and the campaign they waged also reduced support for
the proposal to abolish the death penalty from its 2012 level, despite the fact that in the intervening
four years the California electorate had become younger and more heavily Democratic, and included a
higher proportion of minorities. These demographic changes should have favored opponents of the
death penalty, but with concerted opposition from those who favor the death penalty, it wasn't close
anymore.

We know Trump's position on the death penalty. He has not talked about it much recently, but it's no
secret. Trump devotes more time to torture and brutality, both of which he advocates. Last July he told
police officers, "When you see these towns and when you see these thugs being thrown into the back of
a paddy wagon, you just see them thrown in, rough, and I said, "Please don't be too nice,'" and "Like
when you guys put somebody in the car and you're protecting their head, you know, the way you put
their hand over [so they] don't hit their head. I said, you can take the hand away, okay?" 9 This is the
President of the United States, on national television, advocating extra-legal violence by [*779]
police. The same president who, in his inaugural address, railed about "this American carnage" at a time
when crime rates are lower than they've been in decades.

As long as Trump is President, abolition of the death penalty is a nonstarter - not because support has
increased, but because passions of those who do support it can easily be stirred up by the President,
and will be if the issue ever makes it onto Fox News.

This will pass. Maybe in three years, maybe in ten, but it will pass. In the meantime, I believe the death
penalty will continue to be used in America, but in the greatly diminished form that we've seen for the
last ten years. The work that some of the other panelists are doing, and the trends that they will
describe later today, will keep the death penalty in retreat and help maintain opposition in these grim
times.

The tide will change within the lifetime of most if not all of us in this room. When that happens, you will
finally see this nasty, destructive, and inhumane practice bite the dust.

The plan is a loser for Dems --- also no risk of turn because it isn’t a key issue to
motivate liberal base either
Weissert, 19 (7/26/19, Will, “Resumed Federal Executions Raise Death Penalty's 2020 Stakes; The
Justice Department's announcement that it will begin executing federal death row inmates for the 1st
time since 2003 raises the political stakes of an issue that has rarely been a strength for national
Democrats,” https://www.usnews.com/news/politics/articles/2019-07-26/renewed-federal-executions-
raise-death-penaltys-2020-stakes, accessed on 3/14/2020, JMP)

In the decade that followed, though, many Democrats began to rethink their positions on capital
punishment, moved by startling revelations of innocent people being sentenced to death row only to be
eventually exonerated and even worries about wrongful executions.

In 2014, an Oklahoma execution was problematic enough that President Barack Obama mulled a
moratorium on the federal death penalty. Though that never materialized, his party's national platform
endorsed one two years later, and only one of the 24 Democrats seeking the White House in 2020,
Montana Gov. Steve Bullock, has publicly supported preserving capital punishment in some form.
The issue took on unexpected urgency on Thursday when the Justice Department announced that it will
begin executing federal death row inmates for the first time since 2003, again raising the political stakes
on a topic that's rarely been a Democratic strength. And while the party is now much more unified in
opposing it than a generation ago, the public is not, potentially casting a long policy shadow over the
upcoming primary.

Democratic strategist Mike Lavigne said that, despite the planned federal executions, he doesn't see the
issue as a winner for Democrats because "there's not a lot of single-issue voters on the death
penalty."

Still, several Democratic presidential candidates strongly criticized the move, setting up a stark contrast
with President Donald Trump.

"Capital punishment is immoral and deeply flawed," Sen. Kamala Harris of California said on Twitter.
"Too many innocent people have been put to death."

About 6 in 10 Americans favor the death penalty, according to the General Social Survey, conducted by
NORC at the University of Chicago. That's declined steadily since the 1990s, when nearly three-quarters
were in favor.

Even California, the nation's largest blue state, rejected a capital punishment ban in 2016. Now-
Democratic Gov. Gavin Newsom used an executive order to declare a moratorium, but prosecutors in
the state still sometimes seek the death penalty.

The first federal inmate is scheduled to be executed on Dec. 9, less than two months before the
Democratic primary begins with the Iowa caucus, and four other prisoners are set to be put to death
over the next six weeks.

Trump has repeatedly endorsed capital punishment for serious crimes, and that's likely to play well with
his conservative base heading into 2020. Republican support for capital punishment has held steady at
about 8 in 10 over the past two decades, while about half of Democrats now say they favor it compared
to nearly two-thirds in the 1990s.

Public also wants to retain the death penalty as a response to terrorism

Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)

Also, for what it's worth, I never thought the Supreme Court was going to take on the constitutionality
of the death penalty any time soon. I didn't think it was going to happen a year ago, when I had little
doubt that Trump would never get elected - so obviously I'm not much of a prophet. But the reason
wasn't Trump, or the things he was saying. It was terrorism.

Americans support the death penalty for terrorists more than they support the death penalty in
principle. We have seen this repeatedly in opinion polls. When asked in 2001 if they support the death
penalty, 62% said yes - but 75% said that Timothy McVeigh, the Oklahoma federal building bomber,
should be executed. The same thing happened again in 2015, in polls about Dzhokhar Tsarnayev, the
Boston Marathon bomber.

There have been several terrorist attacks in the United States in the last few years. They could get
worse, as everyone knows. In July 2016, a terrorist in a truck killed eighty-six people and injured more
than 450 in Nice, France. The same, or worse, could happen any time in Miami Beach or in Portland. If
the Supreme Court chose to abolish the death penalty, it would make that decision in March or April of,
say, 2019, and then issue an opinion abolishing the death penalty in late June of that year - knowing all
along that in May or in July there might be a terrorist attack of that magnitude somewhere in America. I
can't imagine the Court doing that.
 AT: Plan Popular – Changing Politics / Costs

Plan could still become a contentious issue in 2020 election --- Trump can wield it as a
political weapon
Arango, 19 (4/7/19, Tim, “Democrats Rethink the Death Penalty, and Its Politics,”
https://www.nytimes.com/2019/04/07/us/politics/death-penalty-democrats.html, accessed on
3/24/2020, JMP)

‘The most toxic issue’

The death penalty has long played a powerful role in presidential politics, especially in the 1980s and
1990s.

It helped sink the candidacy of Michael S. Dukakis, a Democrat, in 1988 when he said in a debate that he
would oppose an execution even if his wife, Kitty, were raped and murdered.

Four years later, Bill Clinton rushed back to Arkansas from the campaign trail to oversee the execution of
a mentally disabled man convicted of killing a police officer, burnishing an image of being tough on
crime.

“It was just the most toxic issue,” said Stephen B. Bright, a professor at Yale Law School, who noted that
during this time many state judges were removed from office for their opposition to the death penalty.
Gov. Mario Cuomo of New York lost his re-election bid in 1994 partly because he was against capital
punishment, Mr. Bright said.

Now, the politics have shifted. Not only are Democrats more willing to speak out against the death
penalty, but many Republicans — though not Mr. Trump — are turning against capital punishment on
limited-government grounds and, especially, because of high costs.

One study has shown that capital punishment has cost California $5 billion since the 1970s. Another
study, by Ernest Goss, an economics professor at Creighton University, found that each death penalty
prosecution in Nebraska cost $1.5 million more than when prosecutors sought life without parole.

Those more complex realities do not negate the potential for contentious politics in 2020.

“I think the Democratic primaries may be the first one in which candidates outflank one another on the
left on criminal justice issues,” said Carol S. Steiker, an expert on the death penalty at Harvard Law
School.

But while Democratic candidates would very likely appoint judges and officials who support criminal
justice reform broadly, few expect the death penalty to become a litmus test issue like abortion.

And it’s not clear what will carry more weight in 2020 politics — the complex realities of the justice
system or the history of the death penalty as a potent political weapon, particularly in the hands of
Mr. Trump.

“You’ve already got socialism and immigration, and you can add this to it,” Mr. Bright said. “The
question is if it will resonate.”
 Abolition Unpopular – GOP

There is still a large partisan divide over the death penalty – most Republicans
including Trump’s base supports it
Santhanam, 19 --- Data Producer for the PBS NewsHour (7/26/19, Laura, “Americans are divided on
federal executions. Why is the Trump administration bringing them back?:
https://www.pbs.org/newshour/nation/americans-are-divided-on-federal-executions-why-is-trump-
administration-bringing-them-back, accessed on 4/5/2020, JMP)

The Trump administration’s decision

to reinstate the federal death penalty , beginning with the executions of five men later this year,
highlights a growing partisan divide over capital punishment at a time when its use has been decreasing. Polls show a
strong majority of Republicans support the death penalty , while a majority of Democrats do not.
The expected executions, scheduled for this winter, would be the first time the federal government has executed anyone in 16 years — a time period that
encompasses both Democratic and Republican administrations.

“The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,”
Attorney General William Barr said about the move in a press release on Thursday.

But many see the use of the death penalty, at the federal level in particular, as arbitrary in terms of who ultimately faces that punishment — a sentiment that has
affected its public support, said Robert Dunham, director for the Death Penalty Information Center.

The change also comes as the Justice Department shifts policy on what chemical it will use to kill the men, a topic of public and legal debate around the use of lethal
injection drugs.

Over the last two decades, capital punishment has fallen overall, and at the state level especially, Dunham said. Nearly two dozen states have abolished the death
penalty, and public opinion supporting executions has followed that slump.

“The national trend is [moving] away from capital punishment,” Dunham said.

Could public opinion and partisanship have played a role in Trump administration’s decision? The PBS NewsHour asked experts for their insights.

Who is being executed?

The five men who will stand execution have all been convicted of killing children, among other victims. All were found to be guilty of federal crimes due to different
specific details of their cases, such as where the murder took place, or if they had transported a minor over state lines.

“Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of
whom was convicted by a jury of his peers after a full and fair proceeding,” Barr said in his statement.

The inmates include: Daniel Lewis Lee, who will be killed on Dec. 9, Lezmond Mitchell on Dec. 11, Wesley Ira Purkey on Dec. 13, Alfred Bourgeois on Jan. 13, 2020,
and Dustin Lee Honken on Jan. 15, 2020. These men have run out of appeals to their death sentences, according to the Justice Department, and all five will be put to
death at the same prison, the U.S. Penitentiary in Terre Haute, Indiana, a press release noted.

To execute them, the Justice Department have proposed using a single, acutely toxic barbiturate used to euthanize animals — pentobarbital. That marks a
departure from the three-chemical protocol used in previous executions but an option increasingly adopted amid continued debate around the drugs used in lethal
injections. Since 2010, the Justice Department said 14 states have used pentobarbital in more than 200 executions. In 2018, drug companies distanced themselves
from executions and refused to sell their product to be used for lethal injections.

But it’s unclear why the federal government is assuming responsibility for the execution of these men, Dunham said. In all of these cases, they could be executed by
the state.

This “is a classic state interest,” Dunham said, adding that there is a false myth that the federal death penalty is somehow better applied than at the state level. How
this punishment is given out remains arbitrary and there are resource constraints when it comes to such cases, he said. African Americans are disproportionately
sentenced to death compared to whites, according to data from the Death Penalty Information Center, and federal prosecutors are just as prone to making mistakes
or pursuing erroneous convictions as their peers at the state level.

“The fact of the matter is the federal death penalty has all the same kinds of problems that state death penalties do,” he said.

The death penalty, public opinion and politics

Twenty-one states and the District of Columbia have abolished the death penalty, according to data from the Death Penalty Information Center. In 2018, states
executed 25 people — a record low. A year earlier, the state of Arkansas stirred national outrage when the state announced plans to put eight men to death in less
than two weeks around the Easter holidays.

That’s down from 98 executions that took place in 1999, a time when 78 percent of Americans said they supported the death penalty. Since then, support has
waned.

According to Pew Research Center, 54 percent of U.S. adults said they backed the death penalty in 2018, and
partisanship quickly emerges when you look at numbers , said Jocelyn Kiley, Pew’s associate director for U.S. politics.

“Parties are much more divided over this question than they historically were,” she said.

In 2018, a clear majority of Republicans — 77 percent — said they favored the death penalty , while 35 percent of
Democrats said they supported capital punishment, Kiley said.

And white Americans were more likely to say they support the death penalty than African American or Latino respondents, Pew’s polling data suggested.

A few years earlier, in 2015, 49 percent of Americans said they supported the death penalty, according to Pew polling data.

With a nearly even split in opinion, Americans overall aren’t ready to abolish the death penalty , as
some Democratic presidential candidates such as Julian Castro have proposed. In a recent PBS NewsHour/NPR/Marist poll, 58 percent
of U.S. adults said it was a bad idea to get rid of the death penalty altogether, including 79 percent of
Republicans, who are Trump’s core of voters. Thirty-six percent said it was a good idea to abolish capital punishment.
“What we’re left with is a punishment that is fading away in most of the country but is still practiced in a few outlier jurisdictions,” Dunham said. “It looks as though
the federal death penalty may be becoming an outlier where it’s going forward against the flow of American public opinion.”

Federal death penalty helps maintain GOP support for Trump

Meltsner, 19 --- Professor of Law at Northeastern University Law School (8/5/19, Michael, “The
Return of the Federal Death Penalty,” https://www.jurist.org/commentary/2019/08/michael-meltsner-
death-penalty/#, accessed on 4/12/2020, JMP)

Attorney General William Barr’s decision directing the Bureau of Prisons to resume execution of inmates
sentenced to death by the federal government is so inconsistent with recent developments with respect
to the death penalty that it makes plain how the action is driven more by electoral politics than public
safety or penal policy.

Nine states have abolished capital punishment in this century, New Hampshire being the latest. A total
of 21 states have now abandoned the death penalty and four more have governor-imposed
moratoriums. Not only has the number of executions decreased mightily (23 in 2017, 25 in 2018,
compared with 98 in 1999), but the number of death sentences handed down by juries has plummeted.
Jury panels that heard often gruesome evidence handed out only 42 death sentences last year,
compared to to 315 in 1996.

A recent report of the United States Bureau of Justice Statistics found that the national death row
population had declined for the 17th consecutive year. Only ten people have been put to death so far in
2019. Federal death penalty cases are few. Only about sixty (the number shifts due to court decisions) of
the 2,703 nationally subject to execution were federal prisoners, making clear that in terms of Barr’s
order—which glosses over that the lethal drug to be used may not be obtained from a reliable
manufacturer—was more symbol than substance.
A closer look suggests what’s really going on behind the Department of Justice’s statement: “We owe it
to the victims and their families to carry forward the sentence imposed by our justice system.”

The federal government has not conducted an execution since 2003. Indeed, only three men have been
put to death by Washington since 1998. The present formal moratorium was put in place five years ago
by President Obama, which may be another instance of what many have noted has been the President
Trump’s efforts to undo every instance of his predecessor’ policies. President Trump has previously
called for the resumption of the death penalty and famously called for the execution of the later
exonerated Central Park Five.

More fundamentally, the pattern of executions in the United States has for decades largely been a red
state phenomenon. Of the eight states that carried out executions in 2017, only Virginia voted for
Hillary Clinton in 2016. Additionally, Ohio might be regarded as a battleground state in the 2020
election. The rest are all Southern or border states that would be expected to line up in the Trump
column.

Justices like Kennedy and Stevens, opponents of the death penalty once expected abolition would come
from an eventual Supreme Court decision but confirmation of Trump’s nominees, Justices Gorsuch and
Kavanaugh, have dashed those hopes.

The world’s democracies have abandoned capital punishment. In this country, the decline in support has
been steady but partial, spurred by the innocence movement and the substitution of life without parole
sentencing statutes for death verdicts. In recent years, the move toward restricting and ultimately
abolishing capital punishment has come from the states, which carry the burdens and the expense of
maintaining the sanction.

The traditional justifications for capital punishment, such as deterrence, have fallen away. The death
penalty survives largely because attention is often directed to individual cases of horrible violence,
rather that the operation of an error filled, bureaucratic system that metes out the penalty in arbitrary
and racially biased fashion. Barr’s announcement may attract some votes, but it is unlikely to change the
dynamics that have increasingly turned the death penalty into a national embarrassment.
 Abolition Popular

Momentum for abolishing death penalty growing – political backlash has been tamed
Stubbs, 19 --- director of the ACLU’s Capital Punishment Project (3/28/19, Cassy Stubbs, Jeremy Stahl
interviewer - Slate senior editor, “Is the Tide Finally Turning on the Death Penalty? The momentum
gained at the state level might be enough to break through on the federal level,”
https://slate.com/news-and-politics/2019/03/momentum-to-abolish-death-penalty-growing.html,
accesed on 4/5/2020, JMP)

Jeremy Stahl: What background do you think is important for people to understand about Newsom’s
announcement and the broader picture surrounding the death penalty in the United States?

Cassy Stubbs: This year feels like a turning point for the death penalty. Last year, obviously,
Washington abolished the death penalty. That was a big victory. But I think what’s kind of unique right
now is that we see a lot of different camps moving in the same direction at the same time. For
example, there’s the pope coming out with the strongest statement in history about the death penalty
and the church’s view of the death penalty. We see there are conservative groups that are really
becoming concerned about the death penalty from a religious and moral perspective—and also from
cost—while at the same time you have the Democratic Party announcing that [abolition is] part of their
platform.

Kamala Harris just talked about how the death penalty is never appropriate in any case in her view.
Newsom just issued that powerful defense about why we can no longer stand behind the death penalty
and it is morally incumbent on us to break from this when it’s been shown to be so racially biased and
inherently discriminatory and unfairly applied. This kind of full-spectrum attack on the death penalty is
just reaching a noise level that, to me, at least it feels very different than I’ve seen in over a decade, in
terms of a critical mass of voices.

There was [also] kind of a trajectory [where] we saw a number of governors do things that were good on
the death penalty, like issue stays or moratoriums or commutations, and then survive political attacks.
We saw that the electorate was no longer voting on the death penalty. There was not the kind of
backlash against folks who came out saying “we need death penalty reform” that we had seen in the
1980s. That was the first stage. Now, we’re really in this new phase where we see people both from
the right and the left aggressively promoting death penalty repeal.

Abolition is no longer politically radioactive – public support building

Von Drehle, 19 (3/15/19, David - author of a number of books, including the award-winning bestseller
“Triangle: The Fire That Changed America”, “The death penalty makes a mockery of our justice system.
Abolish it,” https://www.washingtonpost.com/opinions/the-death-penalty-makes-a-mockery-of-our-
justice-system-abolish-it/2019/03/15/fccbcf66-4670-11e9-aaf8-4512a6fe3439_story.html, accessed on
4/5/2020, JMP)

There once was a burning political issue known as capital punishment. Others called it the death
penalty. Entire political careers in the 1980s and 1990s were built on it or ruined by it. Democrat
Michael Dukakis lost the presidency, many pundits said in 1988, by seeming mushy when asked what he
would do if some guy murdered his wife. The 1992 nominee, Bill Clinton, learned the lesson. He jetted
home to the Arkansas governor’s mansion in the middle of the campaign to preside over the execution
of a mentally impaired prisoner.

But, as with other obsessions from the mix-tape era — such as Biosphere 2, the Y2K Bug and Hillary
Clinton’s hairstyles — capital punishment has lost its grip on the public. The nation’s largest death row
was shut down Wednesday with hardly a yawn in response.

California Gov. Gavin Newsom (D) announced that he will not pursue the execution of any of the 737
death-sentenced inmates at San Quentin State Prison. Calling capital punishment “ineffective,
irreversible and immoral,” Newsom ordered the decommissioning of the execution chamber and
rescinded the state’s protocol for lethal injection. These steps will make it more difficult for future
California governors to reverse course.

The governors of Colorado, Oregon and Pennsylvania have already renounced the death penalty and
have suffered no appreciable political backlash. Including California, these four indefinite pauses cover
roughly one-third of all death row prisoners in the United States. Ohio Gov. Mike DeWine (R) has
suspended the death penalty in his state — home to another 144 condemned prisoners — until an
execution protocol can be devised that meets court standards.

Elsewhere, halts originally ordered by governors have led to outright abolition. Last year, Washington’s
state Supreme Court cemented a 2014 moratorium by declaring the death penalty unconstitutional. In
Illinois, a governor’s moratorium became permanent in 2011 when the legislature abolished capital
punishment.

What used to be political dynamite has become about as explosive as damp newsprint. By walking
away from capital punishment, elected leaders are essentially converting death sentences to life
imprisonment without parole — and getting away with it for much the same reason Newsom was able
to scale back California’s pie-in-the-sky bullet train earlier this year. The public is wise to expensive
gestures that produce scant results.

Governors prove backlash no longer true

Stubbs, 19 --- director of the ACLU’s Capital Punishment Project (3/28/19, Cassy Stubbs, Jeremy Stahl
interviewer - Slate senior editor, “Is the Tide Finally Turning on the Death Penalty? The momentum
gained at the state level might be enough to break through on the federal level,”
https://slate.com/news-and-politics/2019/03/momentum-to-abolish-death-penalty-growing.html,
accesed on 4/5/2020, JMP)

Who are you thinking of when you talk about recent politicians who have not necessarily faced a
backlash?

We saw the governor of Colorado [John Hickenlooper] was targeted around the death penalty and was
re-elected [in 2014], despite his granting of reprieves on the death penalty and despite [an effective]
moratorium on the death penalty in Colorado. We saw in Oregon, Gov. Kate Brown was re-elected [last
year] with a moratorium on the death penalty. We saw in Kansas, the Kansas state judges had been very
robust in their review and had appropriately overturned death sentences that [we believe] violated the
U.S. Constitution on a pretty regular basis, and they got attacked for that and they survived those
challenges. We saw it in the Washington state Supreme Court, which [last year] wrote this really
sweeping opinion finding racial bias in the application of the death penalty under the Washington state
Constitution. They issued that opinion right before the judicial elections, which in the lore of litigator
strategy, you’d never expect a state court to issue a big decision right before judicial elections. There’s
no backlash.

Public support for death penalty continues to decline and voters are rejecting “tough
on crime” politicians
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 213-5, JMP)

Public support for the death penalty continues to decline: fewer than half of Americans now support it,
and opposition to it has reached the highest levels seen in more than forty years .2 Public opinion
among both liberals and conservatives has increasingly turned against the death penalty. To be sure, in
2016, California voters decided to retain the death penalty, as did voters in Nebraska. Perhaps voters are
of two minds about the death penalty, or perhaps some people like the idea of the death penalty in the
abstract, but when confronted with individual cases they reject death sentences.

At the state and local level, more and more voters reject politicians who keep up a 1990s-style tough-
on-crime approach. America’s deadliest prosecutors are losing elections. The prosecutor in Caddo
Parish, Louisiana, who said, “[W]e need to kill more people,” left office in 2015 to be replaced by an
African American former judge. For the first time in decades, in fall 2016, voters rejected an incumbent
prosecutor in Florida, replacing the district attorney who had put Duval County in the top sixteen
deathsentencing counties in the country since 2010. The new prosecutor plans to create a conviction-
integrity unit and a review board to decide whether to seek the death penalty. In 2016, Houston voters
elected a new prosecutor who campaigned for reducing death penalty prosecutions and adopting
criminal-procedure reforms. The new prosecutor in Denver, Colorado, announced that as far as the
death penalty goes, “We are [done] under my administration,” and “I don’t think the state should be in
the business of killing people.”3

In local trials, jurors are rejecting death sentences in cases like the Aurora theater trial in Colorado, the
high-profile “Beltway Sniper” case of Lee Boyd Malvo, and the case of accused 9 /11 conspirator Zacarias
Moussaui. Jurors are not choosing mercy only in high-profile cases, with top lawyers and trials that last
weeks. This is also happening in small-town cases across the country that only the locals are following. In
contrast, in cases like the Dylan Roof trial, in Charleston, South Carolina, in which Roof was allowed to
represent himself and presented no real mitigation evidence, the jury imposed the death sentence that
he all but asked for.

Despite apocalyptic-sounding tough-on-crime talk resurfacing in American politics, the reality is that
crime continues to decline as both sides of the deep political divide agree that the tough-on-crime
path was wrong. At the state and local level, reforming criminal justice is a bipartisan priority. New
attitudes to the death penalty reflect this. Take these words from a North Carolina politician: “As a
conservative seeking to find the best way to protect the residents of this great state from crime, I
believe the death penalty has had its day in North Carolina.” The politician added that he and other
conservatives wanted to prevent “debacles” like a botched execution in Oklahoma.4 In Missouri,
conservative lawmakers introduced legislation to abolish the death penalty, with supporters calling it
“an inefficient, bloated program that has bogged down law enforcement, delayed justice for victims’
families and devoured millions of [dollars in] crime-fighting resources that could save lives and protect
the public.”5 In Colorado, the governor was reelected in 2014, despite abandoning his support for the
death penalty. On the other side of the political spectrum, liberals who a decade earlier might have
feared being lambasted as soft on crime now openly question the death penalty. Then– attorney general
Eric Holder said in 2014, “I personally am opposed to the death penalty.” In a system “made up of men
and women making decisions, tough decisions,” mistakes like wrongful executions can happen, “[a]nd I
find it hard to believe that in our history that has not happened.”6
States CP Answers
 AT: CP States – Doesn’t Solve

Federal government will just expand use of its own death penalty --- even pass new
laws if necessary to apply it
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

B. Existing and Potential Federal Capital Crimes

Given the support for the death penalty nationally, it is unlikely that the federal government will
decommission the death penalty at the national level. It is more likely that more states, including some
of the biggest, such as California, Pennsylvania, and perhaps even Texas, will abandon capital
punishment in the coming decades. Given this, there is a real likelihood of the expanded use of the
federal death penalty as a sort of "safety valve": the de facto retention of the death penalty in
ostensibly non-death-penalty states for the most heinous of [*335] killings. 142 This is what seems to
have occurred in the Jacques, Pleau, and Wilson cases, discussed above. 143

The expansion of the federal kidnapping statute in 2006 turns even the most local of kidnappings, as in
Jacques, into a federal case. 144 Indeed, it is difficult to conceive of too many kidnappings that are now
not federal crimes. After all, it will be the rare kidnapping that does not involve some "means, facility, or
instrumentality of interstate … commerce in committing or in furtherance of the commission of the
offense." 145 Perhaps a spur-of-the-moment kidnapping would not fall into this category. But any
abduction that involves the least bit of planning would likely involve the use of a phone, text, e-mail,
instant message, or social media site. In addition, even a spur-of-the-moment kidnapping becomes a
federal crime when the perpetrator uses one of these means to cover-up the crime, because that would
be "in furtherance of the commission of the offense." 146 And if federal courts continue to agree that
an automobile is an instrumentality of interstate commerce, 147 this would bring virtually every
kidnapping within the ambit of the federal statute. 148

Murders in relation to robbery, too, can now be charged as federal capital crimes in virtually every
instance involving use of a firearm. This is thanks to the Hobbs Act as recently interpreted in the little-
noticed case of Taylor v. United States. 149 Taylor, decided in the last month of the October 2015 Term,
addressed whether robbery of a drug dealer of drugs and [*336] proceeds from the drug trade violate
the Hobbs Act, even if the prosecutor could not show that the drugs ever crossed state lines. 150 The
Court held seven to one that the Hobbs Act was violated under those circumstances. 151 It observed
that the Hobbs Act includes within its ambit ""all … commerce over which the United States has
jurisdiction.'" 152 It also noted that it had already held in Gonzalez v. Raich 153 that Congress may,
pursuant to the Constitution's Commerce 154 and Necessary and Proper Clauses, 155 regulate even the
purely intrastate sale or use of narcotics, because even a purely intrastate activity involving drugs can
have a substantial effect on the interstate market for drugs if all such intrastate activities were to be
aggregated. 156 The Court proceeded syllogistically: if Congress may regulate purely intrastate use or
sale of narcotics as commerce, and if the Hobbs Act covers robbery that affects any "commerce over
which the United States has jurisdiction," then the Hobbs Act criminalizes robbery of drugs that have
never crossed state lines or the proceeds from their sale. 157

As straightforwardly as Taylor's holding flows from Raich, it is also deeply troubling. While Taylor itself
involved robbery of ill-gotten gains - drugs and the proceeds from their sale - the Hobbs Act, of course, is
not so limited. The Hobbs Act covers robbery of the proceeds of activities of any sort, licit or illicit, that
affect interstate commerce. 158 Taylor holds that this extends to the proceeds of even purely intrastate
activities that might, in [*337] the aggregate, substantially affect interstate commerce. 159 But one
might justifiably wonder what types of proceeds do not fall within this description. Virtually all goods
and currency represent the products of having engaged in commerce; the typical robbery victim almost
invariably will have acquired the contents of her wallet from engaging in some trade or profession. The
mine-run gunpoint mugging of a city denizen for ten dollars is now, according to Taylor, a federal crime.
160 And if the victim is killed, in Boston or Brooklyn, Milwaukee or Minneapolis, Providence or Peoria,
Detroit or Des Moines, the federal government can seek the death penalty.

One can also imagine other potential federal capital crimes in the not-too-distant future. For example,
in the wake of the killings of five police officers in Dallas, Texas in the summer of 2016, U.S. Senators
from Texas John Cornyn and Ted Cruz have proposed the Back the Blue Act, which would impose federal
criminal liability, including the death penalty, for the killing of any federal law enforcement officer or any
law enforcement officer of any agency that receives federal funding. 161 Because federal aid to state
and local law enforcement is so widespread, 162 the Back the Blue Act, if passed, could virtually
capitalize the murder of any police officer in the country.

Even more broadly sweeping would be a federal crime prohibiting any murder that utilizes any "means,
facility, or instrumentality of interstate commerce" in the commission or in furtherance of the
commission of the offense. In addition to federalizing most murders for the same reasons that most
kidnappings are federal, 163 a killing would be a federal crime so [*338] long as the murder weapon
crossed state lines. Indeed, federal prohibitions on the possession of such items as guns, 164
ammunition, 165 and body armor 166 now rest on this very tenuous connection to interstate
commerce. 167 In fact, the U.S. Senate in 1991 approved a provision that would have made it a federal
crime, subject to the death penalty, to commit murder using a firearm that had "moved at any time in
interstate or foreign commerce." 168 Though this provision never became law, this move would have
dramatically increased the number of murders that violate federal law. As the amendment's primary
sponsor, Sen. Alphonse D'Amato of New York, put it, it would have applied to "most gun-related
murders." 169 Sen. D'Amato said that the measure "was aimed primarily at letting federal prosecutors
seek the death penalty in 14 states where capital punishment is not on the books." 170
 --- EXT: Doesn’t Solve

Don’t solve --- federal death penalty will be expanded if more states abolish it
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

I. INTRODUCTION

Lurking in the debate over the death penalty lies an issue that has received little attention in the public
mind: the federal death penalty in non-death-penalty states. 1 Read any newspaper article about a case
involving this phenomenon and, buried toward the end of the piece, it will briefly remind the reader that
although the state has no death penalty, the defendant is subject to execution because he is being
prosecuted in federal court. This it will present matter-of-factly, ignoring the substantial federalism
implications of the case. 2

By contrast, this issue has garnered outsized attention in legal scholarship given the tiny proportion of
federal capital cases in non-death states as compared with death penalty cases overall. 3 As early as
2001, scholars have noted the problematics of the federal government's pursuit of a punishment for
crimes [*311] committed in states that do not authorize that punishment. 4 Federal capital defendants
have begun to raise this as a constitutional issue and district courts have begun to address it. Yet, as of
now, no federal appeals court has addressed it head on.

This Article predicts that, as the death penalty recedes from some states but remains in force at the
federal level, this issue will become more prominent in the coming decades. The federal death penalty
is sometimes used as a device for addressing truly heinous crimes that cannot be punished capitally by
state law. As more states, and especially more populous states with more murders, abandon the
death penalty, the federal government will step in more and more in order to exact retribution in cases
that seem to cry out for it. They will likely do so through expansive use of federal kidnapping and
robbery laws, and might very well enact new statutes to bring more mine-run murders within federal
jurisdiction. Part I discusses the past. It starts with the 1937 Chebatoris case, the only case in U.S. history
before 1993 (so it appears) in which the [*312] U.S. sought the death penalty for a crime in a non-
death-penalty state. It turns to the spate of such cases in the past twenty-four years and identifies some
trends in those cases. Part II makes some predictions about the relatively near future: that the federal
government and some states will retain the death penalty even as some states abandon it, and that the
federal death penalty will likely be used to reach fairly typical murders. This Part will show that the
already expansive federal kidnapping and robbery statutes might be utilized for these purposes and
predicts that even more expansive federal statutes are possible to bring even more murder cases
within federal jurisdiction.
CP will cause extensive expansion of federal death penalty in non-death states
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

Cases like Jacques, Pleau, and Wilson show the potential for the federal government to seek the death
penalty in cases of heinous murders that have traditionally been prosecuted by the [*327] states.
These cases have been few and far between. Still, cases such as these might represent in some sense a
testing of the waters for more extensive incursions by the federal death penalty into non-death
states. One might expect such incursions if the death penalty continues to recede from states with
large populations while remaining available at the federal level.

III. THE FUTURE OF THE FEDERAL DEATH PENALTY IN NON-DEATH STATES

Will the death penalty still be with us twenty, thirty, or fifty years from now? Some trends, abolitionists
like to tell us, indicate that the death penalty is on its way out. Yet other trends indicate retention by at
least some of the states. In the next few decades, more states are likely to abandon the death penalty.
But, absent some Furman-like shift in the constitutional firmament, 91 capital punishment will likely
remain a fixture in about half the states and at the federal level as well. Moreover, federal jurisdiction
will continue to be used expansively to reach cases such as Jacques, Pleau, and Wilson. It is quite likely,
then, that we will see even more extensive use of the federal death penalty as a means of seeking
retribution for the most heinous killings in non-death states.

Federal government empirically creates new laws to expand cases in non-death

penalty states
Mannheimmer, 17 --- Professor of Law and Associate Dean for Faculty Development, Salmon P.
Chase College of Law, Northern Kentucky University (January 2017, Michael J. Zydney, “The Coming
Federalism Battle in the War over the Death Penalty,” 70 Ark. L. Rev. 309, Nexis Uni via Umich Libraries,
JMP)

B. The Upward Trend Since 1993

No other federal capital prosecutions took place in non-death penalty states until after the U.S. Supreme
Court's decision in Furman v. Georgia 20 placed capital prosecutions temporarily on hold nationwide. In
Furman v. Georgia, the Court held that the imposition of the death penalty through the unbounded
discretion of a judge or jury violates the Eighth Amendment's bar on "cruel and unusual punishments,"
as incorporated by the Fourteenth Amendment's guarantee of due process. 21 In Gregg v. Georgia, the
Court approved a statutory scheme that allowed for imposition of the death penalty by a jury after
"guided discretion." 22 For a time, with no congressional action, federal capital provisions were left in
limbo: they authorized the death penalty but did not allow for the kind of guided discretion that would
render them in compliance with the procedures mandated by Furman and Gregg. 23 That would come
only in 1988 with the passage of the Anti-Drug Abuse Act, colloquially known as the Drug Kingpin Act. 24
This Act authorized the death penalty for a small number [*315] of drug-related offenses and provided
procedures for the implementation of the federal death penalty. 25 Still, prior to 1994, only five
defendants were prosecuted capitally by the federal government in non-death penalty states. 26 Then
the door to federal capital prosecutions flew wide open with the Federal Death Penalty Act in 1994.
27 By creating new crimes punishable by death and by authorizing the death penalty for some pre-
existing federal crimes, the FDPA created about sixty capital crimes. 28

Since 1993, federal capital prosecutions have been brought against sixty-nine defendants in non-death
penalty states, resulting in eleven sentences of death. 29 Excluding one currently pending case, the
federal government has obtained death verdicts in eleven of sixty-eight, or 16.18%, of cases. 30 The
eleven death sentences represent 30.56% of the thirty-six cases that went to juries, including one
acquittal. 31 As of this writing, six people are under sentence of death for crimes committed in non-
death penalty states. 32

Some trends are notable among the federal death penalty cases brought in the modern era in non-death
penalty states. [*316] First, it is worth noting that twenty notices of intent were filed during the eight
years of the Clinton administration (Jan. 20, 1993, to Jan. 20, 2001), thirty-nine during the George W.
Bush administration (Jan. 20, 2001, to Jan. 20, 2009), and only ten during the Obama administration
(Jan. 20, 2009, to Jan. 20, 2017). 33 Thus, more were filed during the eight years of a Republican
administration (thirty-nine) than during nearly sixteen years of Democratic administrations (thirty).
 AT: CP States – No Court Modeling

The Court won’t abolish the death penalty --- even with moves by states
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.226-228,
JMP)

Will the Supreme Court Abolish the Death Penalty?

“Welcome to Groundhog Day,” wrote Justice Antonin Scalia, always the most fervent death penalty
defender on the Supreme Court, in response to calls that the court abolish the death penalty. This was in
2015, when, yet again, a death row inmate was arguing that the death penalty violated the Eighth
Amendment, and yet again, “a vocal minority of the Court . . . insist that now, at long last, the death
penalty must be abolished for good.”31 Could this time be different? Perhaps the Supreme Court could
do it again, as they did in Furman v. Georgia, which abolished the death penalty nationwide. The justices
must remain chastened by what happened after Furman , though, when the court made its
embarrassed about-face just four years later, with public support for the death penalty resurgent and a
backlash against the court’s interference materializing. Once bitten and twice shy, perhaps.

When “a country of over 200 million people inflicts an unusually severe punishment no more than 50
times a year, the inference is strong that the punishment is not being regularly and fairly applied,” wrote
Justice William Brennan when the court struck down the death penalty in 1972.32 The story of the great
death penalty decline raises complex constitutional questions. The Supreme Court has long been
concerned with arbitrariness as evidence that the death penalty is a cruel and unusual punishment
under the Eighth Amendment. Today we are a country of over 320 million, and we are imposing it less
than fifty times a year. We now have about ten thousand murders a year—and only a few dozen result
in death sentences. Most of the remaining death sentences are imposed in states like California that are
not carrying out executions. The American death penalty is now arbitrary in the extreme. “These death
sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,”
Justice Potter Stewart famously wrote in his opinion in Furman v. Georgia. Today, in fact, the odds of a
death sentence for a convicted murderer are not so different than the odds of being struck by lighting.

Supreme Court Justices still talk about abolishing the death penalty. Some do it only when they are
about to retire or have retired. Supreme Court Justice Harry Blackmun did that, then Justice David
Souter and then Justice John Paul Stevens. Breaking that pattern, in his 2015 opinion in Glossip v. Gross,
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, suggested categorical opposition to the
death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in
public opinion, and the decline in death sentences across the country. Justice Breyer added concerns
about wrongful convictions, arbitrariness, and delay—and so he called for full briefing on whether the
American death penalty violates the Eighth Amendment.33 In 2016, Justice Sonia Sotomayor noted that
many have questioned the fairness and reliability of the death penalty, and in a sharp dissent she argued
that for defendants “whose lives are marked by extensive mitigation circumstances that might convince
a jury to choose life over death,” it is crucial that the jury be given the chance to “make the weighty—
and final—decision whether such a person is entitled to mercy.”34
The research I have presented provides new reasons to be concerned with the constitutionality of the
death penalty. The death penalty is an outlier phenomenon in a small number of counties. Furthermore,
if one of the drivers of the decline is improved lawyering, then there is an added concern over the right
to counsel protected under the Sixth Amendment, as well as the Eighth Amendment right to be free
from cruel and unusual punishment. If people are sentenced to death because the state gives them the
worst lawyers, and not because they are the worst murderers, then today’s death penalty becomes all
the more troubling. Where race and arbitrary differences among county prosecutors play a driving role
in death sentencing, then the punishment exists only as a bigoted relic of our past.

Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it
ourselves. Some law professors think the courts provide false hope, and only by changing public opinion
and the law on the ground can meaningful and lasting change occur. Then again, the pace of social and
legal change in recent years on other constitutional issues has surprised many observers. None thought
that same-sex marriage would be so quickly adopted in states and then found constitutionally protected
by the Supreme Court. Are there lessons from the same-sex-marriage movement, which resulted in a
victory in the Supreme Court, for the anti–death penalty movement? The same-sex-marriage litigators
achieved victories in many lower courts before they took their case to the Supreme Court , building a
substantial factual record in the process. They also achieved victories in statehouses. Anti–death
penalty forces have done the same, actually, with more states abolishing the death penalty and
vanishingly few death sentences on the ground.

Groundhog Day will repeat itself many times in the years ahead. Death row inmates are filing briefs,
heeding Justice Stephen Breyer’s call to bring to the Supreme Court the question whether the entire
death penalty is unconstitutional. Some law professors argue that the courts have constructed the
American death penalty since the 1970s, and that it must be the courts that finally reckon with their
creation. Still, it is not at all clear that many on the Supreme Court would make such a bold move after
decades of incremental regulation of the death penalty. The justices may be too invested in the
modern death penalty they created.

And, the Court is becoming more conservative

Arango, 19 (4/7/19, Tim, “Democrats Rethink the Death Penalty, and Its Politics,”
https://www.nytimes.com/2019/04/07/us/politics/death-penalty-democrats.html, accessed on
3/24/2020, JMP)

Limiting executions, but not ending them

For all the shifts on the death penalty, its status now is defined by two things. The Supreme Court,
which determines its legality, seems firmly in favor of it. And at the state level, where prosecutors,
jurors and local courts administer the justice system, the number of death sentences and executions is
plummeting.

A very different Supreme Court declared executions unconstitutional in 1972, saying the arbitrary use of
capital punishment constituted “cruel and unusual punishment” under the Eighth Amendment. Four
years later, after states began remaking their death penalty systems, the court ruled that executions
could resume. (The first new federal death penalty statutes were approved in 1988.)
Executions soared during a period of high crimes rates in the 1980s and 1990s. The high point for death
sentences was 1996, when 315 people were condemned to die. In 1999, 98 people were executed, the
most in any year since 1976.

Since then, as crime has fallen, the number of new death sentences dropped to 31 in 2016, a modern-
era low, and 20 states have ended the practice .

In three important cases in recent years — in 20 02, 2005 and 2008 — the court has narrowed the death
penalty’s scope, ruling that juveniles and those with intellectual disabilities can’t be executed, and
limiting the types of crimes — mostly only murder — that are eligible for a capital sentence.

But the court — with two new conservative justices appointed by Mr. Trump, Neil M. Gorsuch and
Brett M. Kavanaugh, and a 5-4 conservative majority — is seen as solidly behind the death penalty.

That was vividly illustrated by a bitterly divided recent case in which the court ruled by 5-4 to allow the
execution of an inmate in Missouri who said a rare medical condition would make him choke on his own
blood during his lethal injection.

Justice Gorsuch, writing for the majority, said the Eighth Amendment “does not guarantee a prisoner a
painless death.”

If President Trump is able to nominate additional justices who are confirmed, his successor’s influence
on the death penalty would be limited to enacting a federal moratorium, nominating district court and
appeals court judges and using the bully pulpit to make a case against capital punishment.
 --- EXT: Court More Conservative

Court has a firm majority in favor of the death penalty – won’t revisit the issue
Ford, 18 (7/19/18, Matt, “America Is Stuck With the Death Penalty for (at Least) a Generation; With
Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go
local,” https://newrepublic.com/article/150036/america-stuck-death-penalty-at-least-generation,
accessed on 4/29/2020, JMP)

When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it,
the justices effectively took ownership of the American death penalty and all its outcomes. They have
spent the decades since then setting its legal and constitutional parameters, supervising its general
implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.

That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s
retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose
willingness to cross ideological divides made him the deciding factor in many legal battles. In cases
involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment
often meant the difference between life and death for hundreds of death-row prisoners.

“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,”
Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often
the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but
he was also often a fifth vote for determining that a particular death-penalty practice was
unconstitutional.”

The high court will likely continue to intervene in death-penalty cases that stray too far from the legal
mainstream. But without Kennedy, it will no longer be the venue for a systemic attack on capital
punishment as it had been in recent years. “It seems likely that there will be a firm, five-person
majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the
constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who
specializes in the death penalty, told me.

Gorsuch and Kavanaugh will prevent Court from abolishing the death penalty
Meltsner, 19 --- Professor of Law at Northeastern University Law School (8/5/19, Michael, “The
Return of the Federal Death Penalty,” https://www.jurist.org/commentary/2019/08/michael-meltsner-
death-penalty/#, accessed on 4/12/2020, JMP)

Justices like Kennedy and Stevens, opponents of the death penalty once expected abolition would come
from an eventual Supreme Court decision but confirmation of Trump’s nominees, Justices Gorsuch and
Kavanaugh, have dashed those hopes.
 AT: CP States – Links to Elections

Links to elections --- forces candidates to talk about the death penalty --- Trump
empirically capitalizes on state lead efforts
Arango, 19 (4/7/19, Tim, “Democrats Rethink the Death Penalty, and Its Politics,”
https://www.nytimes.com/2019/04/07/us/politics/death-penalty-democrats.html, accessed on
3/24/2020, JMP)

LOS ANGELES — By signing an executive order, Gov. Gavin Newsom of California recently ended the threat of
execution as long as he is in office for the 737 inmates on the state’s death row, the largest in the Western Hemisphere.
Almost immediately, Democratic presidential candidates lined up in support, calling capital punishment a moral outrage infected with racial
bias. Senator Kamala Harris of California, a former prosecutor, called for a federal moratorium on executions. Former Representative Beto
O’Rourke of Texas did the same.

The moment marked a generational shift for a party where some candidates long supported the death penalty to protect themselves from
being portrayed as soft on crime.

But Democrats aren’t leading a national debate; they are following a decades-long trend that has seen support for the death penalty drop from
nearly 80 percent in the 1990s to just over 50 percent now.

Still, many
feel that Mr. Newsom was doing his party no favors politically by forcing Democrats to talk
about an issue that can still be fraught in a general election . Even in solidly Democratic California,
voters in 2016 rejected a ballot initiative to end the death penalty and instead approved one to expedite
executions.
In short, the moment captured what has changed significantly and what has not with an issue that is hard-wired into the nation’s psyche. Like
the proliferation of guns, capital punishment distinguishes the United States from other Western democracies, virtually all of which have
banned it.

Bill Whalen, a research fellow at the Hoover Institution who once advised Pete Wilson, a Republican former governor of California, wrote in a
column: “Every Democrat who wants to unseat President Trump now must figure out where they stand on the death penalty.”

He continued: “For some triangulating Democrats, that’s a tricky balancing act given that capital punishment is despised by the party’s
progressive base but is far more popular in the crime-and-order Heartland.”

The new attention notwithstanding, presidents are limited in their power over capital punishment, several experts pointed out in interviews. A
president could clear federal death row, but that includes only 62 people compared with more than 2,500 condemned inmates in state prisons.

The federal government has executed only three people since it reinstated capital punishment in 1988 — one of them was Timothy McVeigh —
and the last one was in 2003.

The president has far greater power to determine the future of capital punishment in the United States by appointing justices to the Supreme
Court. Experts expect the court to eventually rule on whether the Constitution allows executions at a time of increasing recognition of the
enormous financial costs of the death penalty, high-profile exonerations and research showing persistent racial bias in capital cases.

“The president, and what the president does, will bear very much on the Supreme Court’s thinking on this, because the president does reflect
the national electorate,” said James S. Liebman, a professor at Columbia University who specializes in the death penalty.

New positions and different risks

You don’t have to look back very far to see what a shift there has been in the positions taken by Democratic candidates.

In 2016, for the first time, the Democratic Party platform called for the abolition of the death penalty. But Hillary Clinton, the party’s nominee
for president, supported capital punishment. President Barack Obama never called for its end, either. Al Gore was a supporter, and so was Bill
Clinton.
Some fear it could still be a losing issue in a general election against President Trump, who has talked about expanding those eligible for
execution to include convicted drug dealers and could use the issue to rally his base and portray Democrats as weak on crime.

In a Twitter post about Mr. Newsom’s moratorium, Mr. Trump wrote, “friends and families of the always
forgotten VICTIMS are not thrilled, and neither am I!”
The issue illuminates ideological and generational divides among many Democratic voters. Many of the presidential candidates are on record
opposing capital punishment; Joseph R. Biden Jr., the former vice president who is expected to enter the race in the coming weeks, has
supported it.

As a senator in the 1990s, Mr. Biden supported many get-tough-on-crime policies that liberals now disavow, including limits on appeals for
death row inmates.

“Biden was one of the major proponents of the 1994 amendments that severely limited the ability of death row prisoners to obtain meaningful
judicial review,” said Robert Dunham, the executive director of the Death Penalty Information Center, a nonprofit group that provides analysis
and information on capital punishment. “Other people who have sponsored that bill have said they thought that was a mistake. And I think that
voters will have to decide whether candidates for office have made mistakes and learned from them, or whether they are professing new views
because the views of the public have changed.”

While Ms. Harris has long opposed capital punishment, she has a somewhat complicated history on the issue. As the district attorney in San
Francisco, she refused to seek a death sentence for a defendant accused of murdering a police officer, provoking outrage from the right. But
she defended California’s death penalty as the state’s attorney general, and twice, in 2012 and 2016, she refused to take a stand on ballot
initiatives that proposed to abolish it.

Aside from Mr. Biden, most of the other candidates have opposed the death penalty. In addition to Ms. Harris and Mr. O’Rourke, who have said
they would support a federal moratorium, Senators Bernie Sanders, Cory Booker, Elizabeth Warren and Kirsten Gillibrand all said they support
Mr. Newsom’s moratorium. Two others in the race — John Hickenlooper, former governor of Colorado, and Jay Inslee, governor of Washington
— imposed moratoriums in their states.

“It’s kind of interesting that they are talking about it because it had pretty much dropped off the radar for national campaigns,” said Kent
Scheidegger, the legal director of the Criminal Justice Legal Foundation , a group based in Sacramento that has led
campaigns in California and across the country in support of the death penalty. “I’d love to see it made an issue.”

He predicted that it may “drop back off the screen in the national campaign.”
“I don’t think Democrats want this to be an issue in a general election, because it would be a loser for them,” he said.
Opioid PIC Answers
 AT: CP Opioid PIC – Will Make Problem Worse

Death penalty will make the opioid crisis worse --- results in more potent drugs
Calton, 18 --- Mises Institute Research Fellow and an economic historian (3/22/18, Chris, “No, The
Death Penalty Does Not Stop Drug Trafficking,” https://mises.org/wire/no-death-penalty-does-not-stop-
drug-trafficking, accessed on 4/15/2020, JMP)

The Trump administration is continuing to raise eyebrows with its not-so-new approaches to
longstanding problems. The most recent is the plan to “solve” the opioid epidemic by, among other
things, introducing the death penalty in certain cases for drug dealers. While the death penalty may
seem like a new tactic, it’s essentially just a continuation of the century-long pattern of the drug war:
when the policies aren’t working, make them tougher.

There are some immediate objections one can think of to why the death penalty won’t be an effective
deterrent, not the least of which is the fact that drug dealers are already willing to kill each other. But
President Trump is citing the supposed successes of China and Singapore as justification for resorting to
the death penalty. In a speech given in Pennsylvania, Trump said:

The only way to solve the drug problem is through toughness. When you catch a drug dealer you gotta
put him away for a long time. When I was in China and other places, by the way, I said, Mr. President, do
you have a drug problem? “No, no, no, we do not.” I said, Huh. Big country, 1.4 billion people, right. Not
much of a drug problem. I said what do you attribute that to? “Well, the death penalty.”

Trump made similar comments regarding Singapore’s supposed success at combating drugs by imposing
the death penalty on traffickers.

The only problem with this narrative is that China's drug problem appears to be growing. Chinese
officials may be telling Trump there's no drug problem, but Chinese officials are saying something quite
different elsewhere. According to the South China Morning Post:

Chinese seizures of methamphetamine, ketamine and other synthetic drugs surged by 106 per cent year
on year in 2016, said Liu Yuejin, vice-director of the China National Narcotics Control Commission.

“Domestic production of crystalline methamphetamine, ketamine, and NPS was severe, not only
consumed in the country but also smuggled overseas,” Liu told a press conference, adding that the
market for synthetic drugs kept expanding and “in general, the drug problem is still spreading at a fast
pace”.

The New York Times notes that drug use has become widespread in China's large cities:

Although heroin is the most commonly used illegal drug among rural Chinese, the country’s booming
cities have become major markets for methamphetamine. A study of sewage in four megacities,
published last year in the international journal Science of the Total Environment, reported that meth
was omnipresent in Beijing, Shanghai, Guangzhou and Shenzhen. In Beijing, the greatest concentration
was found at a treatment plant serving the city’s highest density of nightclubs and bars, while China’s
wealthy coastal cities in the south were determined to have the highest total consumption of meth,
cocaine, ecstasy and ketamine, according to the study.
Singapore, meanwhile, as part of their Misuse of Drugs Act imposed a mandatory death penalty on drug
dealers in 1973. As a result, Singapore has had one of the highest per capita rates of execution of any
country. In the 1990s, Singapore executed nearly 14 people per million, compared to China’s 2 million.
With such harsh penalties so thoroughly carried out, one might imagine that drug use must be on the
decline.

Official statistics for the city-state suggest that drug use in Singapore is substantially lower than the vast
majority of countries. But there seems to be plenty of reason to doubt the official numbers. The Central
Narcotics Bureau of Singapore has reported a rise in new users among those arrested, and they also
boast of the “19 island-wide operations targeting drug traffickers and abusers” carried out in 2017
alone, in addition to 1,661 operations conducted to intercept drug imports. The total amount of drugs
seized in these operations suggest that the market for drugs is substantially larger than Singapore’s
government is willing to admit.

Moreover, as Rick Lines shows, Singapore has a reputation for fudging its drug data. But the data it does
provide hardly shows a disappearing drug problem:

Interestingly, what the narcotics bureau’s 2016 report does show is that seizures of both
methamphetamine and cannabis increased by approximately 20% over the previous year, while heroin
seizures remain basically level. Hardly indicators of a shrinking drug market.

None of this should be surprising, economically. As long as there is a market, there will be willing
suppliers. Tougher policies do have an effect, which is to increase the risk associated with entering the
illicit drug industry. This might push up the price of drugs, at least temporarily, but as Mark Thornton
has long demonstrated, it also serves to make the drugs more potent.

The policies the Trump administration is touting are contradictory to their stated goal. The focus is not
just on opioids, but on fentanyl-laced opioids, as fentanyl increases the potency and deadliness of the
drug. But fentanyl’s introduction to the heroin market is the result of stricter drug laws increasing the
cost of drug importation, not the lack of “toughness.” If Trump’s policies are put into force, there is no
reason to believe that the opioid epidemic will do anything but worsen.

If the White House really wants to solve the opioid epidemic, the best thing they can do is to repeal the
criminalization of heroin and other illicit substances. As I argued two years ago, legal heroin — contrary
as the idea might seem to most people — would actually remove the factors that lead to highly potent
drugs of unreliable consistency. Just as people moved from moonshine to beer after the repeal of
alcohol prohibition, the decriminalization of drugs would remove the economic incentives to produce
fentanyl-laced heroin and other increasingly dangerous substances.

Retaining death penalty will hurt those it’s trying to help – 1/3 of drug dealers are also
users
Lind, 18 --- Senior Correspondent at Vox, one of the country's leading immigration reporters (3/19/18,
Dara, “The death penalty for drug dealers is a terrible idea. It’s also part of the White House’s new
opioid strategy. A plan to reduce opioid deaths by killing more people,” https://www.vox.com/policy-
and-politics/2018/3/16/17126430/trump-opioid-dealers-death-penalty, accessed on 4/15/2020, JMP)
A lot of drug dealers are also drug users — a 2017 Bureau of Justice Statistics study found that “nearly a
third of drug offenders (30 percent of state prisoners and 29 percent of jail inmates) said they
committed the offense to get drugs or money for drugs.”

In theory, drug users are supposed to be the people that Trump and his administration are trying to save
from drugs. The way Trump paints it, users have to be saved from evil drug dealers. And because drug
dealers are evil, the only way to curb them is to show them no mercy.

But the law, evidence, and logic all point to one conclusion: To the extent that anyone gets punished
by a death penalty for drug dealers, it will be the people Trump is supposedly trying to help.
 AT: CP Opioid PIC – Won’t Reduce Opioid Use

CP won’t reduce opioid deaths --- hardline policies by states proves it doesn’t deter
Lind, 18 --- Senior Correspondent at Vox, one of the country's leading immigration reporters (3/19/18,
Dara, “The death penalty for drug dealers is a terrible idea. It’s also part of the White House’s new
opioid strategy. A plan to reduce opioid deaths by killing more people,” https://www.vox.com/policy-
and-politics/2018/3/16/17126430/trump-opioid-dealers-death-penalty, accessed on 4/15/2020, JMP)

Federal law allows prosecutors to seek the death penalty only for specific crimes — usually involving
murder. A drug dealer, for example, can be sentenced to death for killing someone in the midst of
committing a drug crime, or for killing or trying to kill a prosecutor or juror. But the law also allows
prosecutors to ask for the death penalty for “drug kingpins” who are convicted of leading criminal
enterprises that either involve large quantities of drugs (600 grams of heroin or of “a substance that
contains a detectable amount of” fentanyl, for example) or that rake in huge amounts of money ($20
million in the course of a year).

The White House says that the death penalty should be an option only for the most serious dealers (and
they’re particularly concerned about fentanyl). So that’s probably what they’re talking about.

Because the “drug kingpin” death penalty has never actually been used, it’s not clear whether it’s
constitutional. The Supreme Court has struck down laws that allow people to be put to death for crimes
that don’t involve homicides.

But constitutionality is really the least of the administration’s concerns. The bigger problem is that the
policy is a bad idea that is not going to help, at all.

Like many policies Trump favors, its appeal to his allies (Rep. Chris Collins of New York, for example, has
already said he’s “all in” on executing dealers) lies in the fact that it seems tough if you don’t think about
it too hard. But there’s simply no evidence, at all, that this will actually reduce deaths from opioids —
and quite a bit of evidence that it won’t.

Using the death penalty for dealers will either do nothing or do bad things

Some prosecutors, at both the state and federal levels, have started treating fatal drug overdoses as
homicides as a way to slap longer prison sentences on drug dealers. (It’s hardly a wing-nut thing; one of
the pioneers of this tactic was former US Attorney Preet Bharara of New York, who’s now a prominent
Trump critic.)

Sometimes they’re just asking for longer sentences because the defendant’s product resulted in a death;
sometimes they charge dealers with manslaughter or criminal negligence. The Florida state legislature
passed a law last year allowing prosecutors to file murder charges against heroin or fentanyl dealers
after fatal overdoses — a charge that allows them to seek the death penalty.

But there is no evidence that the tactic is succeeding in reducing the opioid crisis . And given everything
we know about crime, it would be shocking if it did.
Classical theories of crime assumed that there were three factors of punishment that deterred people
from committing a crime: swiftness, certainty, and severity. Modern social science has shown that the
case for any of these is ambiguous and limited.

But to the extent that punishment can deter crime, it will only work if the would-be criminal is certain
he’d be caught quickly and punished: certainty and swiftness. Increasing the severity of punishment, in
other words, is the least effective lever a policymaker can pull.

This is definitely true when it comes to drugs; “there’s no good evidence that tougher punishments or
harsher supply-elimination efforts do a better job of driving down access to drugs and substance misuse
than lighter penalties,” my colleague German Lopez wrote last year, summarizing a 2014 report from
Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. “So
increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.”

That track record won’t suddenly improve when the death penalty is added to the punishment mix. The
deterrent effect of being sentenced to death, as opposed to a long prison sentence, is either so small
it hasn’t yet been captured in the research or it’s totally nonexistent. And in the meantime, the death
penalty as currently practiced in the US is anything but swift and certain: Getting sentenced to death
sets off decades of appeals and litigation as lawyers try every possible avenue to get the sentence struck
down on procedural grounds.

In a worst-case scenario, encouraging prosecutors to go for the death penalty by filing the most serious
possible charges could result in fewer dealers even going to prison. Prosecutors already have a hard
time convicting dealers in overdose deaths because it’s hard to prove beyond a reasonable doubt that
the victim was killed by a particular batch of drugs and that this particular dealer sold them to him. And
it’s even harder to prove that the dealer knew the drugs were lethal. Leave a reasonable doubt and the
dealer could walk away with an acquittal.

In a best-case scenario, the last person who touched the drugs before the victim — the only person who
can definitively be tied to the overdose — will be convicted and sentenced to death.

For all Trump and other officials talk about “big drug dealers,” the fact of the matter is that most US drug
enforcement treats everyone involved with moving drugs as serious criminals. It can be hard to tell the
difference between a dealer and a courier, much less between a dealer at the bottom of the food chain
and a kingpin.

Won’t reduce the supply or use of drugs

Roubein, 18 --- covered health policy and politics at The Hill (3/17/18, Rachel, “Obstacles for Trump in
push to expand the death penalty,” https://thehill.com/policy/healthcare/378879-obstacles-for-trump-
in-push-to-expand-the-death-penalty, accessed on 4/18/2020, JMP)

It’s not clear that harsher enforcement efforts decrease the supply of drugs, said Harold Pollack, of the
University of Chicago.

“There’s certainly a lot of evidence that keeping the most dangerous drugs illegal and having the basic
apparatus of drug enforcement keeps the prices of street drugs well above what they would be if you
could buy it at CVS. There’s not a lot of evidence that turning up the dial once it’s illegal has nearly the
same impact,” said Pollack, who is a Helen Ross Professor at the School of Social Service Administration.

Pollack notes that in the drug trade, lives are generally already at risk.

“The kinds of drug dealer who might be subject to the death penalty are already subject to the death
penalty from each other,” he said. “There’s a lot of violence in the drug market that has nothing to do
with what law enforcement is doing.”

CP won’t deter opioid use

Rosenberg, 19 (2/15/19, Eli, “Trump is ‘most excited’ about death penalty for drug dealers. Rights
groups say it’s a terrible idea,” https://www.washingtonpost.com/politics/2019/02/15/trump-again-
praises-strongmen-who-execute-drug-dealers-rights-groups-say-its-terrible-idea/, accessed on
4/15/2020, JMP)

Human rights experts said Trump’s regular praise for Xi is concerning and misleading.

“Not only do they execute people without due process, they run a dictatorship that’s getting tighter and
tighter by the day,” said Brad Adams, the Asia director at Human Rights Watch. “Activists and civil
libertarians are being routinely put in prison.”

While Trump claimed he was told that China does not have a drug problem, that does not appear to be
the case. According to China Daily, a state-run newspaper, police in China solved “140,000 criminal cases
related to drugs in 2016, arrested 168,000 suspected drug users, seized 82.1 tons of drugs and
destroyed 438 drug labs.” And the outlet noted that there were 2.5 million known drug addicts in China
by the end of 2017.

“It’s very common in economies with large growth rates, particularly countries moving away from abject
poverty,” Adams said.

Adams said that China does execute people in some cases for drug trafficking, distribution and
manufacturing but that its legal processes would not pass muster in the United States.

“There’s no due process,” he said, saying trials were closed. “Everything about every death penalty case
in China would fail the tests we have here for a fair trial.”

In January, a Canadian man, Robert Lloyd Schellenberg, who was found guilty of drug trafficking in
China, was sentenced to death in a case that Canadian Prime Minister Justin Trudeau said was politically
motivated.

Malaysia and Singapore have long had automatic penalties for drug traffickers, Adams said. But he said
there was no firm evidence that harsh measures like execution had any deterrent effect.

“So from every angle, Trump is just wrong, and it’s just really shocking to see him praise the use of the
death penalty in a country that has no respect for the presumption of innocence, access to lawyers, or a
fair trial,” he said.

Kristina Roth, a senior program officer for criminal justice at Amnesty International USA, agreed.
“Generally speaking, use of the death penalty for drug-related crimes or any other crimes is not
effective,” she said. “I think that if they were truly dedicated to addressing a serious amount of drug-
related deaths, they’d seek public health solutions rather than executing people.”
 AT: CP Opioid PIC – Won’t Solve / Legal Barriers

Won’t stop opioid use and court barriers block

Legendre, 18 (5/1/18, Ray, “Will the Death Penalty Solve America’s Opioid Crisis?”
https://news.law.fordham.edu/blog/2018/05/01/will-the-death-penalty-solve-americas-opioid-crisis/,
accessed on 4/15/2020, JMP)

Faced with a nationwide opioid epidemic, President Donald Trump has touted the death penalty for
drug dealers as a necessary solution to reduce America’s skyrocketing number of fatal overdoses. Trump
believes employing the death penalty exemplifies getting “tough” on dealers; however, according to
Fordham Law Professor Deborah W. Denno, a leading death penalty expert, the plan represents the
opposite, and, if implemented, will have no impact on achieving the president’s stated goal.

Trump publicly proposed on March 19 using the death penalty for drug dealers as a remedy for the
opioid crisis, which claimed more than 64,000 overdose victims in 2016, according to the Centers for
Disease Control. Two days later, U.S. Attorney General Jeff Sessions sent a memo to U.S. Attorneys
advising them of “appropriate cases” for which to seek the death penalty, including murder related to
racketeering crimes, gun deaths occurring during trafficking crimes, and murder related to criminal
enterprise. Sessions’ memo also included “dealing in extremely large quantities of drugs.”

Trump’s pro-death penalty stance is not unique among presidents—nor does it represent new rhetoric
for him—but his apparent willingness to employ the measure on people convicted of crimes not directly
linked to murder is a distinct departure from his predecessors, Denno noted. Further, Trump’s death
penalty proposal clashes with the law, public health realities, and the declining use of the death penalty
in America.

“The death penalty has always been this political vehicle that presidents and attorney generals bring out
to signal toughness,” Denno said. “But in the end, it has nothing to do with toughness. It’s ineffective,
highly expensive, and never serves the purpose it’s purported to serve.”

“The issue on the campaign trail with Trump was how far his death penalty rhetoric would go,” Denno
added. “This is an answer. But it’s one thing to say this sort of thing, and another to push it through.”

Congress passed federal legislation in 1994 allowing prosecutors to seek death against drug kingpins.
However, the U.S. Supreme Court has placed barriers against executions for killings that weren’t
intentional. Federal executions, in general, are very rare. Only two people have been executed for
federal crimes since 2001: Oklahoma City bomber Timothy McVeigh, and drug trafficker Juan Garza, who
was convicted of murdering three other drug traffickers.

Trump emphasized the need to execute drug dealers based on the rationale that “dealers kill thousands
of people during their lifetime”— a claim, Denno said, that has no factual or legal basis. Drug overdoses
are not intentional killings, and the cause and effect linking them to an individual’s death is more
tenuous than an actual murder, the professor explained.

Beyond the legal critiques of Trump’s proposal, the medical and health communities have pushed back
against his plan because it does not treat opioid addiction. The American Society of Addiction Medicine
estimated in 2015 that 2 million Americans had a substance use disorder involving prescription pain
relievers (e.g., oxycodone, hydrocodone, fentanyl, etc.) and almost 600,000 more had a substance use
disorder involving heroin.

“Considering the perception that most of the people selling drugs are opioid addicts themselves this is
not a group of people that will be responsive to any kind of threat,” Denno said. The Trump
administration’s death penalty proposal also does not address prescription-related opioid addiction.

Won’t be able to secure a death penalty conviction and execute drug dealers
Legendre, 18 (5/1/18, Ray, “Will the Death Penalty Solve America’s Opioid Crisis?”
https://news.law.fordham.edu/blog/2018/05/01/will-the-death-penalty-solve-americas-opioid-crisis/,
accessed on 4/15/2020, JMP) ***Deborah W. Denno is Fordham Law Professor and leading death
penalty expert

Even if Trump’s death penalty proposal followed the law, offered a deterrent against drug dealing, and
provided a public health benefit, it would still have one more major problem: the difficulty associated
with securing a death penalty conviction and subsequently executing people .

As of April 25, nine convicted murderers have been executed in four states, according to the Death
Penalty Information Center. Those nine men spent an average of 17 years on death row. This year’s
statistics are a trend rather than an anomaly. Twenty people were executed in the United States in
2016, marking a 25-year low.

“We can talk as tough and as big as we want, but the bottom line is juries aren’t convicting people and
prosecutors aren’t going for the death penalty even if they have the discretion to do so,” Denno said.

Unlikely to be utilized because there are concerns its unconstitutional

Jacobs & Dennis, 18 (Jennifer & Steven T., “Trump Tells Sessions He Favors Death Penalty for
Fentanyl Dealers,” https://www.bloomberg.com/news/articles/2018-08-23/trump-is-said-to-propose-
death-penalty-for-fentanyl-dealers, accessed on 4/16/2020, JMP)

President Donald Trump told Attorney General Jeff Sessions on Thursday that illegal dealers of the
opioid fentanyl should be sentenced to death when convicted, according to three administration
officials familiar with the matter.

Sessions met Trump at the White House to discuss overhauling prison sentences, hours after Trump
again ripped into the attorney general in an interview with Fox News. The meeting was cordial and the
two men agreed to delay a push for any criminal justice reforms until after midterm congressional
elections, one of the people said.

Several other administration officials were in the meeting, including Kellyanne Conway, who is
overseeing the White House’s opioid response, and senior adviser Jared Kushner.
It’s not the first time Trump has mused about sentencing drug dealers to death. Politico reported in
March that the proposal would be included in a plan expected from the White House to combat the
opioids crisis.

Trump wants the death penalty for cases in which fentanyl dealers caused someone’s death because of
drugs they sold, one of the administration officials said.

Constitutional Question

Under a law signed by President Bill Clinton, people who deal large quantities of drugs or make large
amounts of money from the trade can already be sentenced to death. But prosecutors have never
sought the penalty out of concern it would be found to be unconstitutional, Politico reported.
 AT: CP Opioid PIC – More Innocents Convicted

The counterplan will increase the number of innocent people targeted and convicted
Bala & Rizer, 18 --- *criminal justice senior fellow with the R Street Institute and a former Baltimore
public defender, AND **former federal prosecutor and served as a law enforcement officer for 20 years,
currently director of criminal justice and national security policy with the R Street Institute (4/5/2018,
Nila & Arthur, “Trump's death penalty for drug dealers proposal is bad policy,”
https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0406-dealer-death-20180404-story.html,
accessed on 4/18/2020, JMP)

Donald Trump has made clear he encourages the death penalty for drug traffickers. The plan found at
least one supporter, although public health advocates and most lawmakers believe such a proposal
would only make the opioid epidemic worse. Seeking the “ultimate penalty” for drug dealers is simply
the wrong policy call to solve the opioid crisis.

Under current federal law, the death penalty can be applied to drug trafficking cases where death occurs
— for example, if an individual is directly killed during a drug crime, or if a drug trafficker kills a juror.
However, Mr. Trump’s proposal suggests an expanded use of the “drug kingpin” provision in federal law,
which allows prosecutors to seek the death penalty in cases where drug dealers on the “kingpin” list are
involved in a criminal enterprise involving large amounts of drugs or cash flow. No administration has
ever used this provision against a defendant in this way.

Putting drug dealers to death is an idea that Mr. Trump appears to have adopted from a number of
Southeast Asian countries, including the Philippines, Singapore and China. Filipino President Rodrigo
Duterte, in particular, has overseen mass vigilante killings of alleged drug dealers and users. Both China
and Singapore have also come under fire for human rights abuses relating to executions. These are not
countries we should strive to emulate in this regard. Addressing our opioid crisis through execution
would put us in a club with the dictators and human rights-abusers of the world.

Furthermore, the president’s policy suggestion is inconsistent with the conservative principles he says
he espouses. The core of conservatism is a limited government, which fosters fairness and stands
against unauthorized government action. There is ample evidence, however, indicating that the
American justice system has administered the death penalty in an unfair and unlawful manner and
continues to do so. Indeed, studies dating back to the 1930s reinforce the notion that minorities and
impoverished citizens have been treated inequitably within the system.

Drug cases especially are fraught with complications. Prosecutors have an uphill battle convicting
dealers of overdose-related charges — it’s hard to prove that the dealer provided the particular drugs
causing the overdose and that the dealer knew the drugs would kill the individual. Additionally, the
method by which an individual is placed on the “kingpin” list lacks rigor and can occur for political
reasons. All of this uncertainty makes it even more likely that human error will occur and that
innocent people will be sentenced to death. Death is a uniquely final punishment, and when the justice
system makes mistakes, the cost is innocent human lives. Approximately one in 25 people sentenced to
death under existing policy were likely not guilty, according to one study. We should not tolerate a
policy that encourages that number to grow.
In fact, that is one reason why the Supreme Court has continually cabined the death penalty in the last
50 years, including protecting children and the mentally-disabled from its reach. It is also why death
penalty defendants are uniquely afforded far more process in the court system, including lengthy trials
and appeals. The additional process makes death penalty cases incredibly expensive. According to the
Death Penalty Information Center, the average trial in a federal death penalty case costs more than
$600,000 — eight times more than a trial where the death penalty is not sought.

For the most heinous of crimes, life without parole meets the justice system’s goals without wasting
resources and further hurting victims. Take the case of serial killer Rodney James Alcala, who murdered
at least five young women. Thanks to the additional process the system affords capital-punishment
defendants, the mother of one of the young women, Robin Samsoe, had to go through the pain of 30
appeals, writs and a retrial. The judge involved now wishes he’d given Rodney Alcala the option of life,
to spare Ms. Samsoe that pain.

If the reason for the death penalty is that it is a deterrent — that people will stop dealing drugs because
they might be executed — that reasoning is refuted by the evidence. States that impose the death
penalty have a higher murder rate than those that do not. Additionally, researchers have compared
murder rates before and after abolishing the death penalty, both within the United States as well as
abroad, and have found the threat of death seems to have little effect on behavior. States have been
executing fewer people over the last two decades, but the rates of violent crime have continued to fall
steadily.

Our justice system isn’t just the apparatus that keeps us safe, it is a reflection of who we are. Given
the multiple issues that plague capital punishment, expanding the death penalty reach to drug kingpins
is not only bad policy, it goes against our collective American values of fairness and justice.
 AT: CP Opioid PIC – Causes Court Clog

The CP will break the system --- overburden judges, prosecutors and public defenders
Roubein, 18 --- covered health policy and politics at The Hill (3/17/18, Rachel, “Obstacles for Trump in
push to expand the death penalty,” https://thehill.com/policy/healthcare/378879-obstacles-for-trump-
in-push-to-expand-the-death-penalty, accessed on 4/18/2020, JMP)

Holly Harris, the executive director of Justice Action Network, referred to the concept as “not serious.”

“I don’t know one single person who works in the criminal justice space who is for reform or against
reform who would support that sort of initiative,” she said, adding that includes ”conservatives,
progressives, law enforcement.”

Death penalty cases take years to play out and come with a hefty price tag, Harris said.

“It would be a huge burden on judges, on prosecutors, on public defenders,” she said. “It would break
our system to even consider executing that number of individuals.”
 AT: CP Opioid PIC – Focus on Opioids Fails

Shift to other drugs --- focus on opioids causes us to miss the next epidemics
Vergano, 19 (12/6/19, Dan, “This Was The Decade Drug Overdoses Killed Nearly Half A Million
Americans; It was also the decade we finally started treating drug addiction like a disease, spurred by an
overdose epidemic that ravaged white, rural America,”
https://www.buzzfeednews.com/article/danvergano/opioid-overdose-decade-war-on-drugs, accessed
on 4/23/20, JMP) ***Daniel Ciccarone is a medical epidemiologist with the University of California,
San Francisco

The Fourth Wave

Even as drug overdose deaths have started to level off, and attitudes toward drug addiction have begun
to change, another shift has started that will likely extend into the next decade. Deaths from stimulant
drugs, notably cocaine and meth, have suddenly started increasing.

Drug users may be shifting back to those drugs in reaction to the opioid deaths, suggested Ciccarone, a
familiar swing of the pendulum between depressants and stimulants seen in past drug epidemics.

More of the deaths are among older heroin users, often longtime black or Latino users in cities, who
favor “speedballs,” mixtures of cocaine and heroin, reports the Chicago Urban League. As well,
Ciccarone and other epidemiologists are seeing more mixed stimulant and opioid use, or “goofballs,”
among younger drug users, everywhere from Washington state to West Virginia.

“I’m calling it a fourth wave in the epidemic,” said Ciccarone. “Meth is not supposed to be a deadly drug.
Now we have young people dying from it.”

The challenge posed by these puzzling new deaths is to build a drug treatment system that covers more
than opioid addiction, said many of the experts interviewed by BuzzFeed News. The Trump
administration has focused heavily on the opioid crisis: Trump himself donated his most recent $100,000
quarterly salary to "continue the ongoing fight against the opioid crisis," and the administration
announced another $1.8 billion in state grants in September. But this focus on opioids alone might miss
the next phase of the epidemic.

“We don’t know what drug will be the next heroin, but there will be one,” said Ciccarone. ●
PIC / Reform CP Answers
 AT: PICs / CP Reform Death Penalty – Undermines Abolition

Even progressive reforms will normalize the death penalty and block full-scale
abolition
Steiker & Steiker, 02 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M. “Should Abolitionists Support Legislative "Reform" of the Death Penalty?”, 63 Ohio St. L.J.
417, Nexis Uni via Umich Libraries, JMP)

Even more commonly, in

state legislative committees, bills to "reform" death penalty procedures proliferate on
drafting tables, offering everything from mandatory DNA preservation and testing, to improved
representation in capital cases, to limitations on the execution of juveniles and persons with mental
retardation. 6 Other reforms include Ohio's proposal to replace the existing "beyond a reasonable doubt" standard with a "beyond any doubt" standard in
capital cases, Indiana's proposal to limit judicial overrides of non-death verdicts, North Carolina's proposal to allow trial judges to block the state from seeking the
death penalty if a judge determines that race was the primary reason prosecutors sought the death penalty, and several states' proposals to add life without
possibility of parole as a third alternative to death and life with possibility of parole. 7 In addition, many states have proposed extensive studies of the death
penalty, with some states calling for a moratorium on executions until results from such studies can be evaluated. 8

As committed abolitionists ourselves, we see cause for celebration in these developments. But as
students of past movements for abolition in the United States, we see some cause for concern as well. To state our
concern in perhaps the most provocative way, we worry that reforming our current practices of capital punishment may

be analogous to replacing the electric chair with lethal injection ; the reformed practice is
unquestionably better (fairer, more humane) than the one rejected, but the choice to reform also carries the distinct possibility that it
will normalize the underlying practice and avert the very critical gaze that gave rise to the reforming
impulse, thus delaying, or even permanently preventing, full-scale abolition of capital punishment .
In our past work, 9 we have argued that such a normalizing effect was the [*419] result of our one previous reforming moment--the attempt to abolish or reform
capital punishment through litigation that was spear-headed by the NAACP Legal Defense Fund in the 1960s and early 1970s. The abolitionist litigators achieved
their goal temporarily in 1972 with the Supreme Court's decision in Furman v. Georgia 10 striking down state capital punishment schemes as impermissibly
arbitrary. What was thought at the time to be abolition, however, turned out to be only a moratorium. Four years later in 1976, the Supreme Court chose the path
of regulation rather than abolition with its decisions in Gregg v. Georgia 11 and four companion cases, holding that the Eighth Amendment imposed various
procedural requirements on the death penalty's administration but permitted its continued use. Over the last twenty-five years, the Court has elaborated on this
reformist vision of constitutional regulation of capital punishment.

We assessed the Court's reformist project on its own terms, asking whether the Court achieved the goals explicit or implicit in Furman and the 1976 foundational
cases. Our assessment was not a positive one. Although the reformist approach spawned an extraordinarily intricate and detailed capital punishment jurisprudence,
the resulting doctrines were in practical terms largely unresponsive to the underlying concerns for fairness and heightened reliability that had first led to the
constitutional regulation of the death penalty. We described contemporary capital punishment law as the worst of all possible worlds. Its sheer complexity led to
numerous reversals of death sentences and thus imposed substantial costs on state criminal justice systems. On closer inspection, however, the complexity
concealed the minimalist nature of the Court's reforms, which tolerated, if not invited, the inequalities and capriciousness characteristic of the pre-Furman era.

We also argued that, apart from its failure on its own terms, the
Supreme Court's reformist regulation of capital punishment
might well have carried an additional unanticipated cost . Whereas abolitionists initially sought judicial

regulation of the death penalty as at least a first step towards abolition, judicial reform actually may
have helped to stabilize the death penalty as a social practice. We argued that the appearance of intensive
regulation of state death penalty practices , notwithstanding its virtual absence, played a role in legitimizing the
practice of capital punishment in the eyes of actors both within and outside the criminal justice
system, and we pointed to some objective indicators--such as the dramatic decline in the use of executive clemency in the post-Furman era 12 --as [*420]
support for this thesis.

Today, perhaps not surprisingly, 13 we find ourselves in a moment not dissimilar to the one that immediately preceded Furman and its progeny. A confluence of
events has worked to undermine the appearance of extensive, effective judicial reform of the death penalty. In response to the Oklahoma City bombing, Congress
quite visibly limited the scope of federal collateral review of state criminal convictions, promising in the title of the act a more "effective death penalty" through
lessened judicial interference. 14 At the same time, post-trial investigations revealed numerous death-sentenced inmates in Illinois and elsewhere who were in fact
innocent, or very likely innocent, of the underlying capital offenses with which they had been charged. 15 As a result, the popular critical scrutiny of contemporary
death penalty practices that virtually disappeared during the two-decade period of judicial reform following Furman has dramatically reappeared. Not surprisingly,
given the quite different character of the current Supreme Court from the Warren Court of the 1960s, much of the critical energy is now directed toward executive
and primarily legislative reform rather than judicial reform. 16

[*421] Our central question is whether the dynamic of legitimation we observed and described in the context of judicial reform is of equal concern in the context of
we believe that
legislative reform. Although reform through legislation differs in some important respects from reform through constitutional adjudication,

legislative reform poses some of the same problems of legitimation that were realized through judicial
reform. On the one hand, reformers might well believe that the reforms they urge--such as more DNA testing in capital cases, better capital defense
representation, or the categorical exclusion of juveniles or the mentally retarded from the ambit of capital punishment, to name just a few of the currently
proposed reforms--will make the administration of the death penalty fairer, more reliable, or simply narrower in scope, and therefore unquestionably good in and
of itself. On the other hand, the experience we have observed and described with judicial reform of capital punishment suggests that such reforms may also

have the effect of dissipating critical scrutiny of death penalty practices by making participants in, and
observers of, those practices more comfortable than they ought to be, or at least more comfortable than they otherwise
would be, with the underlying practice of capital punishment .
Hence, we arrive at the question that forms the title of this paper: "Should abolitionists support legislative reform of the death penalty?" Of course, abolitionists are
of many stripes: some base their opposition on religious or moral grounds, others base their opposition on the impossibility of structuring sufficiently fair and
reliable administration of capital punishment in our current society and our extant criminal justice system, and yet others base their opposition simply on the lack of
necessity for the death penalty, given the lack of compelling proof that it serves as a viable deterrent. Abolitionists from these three general camps, or abolitionists
with other, more particular concerns, might well have different responses to the array of potential legislative reforms currently on the table. And yet, any

person who continues to believe that the practice of capital punishment should be abandoned even if
the proposed reforms are implemented must at least consider the possible legitimating effect of such
reforms.
 --- EXT: Reform Entrenches Death Penalty

Reforms that make the death penalty seem fair OR justified legitimate and entrench it
Steiker & Steiker, 02 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M. “Should Abolitionists Support Legislative "Reform" of the Death Penalty?”, 63 Ohio St. L.J.
417, Nexis Uni via Umich Libraries, JMP)
II. LEGITIMATION AND ENTRENCHMENT

A vast social and political literature attempts to understand the relation between popular attitudes about social institutions and the stability of such institutions.
What beliefs, for example, contribute to law-abidingness? What sorts of ideologies help stabilize societies that are beset with inequality? How are those ideologies
"produced" or "transmitted"? Our project focuses more modestly on particular beliefs about a particular institution. What views does the public [*422] entertain
about the accuracy and fairness of the death penalty, and how does the "law," in the form of legislative decisionmaking, contribute to those views?

Public attitudes about the death penalty undoubtedly affect its continued viability. The last moment of significant
public disquiet concerning the death penalty, in the late 1960s, brought us close to judicial abolition as the Court sought to gauge "evolving standards of decency."
17 With this in mind, we attempt to assess the effect of legislative reforms on public attitudes by looking at two possible dynamics, legitimation and entrenchment.

There are at least two ways, we argue, in which legislative reform of the death penalty could legitimate the
practice of capital punishment. The first is virtually identical to the kind of legitimation we described as a by-product of judicial reform of the death
penalty--that is, some reforms may do very little to change the underlying practice but may offer the

appearance of much greater procedural regularity than they actually produce , thus inducing a false or
exaggerated belief in the fairness of the entire system of capital punishment . This sense of legitimation borrows from
the social theories of Max Weber and Antonio Gramsci and differs from the other, perhaps more commonly used, senses of the verb "to legitimate." The dictionary's
two primary definitions of legitimation do not (necessarily) involve the inducement of false or exaggerated belief. Rather, they refer, respectively, to the formal
process of authorization (as in "the Supreme Court legitimated an act of Congress by upholding it against constitutional challenge") 18 or to the dynamic of actually
providing true legitimacy (as in "the Supreme Court's documentation of coercive police interrogation techniques legitimated its conclusion that Miranda warnings
were necessary to prevent involuntary confessions"). 19 Weber's idea of legitimation, unlike these formal and normative conceptions, focuses on an individual's (or
a group's) experience or belief in the normative legitimacy of a social phenomenon, such as a set of relationships, a form of organization, or an ongoing custom or
practice, whatever might "really" be the case. 20

Popular support for the death penalty depends crucially on the perception that those sentenced to
death and executed are in fact guilty of the underlying offense. Historically, concerns about this sort of
accuracy have loomed large in several nations' movements to abolish the death penalty. In England, for example,
high-profile cases involving wrongful executions were at the center of the debates leading to abolition by Parliament. In this country as well, the possibility of
executing innocents seems to arouse the greatest opposition to the death penalty. The new "moment" in American death penalty politics is commonly traced back
to the discovery of erroneous convictions in Illinois, and polling data reflects the [*423] priority of this concern in shaping public attitudes toward the death
penalty.

Not surprisingly, many of the proposed reforms are designed to reduce the possibility of executing the innocent. These
reforms risk legitimating in the Weberian sense, because they might foster an unjustified confidence in our ability to

avoid such errors. Take, for example, the proposal to raise the burden of proof in a capital case from "beyond a reasonable doubt" to "beyond any
doubt." While it is true that standards of proof can and do matter throughout the law, it is also literally true that no verdict is "beyond any doubt," especially when,
as Ohio's proposal would have it, that standard would apply to the ultimate question whether aggravating factors outweigh mitigating factors. This new standard of
review might in fact encourage a level of care not already present in capital deliberations, but more likely it will be proclaimed by supporters of the death penalty as
significant insurance against error (and indeed might chill later decisionmakers from fairly second-guessing the jury's conclusions).

Another potentially legitimating reform, and perhaps currently the most popular proposal nationwide, concerns DNA testing. It goes without saying that prosecutors
should not destroy (and should be required to maintain and test) potentially exculpatory physical evidence in capital cases. But this reform is of extremely limited
applicability, because actual innocence will be provable based on the presence of DNA at the crime scene for few capital crimes (apart from those involving rape,
and not even all of those). However, the proponents of DNA reforms and the general public seem to overestimate wildly the extent of the safety net such reforms
can provide against wrongful convictions. More generally, DNA evidence at most will establish an offender's guilt or innocence but often will tell us little about
whether a particular defendant should receive the death penalty. Like the "beyond all doubt" reform, DNA preservation and testing reforms send a message of
certainty that does not correspond to the actual reliability they can plausibly secure.

Other reforms
might legitimate because they are precisely intended to quell public criticism while
preserving the objectionable practice that the reform purports to address . In Texas, for example, prosecutors were
highly influential in shaping legislation that would have exempted persons with mental retardation from the death penalty. Under the proposed law, the
determination of whether an offender has mental retardation would not be made before trial or by a judge, but by the jury after it has concluded that the
defendant should be put to death. 21 The transparent goals of this proposal were to ensure that the factual question of whether an offender is mentally retarded
would be clouded by the jury's moral outrage toward the crime and to encourage a form of jury nullification. At the same time, the message to the public at large
would have been that Texas does not allow for the execution of persons with mental retardation, even if, as a [*424] practical matter, such persons would not have
been protected. 22

The second form of legitimation, which was implicated to a lesser degree by judicial reform, is the legitimation inherent in every kind of incremental change. That is,
even when reform does not induce a false or exaggerated belief in the progress being made, it will
always induce at least some satisfaction in the real improvements achieved, and thus, will make people
more comfortable than they otherwise would be with the underlying practice, thereby dissipating
continued scrutiny of the death penalty and energy toward abolition . This effect might better be called "entrenchment"
rather than "legitimation." Noting entrenchment effects is a familiar leftist critique of all plans for incremental reform, particularly in the legal academy where the
"legal process" school is often pitted against the school of "critical legal theory" in such debates. Versions of this concern have been raised in many other contexts,
such as the racial equality, feminist, and labor rights movements, to name just a few.

In other words, to
ask whether abolitionists should support legislative reform of the death penalty is to ask
whether any real improvement that might be achieved in the fairness, reliability, humanity, or scope of
our system of capital punishment outweighs the potential legitimating or entrenching effect of such
reforms. We thus mean to raise the very real fear that reform of capital punishment and its abolition do not lie along
the same track; rather, we worry that reform may actually lead us away from abolition, toward a future where
the death penalty remains a stable and accepted part of our criminal justice system .
While we feel that it is critically important to voice this fear and at least raise the question whether abolitionists should support legislative reform of the death
penalty, we find it difficult, and not even particularly helpful, to try to answer this question absolutely in the abstract. After all, any answer must depend on precisely
what is on the table in the way of reform. Only then can the potential for real change be weighed against the likelihood of legitimation and entrenchment. Thus, our
more particular project, in addition to simply raising the possibility that reform might be the enemy of abolition, is to try to assess whether all reforms are created
equal in terms of their likely legitimating or entrenching effect. We suspect that they are not, and we propose that it is a worthwhile project for abolitionists to look
for and to worry about the possible legitimating effects of particular reforms and also to try to identify reforms that might counter entrenchment by creating
continued opportunities for critical scrutiny of capital punishment.

Reform would only be worth risking if the plan wasn’t an option

Steiker & Steiker, 02 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M. “Should Abolitionists Support Legislative "Reform" of the Death Penalty?”, 63 Ohio St. L.J.
417, Nexis Uni via Umich Libraries, JMP)

A second global critique might attack a different premise of our project. Our [*431] general argument
that we should attend to legitimating and entrenching effects of death penalty reform is premised on
the idea that abolition is possible in the foreseeable future. If one thought that complete abolition of
capital punishment is not now and, in the absence of profound political change, never will be a realistic
possibility in the United States, the legitimating and entrenching effects of reform would be of only
academic interest. Under these circumstances, it simply would not be a question whether abolitionists
should support legislative reform of capital punishment. Rather, the only question would be which
reforms to support, and that question would be answered without reference to the problems of
legitimation and entrenchment. Our premise that abolition is possible, and more possible now than at
any other time since Furman, is untestable, but it receives some small support from the growing
discomfort our country is facing as the rest of the Western industrialized world both abjures the death
penalty and puts pressure on the United States to either abandon the practice or forego its leadership
role in areas such as human rights. 39
Other Counterplan Answers
 AT: CP Congress

Only judicial action or constitutional amendment can solve

Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

However, there are many counter-arguments to this theory. For instance, in the United States, the
judiciary may present the only means through which to completely abolish the death penalty. As a
nation consisting of fifty separate states and the federal government, the only way to completely abolish
the death penalty in all states, other than through the Supreme Court, would be to add an amendment
to the Constitution abolishing the death penalty. This is an improbable action. Other than this, the
legislatures of every jurisdiction would have to debate and analyze the need for the death penalty,
which could be a very time-consuming, exhaustive solution, not to mention the fact that certain states,
unless forced, are unlikely to ever abolish the death penalty. 509 [*617]
 AT: CP Constitutional Convention – Constitutional Rollback

Constitutional convention triggers roll back of other constitutional values – including

basis for citizenship
Coleman, 18 --- Professor of the Practice of Law, Duke University (James E, DUKE JOURNAL OF
CONSTITUTIONAL LAW & PUBLIC POLICY, “ONE WAY OR ANOTHER THE DEATH PENALTY WILL BE
ABOLISHED, BUT ONLY AFTER THE PUBLIC NO LONGER HAS CONFIDENCE IN ITS USE,”
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1142&context=djclpp, accessed on
4/21/2020, JMP)

The other route for an amendment to abolish the death penalty that Professor Knake mentions, a
constitutional convention called by twothirds of the states, while perhaps politically more feasible, is by
magnitudes more problematic. Such a gathering more likely would be a vehicle to undermine other
more important constitutional values than it would be a viable vehicle to abolish the death penalty.
Given the current anemic state of the death penalty, risking an amendment to change the basis for
American citizenship, for example, is far too high a price to pay for a mere chance to abolish the death
penalty. Moreover, even if the convention adopted an amendment to abolish the death penalty, three-
fourths of the states still would have to ratify it. Such a dramatic political turnaround from where we are
today would be biblical.
 AT: CP Constitutional Amendment – Judicial Action Better

Political and cultural barriers make judicial action superior

Coleman, 18 --- Professor of the Practice of Law, Duke University (James E, DUKE JOURNAL OF
CONSTITUTIONAL LAW & PUBLIC POLICY, “ONE WAY OR ANOTHER THE DEATH PENALTY WILL BE
ABOLISHED, BUT ONLY AFTER THE PUBLIC NO LONGER HAS CONFIDENCE IN ITS USE,”
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1142&context=djclpp, accessed on
4/21/2020, JMP)

During roughly the same period that these things were happening, more than 150 innocent individuals
sentenced to death have been exonerated. Although Professor Knake concedes that the Supreme Court
may have lost some of its appetite for capital punishment, she concludes that “permanent abolishment
is unlikely to occur there.”3 Consequently, Professor Knake suggests this may be a good time to consider
a constitutional amendment to abolish capital punishment. I disagree.

Relying on many of the same factors as Professor Knake, Justice Breyer concluded in 2015 that it was,
“highly likely that the death penalty violates the Eighth Amendment.”4 Other judges agree.5 This
represents a small but significant movement toward the inevitable conclusion that the death penalty
has “cease[d] to be a credible deterrent or measurably to contribute to any other end of punishment in
the criminal justice system.”6 At this point, “we are left with a judicial responsibility.”7

The political and cultural obstacles to amending the Constitution to abolish the death penalty are
likely insurmountable. On the other hand, based on the principles underlying the Supreme Court’s
Eighth Amendment jurisprudence, a successful litigation campaign to abolish the death penalty is
imaginable. In the short term, however, whether one’s preferred abolitionist route is to amend the
Constitution or to litigate in the Supreme Court, the prerequisite for either to be successful is continued
erosion of public confidence in the death penalty.
Kritik Answers
 AT: K Reform – Permutation

The permutation is best --- incremental reform is useful as long as it is tied to

transformational approaches --- overcomes co-option
Karakatsanis, 19 --- JD from Harvard Law, founder of Civil Rights Corps (11/9/2019, Alice Speri
interview of Alec Karakatsanis, “THE CRIMINAL JUSTICE SYSTEM IS NOT BROKEN. IT’S DOING WHAT IT
WAS DESIGNED TO DO,” https://theintercept.com/2019/11/09/criminal-justice-mass-incarceration-
book/?comments=1, accessed on 3/17/20, JMP)
ALEC KARAKATSANIS’S “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student.
Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system. Litigated
with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal
system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that
we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while
“Usual Cruelty” is ultimately an
abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons
aren’t the default response to all social problems , Karakatsanis is also keenly aware of how lawyers can
use the law’s tools to fight the law’s harm. At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging
systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized
and entrenched” they barely give us pause.

This interview was edited for length and clarity.

Who is this book for?

Much of the book is written for people who don’t know a lot about our criminal punishment bureaucracy and who generally care about issues of social justice, but
don’t know much about how the criminal system works, and especially all the pain that it constantly inflicts for no good reason. But it also has a lot of deep analysis
and reflection for people who have been working in the system, whether they’re public defenders or social workers or prosecutors or judges.

It’s really meant to touch anyone who’s worked in the system and get them to reevaluate, come to the system with fresh eyes and see, here’s what we’ve been
doing to people and their families and their bodies. Let’s ask ourselves some really hard questions about why we’ve been inflicting so much pain. This
book is
also meant to be an acknowledgement of the real failure of lawyers in our vision, in our understanding of politics,
our understanding of organizing, our understanding of power, the way that we’ve tried to use the legal
system to change what is really a problem of capitalism and white supremacy in power. And it’s meant to reach
out and say we actually need a really different approach: a mass power-building movement that lawyers

should not be leading.

Some people go to law school with these grand ideas about changing the world. But your book makes a strong case that it’s not through lawyering that things are
going to change.

The American legal system has never been an institution of radical social change. To the contrary, it has been an instrument of ruling class oppression. The legal
system, from its founding, was about preserving distributions of wealth and property and white supremacy. If you go back and read old Supreme Court cases, you’ll
see in every era the Supreme Court and the federal courts and the state courts are reproducing the sort of power dynamics of that era into what’s called legal
decision-making, and passing it off as legal reasoning.

We need to build a movement that changes the power dynamics so that our society demands that our legal system create different rules. The best example of this
might be Brown v. Board of Education, maybe the most celebrated legal decision in American Supreme Court history. Sixty years after Brown, you have schools that
are just as segregated, if not more segregated, in some parts of the country than they were before Brown. Why? Because if
you don’t attack the
underlying systems of oppression that lead to a problem, a court ruling isn’t going to solve them .
A contrary example might be same-sex marriage. Very smart lawyers brought those cases 40 years ago, and they essentially lost everywhere, including in the U.S.
Supreme Court. Then years after that, other lawyers, and actually some of the same lawyers, using the same words, challenged same-sex marriage bans again. This
time, they prevailed. It wasn’t because the 14th Amendment changed, or because they became better lawyers. It was because there had been a movement in our
society that changed the way we think about same-sex marriage. What we in the criminal system need to understand is that we need to be part of a social
movement that changes the way we think about human caging. And until we are part of that movement, I don’t suspect that the courts are fundamentally going to
alter this architecture of mass incarceration.
You write about the need for lawyers to remain “human” and to find creative ways to re-sensitize themselves. How
do you stay human when
working in a system that is designed to dehumanize daily, and on a mass scale?

We often find ourselves using the language of a bureaucracy as opposed to the language of humanity
when we’re in court. The things that we write, the arguments that we make, it’s almost like reading from police reports; we use words like “suspect,”
“defendant.” And we use propagandistic terms like the “Department of Justice” or the “criminal justice system.” We even use the word “hold” to describe someone
who’s in a cage, which is such a strange thing to say. You hold someone you love; holding is a term of care. Or we use terms like “law enforcement,” which make it
seem like we enforce all laws against all people, when in fact law enforcement in this country just enforces some laws against some people. The language that we
use is really important.

As a lawyer, you can also change the narratives that are presented in a courtroom. I would always ask my clients to be unshackled while in court, and I would ask
the U.S. marshals to allow my clients’ children to come hug them before sentencing. Little acts like these may not be significant in the broader sense, in the sense
that they’re not taking down capitalism or white supremacy, but they change the way that this mass assembly-line bureaucracy is able to process human beings: It
slows it down, it makes everybody a little bit more sensitized to the cruelty that they’re about to inflict on a child or on a parent, on a human being.

I found that the sentences started to get lower when we did those things. I think lawyers can be doing this throughout every aspect of a case: help to create space
for their clients to tell their stories. Our punishment bureaucracy is only able to do what it’s doing because the pain that it’s causing has not been sufficiently
explored in the popular consciousness.

We prosecute and incarcerate so many people that it becomes impossible to give each a fair process, so we end up with shortcuts like the mass plea bargaining
system. You write that we created a system that would collapse were it to offer “too much justice.”

Anyone who observes court in the U.S. or works in the system understands that there is simply no way to process two million human beings from their families,
homes, jobs, communities and into cages without coming up with shortcuts at every single step in the process. It’s just a really significant bureaucratic achievement
to transfer that many people and their bodies and their lives into government-run cages. And to do that, the system basically has to ignore the main constitutional
rights that are provided for in the Bill of Rights, because those documents were not written with a world of mass incarceration in mind. In fact, they were written
precisely to avoid mass human caging.

You write about defendants appearing in court in Roxbury being made to stand behind glass cages — and people only realizing how dehumanizing that is when a
bunch of white baseball fans were arrested after the Red Sox won the World Series. Do we tolerate the cruelty of the system because of the people it usually
affects?

There is no way that much of what happens in the punishment bureaucracy would be tolerated if it were happening to people who looked different or had more
power. The idea of drug laws being enforced on Yale’s campus, for example, in the same way that they are enforced down the street in the rest of New Haven
would be laughable. And this goes for virtually any law you can think of. The way that law is enforced reflects distributions of power in our society. It’s the same way
that people are routinely arrested and jailed for street gambling, but it’s totally acceptable to gamble over international currencies and global supply of wheat, even
though gambling over the global supply of wheat has caused starvation for tens of millions of people. These same activities, depending on who’s doing them, are
seen as morally culpable or morally praiseworthy, even.

I think even those who don’t work closely with the criminal justice system have some sense, by now, that it actually doesn’t have much to do with justice. Why is it
that ideas like “the rule of law” and “justice” itself continue to wield incredible power?

I think that there are very powerful forces in our society that benefit from people having faith in what’s thought of as “the rule of law.” I always use that term in
quotes because it’s a joke. Those forces have invested a great deal into a kind of propaganda about what our legal system is about. We’re told that our legal system
is about public safety and human flourishing, but if you think that our legal system is really about creating a society of equality and justice and liberty and public
safety, all you have to do is look around to understand that it’s failing miserably at that. That’s why you hear so many people, from all over the spectrum, saying the
criminal justice system is “broken.”

But it’s only broken if you think that those are its purposes. If you actually think that its purpose is controlling certain populations, oppressing certain people,
conserving the hierarchies of wealth and power, then it’s actually functioning very well. And the people who’ve been running our criminal legal system for decades
aren’t stupid. They weren’t trying to do one thing but woefully failed, they were trying to do what the system has been doing, which is to keep certain people
controlled.

Which brings me to the question of criminal justice “reform.” What is wrong with criminal justice reform?

I think we are at a very dangerous moment in what’s called the criminal justice reform movement . There is some
popular energy, meaningful energy, to change the criminal punishment system, and the people who created and profited from the

punishment bureaucracy understand that and they’re trying to co-op that reform. What’s at stake now is
whether we will actually make big changes to dismantle mass incarceration, or whether we’ll make little
tiny tweaks that curb off some of its most grotesque flourishes but preserve the architecture of the
punishment bureaucracy and of mass human caging.
There are a lot of people with a lot at stake in this, whether it’s police and correctional unions or prosecutors and the elite class that benefits from keeping people
controlled, the private companies at every stage of the process — from those that make all of the handcuffs and the Tasers and the guns to the private probation
companies, the bail bond companies, the private prison companies, all of the companies that contract for health care and telephones and video calling in jails. And
of course, all of the defense lawyers and judges and probation officers. It’s a massive bureaucracy, and what do bureaucracies do? They try to expand and preserve
themselves.

I’m really interested in reorienting our discussion about what our criminal punishment system should look like to the question of whether we should have one, and
whether it should look anything like what we have now, and how do we build the power that’s necessary to demand that our society do something drastically
different.

Can an abolitionist approach and a reformist approach coexist? What do you make of the whole “progressive prosecutor”
moment, for instance?

I’m all for reducing the pain that our current system has caused. Many of the cases that I work on can
only be characterized as incremental: We win a case in Houston, and we get 12,000 people out of jail. But there are still tens of thousands of
people being jailed every year in Houston; it’s not like we’ve abolished the punishment bureaucracy there. All the work we do, even the most

successful work, is in a sense incremental.

I think the real question is, is

there a theory for how the incremental work that you’re doing is part of a broader
movement for much more radical change? If you’re just doing incremental work to do incremental work,
and if that incremental work sucks energy out of a movement, or isn’t done in strategic alignment with a
movement and just stops there, then that is troubling. But if it’s part of a strategy for actually building
power step after step and each increment is actually building more power for the next fight, then I
think it’s worth doing.
Is the reform that you’re proposing giving more resources to the punishment bureaucracy, or is it taking resources from the punishment bureaucracy and giving
them to communities? That’s why, for example, you always need to oppose hiring more police officers, giving them more money for body cameras, increasing the
budgets even of “progressive” prosecutor offices. We need to shrink all of these systems, and we need to invest in noncarceral, community-based mutual aid and
empowerment solutions. The kinds of reforms that are offered by most punishment bureaucrats all over the country are mistaken reforms.

I think the reason abolition sounds so strange to many people is that those people are envisioning a
society that looks exactly like our current society, just with no police and prisons and jails — and that
does seem ridiculous because our society creates so much desperation and violence. But in a society
that is tackling things like white supremacy, economic deprivation, toxic masculinity, and that is
providing connections between people, and where communities are responsible for each other, I
actually don’t think it would be weird at all. You wouldn’t even need the things that we now think of
as elemental parts of our society, like the local jail.

***note when prepping file – this evidence should not be read if the 1ac includes
these arguments: abolition will save resources or that life-in-prison is an effective
substitute

Permutation resolves the link --- our defense of death penalty abolition can be
expanded to encompass the larger system of punishment
Gullapalli, 20 --- senior legal counsel at The Justice Collaborative, spent several years as a human
rights advocate, public defender, and journalist in the U.S. and India (1/31/2020, Vaidya, “THE DEATH
PENALTY IS PART OF A LARGER SYSTEM OF PUNISHMENT,” https://theappeal.org/the-death-penalty-is-
part-of-a-larger-system-of-punishment/, accessed on 3/24/2020, JMP)
Colorado’s Senate took a critical vote on Thursday that put the state on the pathway to abolishing the
death penalty. The body voted 19-15 in favor of a bill to repeal capital punishment. Around 11:30 a.m.
local time today, Denver Post reporter Alex Burness wrote on Twitter to report further progress: “The
Colorado Senate has given final passage to the bill to repeal the death penalty. This was expected, but
still a huge moment. Colorado may now be just weeks away from becoming the 22nd state to repeal the
death penalty.”

The expected victory in Colorado is a victory for death penalty opponents everywhere and other
Western states may soon follow, as Liliana Segura and Jordan Smith of The Intercept chronicled last
year. What is also crucial, as the number of people on death row shrinks and the number of people
serving life sentences has ballooned, is to think about how a victory over capital punishment can either
serve or undermine future victories over the larger system of punishment .

Colorado’s death row is representative of capital punishment nationwide in two ways. First, the three
men on death row, all Black, were from the same county, products even, of the same high school in the
city of Aurora. In this way, Colorado is emblematic of the hyperlocal nature of the death penalty today—
the product, overwhelmingly, of a small number of outlier jurisdictions and prosecutors rather than of
geographically broad use of the penalty.

Second, capital punishment has been on the wane in the state for a long time. The last execution was in
1997. Nationwide, there were fewer than 50 death sentences and fewer than 30 executions last year,
for the fifth year in a row, according to the Death Penalty Information Center.

But even as its reach contracts, the death penalty continues to command particular attention in U.S.
jurisprudence, national media attention, and international coverage of the U.S. legal system. The
Supreme Court has said death is different and developed a jurisprudence that set capital cases apart
from all others, with heightened (although still insufficient) protections. Conversations about the death
penalty also have a particular moral valence, focused on the ethics of the taking of a life.

But that focus and that moral language can and should encompass the broader system of punishment.
As we celebrate every single life that is not ended in an executioner’s chair, we can draw attention to
the thousands of people in prison who will die far from their homes and families, and decades after the
acts for which they were condemned to death. The death penalty is gruesome in how it dismisses the
humanity of the condemned person and diminishes the humanity of those imposing and carrying out
those sentences. But many other aspects of our system do the same things.

In the past month alone, 13 people in Mississippi state prisons have died. Jamelle Bouie of the New York
Times wrote today about the ways in which that violence is coded into the DNA of the state’s prisons
and the multiple failed attempts at reforms. “But no amount of change has been able to break the cycle
of brutality,” he writes. “And why would it? The history of Parchman is a prime example of how
dehumanization and neglect are intrinsic to separating people from their freedom.”

Many of the reasons to oppose capital punishment are reasons to end other harsh punishments: a belief
in the inherent dignity of every human being, a belief that the state should not take a life even in
exchange for a life, an understanding that the system of punishment we have is premised on racism and
delivers on it, or an acknowledgment that our system is riddled with errors.
But there are other arguments against the death penalty that may entrench the larger system of
punishment. These are the arguments that say the death penalty is too expensive because of the greater
protections afforded those charged with capital crimes, when those greater protections should be
extended to more people. Or the arguments that the death penalty should be done away with in favor
of life in prison without hope of release. Ben Miller and Daniel Harawa wrote in Slate this month,
speaking of the Democratic candidates whose (historical) opposition to the death penalty relies on an
embrace of life in prison sentences: “We will solve nothing if we think the answer is to substitute one
cruel punishment with another.”

This pairing of opposition to capital punishment with an embrace of life without parole sentences bears
some responsibility for where we are today, with over 53,000 people sentenced to die in prison. In 2015,
Ashley Nellis of the Sentencing Project and an author of the “The Meaning of Life: The Case for
Abolishing Life Sentences,” explored the tensions between death penalty abolition work and efforts to
end extreme sentencing in a law review article. The “rapid rise in LWOP [life without parole] sentences”
she wrote, “can partly be attributed to a desire for a reliable, terminal punishment to replace the death
penalty after it was declared unconstitutional in 1972.” But, Nellis said, it does not have to be
this way: “Strategies to abolish the death penalty can be improved upon by
viewing the successful elimination of the death penalty as just the first step on
the road to the reformation of extreme sentences altogether . In this view, the
efforts to eliminate the death penalty are not in conflict with efforts to
eliminate LWOP.”
What is important, she wrote, was not just whether the death penalty is abolished
but why. “The reasons why American society will eventually decide to eliminate
the death penalty as a punishment are as important as the outcome—maybe
more so.”
Kenneth Hartman, sentenced to life without parole in California, wrote in 2016: “Why not abolish the
death penalty and life without the chance of parole? The assumption would be that it is possible for
human beings to become better than their worst act.” Hartman described his own sentence as just a
different kind of death: “Though I will never be strapped down onto a gurney with life-stopping drugs
pumped into my veins, be assured I have already begun the slow drip of my execution [which] won’t
come to full effect for 50, maybe 60 years.”
 AT: K Reform – Plan Best Starting Point

Benefits of aff outweighs the link --- AND abolitionists would help resolve other
criminal justice problems post the plan
Steiker & Steiker, 02 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M. “Should Abolitionists Support Legislative "Reform" of the Death Penalty?”, 63 Ohio St. L.J.
417, Nexis Uni via Umich Libraries, JMP)

Finally, a different sort of critique from the left might claim that we do not take our legitimation
argument far enough or seriously enough. If we actually achieved the ultimate goal that we set for
ourselves, the wholesale abolition of capital punishment, we would only legitimate the rest of our
diseased and discriminatory criminal justice system. Capital punishment is the only thing that keeps
public attention focused on the abuses of our criminal justice process; eliminate the death penalty and
the problems of incompetent lawyers, disparate racial impact, and the convictions of the innocent will
sink from public view and concern. This last critique is both the strongest and the weakest. It is
powerfully true that the death penalty focuses public scrutiny on our deeply flawed criminal justice
system, and that it will be harder to get people to notice or care about injustice in the system without
the dramatic fear of the execution of the innocent. However, the most common response of those
concerned by problems in the capital trial and sentencing process is not to propose across-the-board
reforms of the process as whole, but rather to target capital cases, often at the expense of non-capital
cases. Moreover, even if some of the reforms brought about by concern over capital cases help to
promote criminal justice in non-capital cases as well, the price of tolerating executions is simply too
high. There are other ways of promoting reform of the criminal justice process to which abolitionists,
or at least some of them, would turn if the death penalty were abolished.
 AT: K Reform – AT: Life in Prison Links

The permutation solves --- abolition can empirically be a starting point for reviewing
all extreme sentences
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

D. Promotion of LWOP as a Replacement for the Death Penalty

Executions have declined by over 50% in the past decade in large part due to successes in legislation,
litigation, and public education that have narrowed or eliminated the death penalty in certain states or
in certain instances (e.g., the mentally handicapped, juveniles). 49 The steadily falling homicide rate has
also contributed to the decline in executions. Without these successes, consideration of the
appropriateness of LWOP would not be possible. Death penalty abolitionist work opens the door to a
broader review of all extreme sentences, starting with LWOP. Just as the death penalty movement has
leaned on LWOP to advance its reforms, so too has the LWOP abolition movement benefitted from the
growing prominence of death penalty discussions in order to gain momentum in its own reforms.

The plan can be the first step in challenging extreme sentences altogether
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

The declining use of executions in the United States shows that as a practice it is slowly falling out of
favor in growing proportions of the country. 5 The momentum of death penalty abolition and reform
work can be attributed largely to a combination of the accomplishments of the innocence movement,
the demonstrated exorbitant cost of the sentence, and the lengthy appeals process. 6 It has become
increasingly difficult to justify the death penalty's continued use in spite of differing views one may hold
on punishment more generally. Those who raise concerns about efficacy now join with those who
oppose the death penalty on moral grounds to create a sizable, diverse portion of the American public.
The strategies utilized by the death penalty abolition campaign have broadened its support network by
reaching out to atypical allies and have succeeded in making death sentences less palatable to a wider
audience. 7 Over the same period of time, the sentences of life without possibility of parole ("LWOP")
have soared. 8

Strategies to abolish the death penalty can be improved upon by viewing the successful elimination of
the death penalty as just the first step on the road to the reformation of extreme sentences
altogether. In this view, the efforts to eliminate the death penalty are not in conflict with efforts to
eliminate LWOP. And while LWOP is certainly not the [*441] only sanction in need of reform, it is the
most logical place to begin because of the troubling qualities it shares with the death penalty in
America.
Topicality Answers
 AT: T – CJR

Ending death penalty has to be a key component of any criminal justice reform
O'Malley, 15 --- former governor of Maryland and mayor of Baltimore (11/6/2015, Martin, “Why the
death penalty needs to go,” https://www.cnn.com/2015/11/06/opinions/omalley-capital-
punishment/index.html, accessed on 3/11/2020, JMP)
(CNN)On Friday night, South Carolina will host a Democratic presidential forum. And while the field of candidates may now be down to three,
there are still many issues confronting this country that need to be discussed. These are critical issues that have not received the attention they
deserve, but raise questions that go right to the heart of who we are as a people.

It would, of course, be a glaring oversight to ignore the struggles South Carolina has faced over criminal justice reform -- challenges we as a
country are all grappling with. However, there is a particular, fundamental flaw in our justice system that other candidates appear to lack the
commitment to address -- our failed reliance on the death penalty. This is a tragedy both because it is a racially biased punishment, and also
ineffective in deterring crime.

Our nation was founded not on fear and retribution. It was born from higher things: freedom, justice, human dignity,
and equal rights before the law. And so we must ask ourselves: Are these principles compatible with the "civil"
taking of human life? Are these principles compatible with the very real risk of erroneously taking the life of an innocent neighbor?
Can we credibly accept any criminal justice plan that does not commit to ending the death penalty for
good?

I believe the answer is clearly no. It is time that we, as a nation, abolish the death penalty for good.
Our nation's legacy of slavery and racial injustice find continued offense in our use of the death penalty. Our death row population is more than
40% black -- nearly three times the proportion of the general population.

Reforming our criminal justice system to save and redeem more lives is not as simple as changing just one thing. But we should be able to admit
that we must do more of what works to save lives, and we should stop doing things that do not work.

In study after study, in state after state, we see the same distressing pattern. The death penalty does not deter crime. It does not even save us
money. In fact, the death penalty actually costs states more than a life sentence does, because of an endless appeals process that tears at the
hearts of victims' surviving family members.

The vast majority of executions on this planet take place in just a handful of countries: Iran, Iraq, Saudi Arabia, Yemen, North Korea, China and
the United States of America. Our country does not belong in the company of these nations on matters of criminal justice and equal rights
under the law.

The longer we continue to support this expensive and failed policy, the more we fall short of our values
as a people -- and the more money we waste that could be spent actually saving lives.
My own personal and longstanding opposition to the death penalty is shaped by deep belief in the principles of our nation and by my faith. I
don't agree with the official Church position on every public issue, but I believe that perpetuating the death penalty strikes at the heart of the
nation we should aspire to be -- one that's more just.

The reality, though, is that we will not abolish the death penalty in America by following polls. It requires leaders who are willing to call us
forward based on the deepest principles we share as a nation.

A policy that is as shameful and immoral as the death penalty is not about states' rights -- it is about
human rights.
Secretary Hillary Clinton's failed logic on this issue -- continuing to support the death penalty as a state right that should not be abolished --
rings all too familiar to me. My advisers told me, as I took on the death penalty during my first year as governor in Maryland, that I was
misguided. They encouraged me not to take up this cause, to instead focus on issues that poll better and are more popular.
I didn't listen because my faith and my own experience taught me otherwise. As mayor of Baltimore, I understood that every minute and dollar
spent on the death penalty could have been used to protect and redeem lives. As a prosecutor, I saw that the death penalty's racial legacy
could not be excused or explained away -- and that too many innocent lives were being taken by this profoundly flawed practice.

So I decided to fight for the death penalty's repeal. We didn't succeed the first time -- or the second. But after four years of making our case to
the people of Maryland, we finally banned the death penalty on our third try.

Now, in this election, our leaders should be honest with themselves -- and with voters. The
death penalty is a failed and immoral
policy. But while we can admit our mistake and work to become a more perfect nation, we need leaders who have the
courage to act. We must repeal the death penalty under federal statutes , including the 1994 crime bill, and every
candidate for president should say where they stand on this issue.

The choice is really ours. We know what works. We know what does not work. And we know that the way forward is always found through
greater respect for the human dignity of all.
Death Penalty Neg
Case
 1nc New Federal Executions Will Get Tied Up In Courts

New federal executions will get tied up in court over injections

Czajka, 19 --- graduate of Northwestern University's Medill School of Journalism (Kelley, 7/25/19,
“HOW DOES THE FEDERAL DEATH PENALTY WORK? The federal government has announced plans to
resume capital punishment. But the order will likely face challenges,” https://psmag.com/news/how-
does-the-federal-death-penalty-work, accessed on 3/13/2020, JMP)

ONGOING CHALLENGES TO LETHAL INJECTION PROTOCOL WILL LIKELY POSE A BARRIER

In his order, Barr directs the federal government to use a new protocol with just one drug,
pentobarbital, rather than the three-drug cocktail the government formerly used. But BuzzFeed News
reports that the new protocol will immediately end up in court and likely delay the scheduled
executions, since legal injections have been effectively suspended by a lawsuit—pending since 2005 and
on hold since 2011—that challenges the U.S. government's execution protocol.

"Saying that you are going to adopt a protocol is not the same thing as having a protocol properly
adopted through the required administrative procedures," Robert Dunham, the executive director of
the Death Penalty Information Center, told CNN.
 --- EXT: New Executions Tied Up in Courts

Federal executions are still being held up by pending litigation

de Vogue, 4/7/20 --- CNN Supreme Court Reporter (Ariane, “Appeals court wipes away lower court
ruling blocking federal executions,” https://www.cnn.com/2020/04/07/politics/death-penalty-appeals-
court/index.html, accessed on 4/15/2020, JMP)

Washington (CNN)A federal appeals court wiped away a lower court opinion Tuesday that blocked the
federal government from executing federal inmates on death row.

The 2-1 ruling is a win for the Department of Justice, but the appeals court noted that there are still
other issues that need resolution, suggesting that the executions will remain on hold while litigation
continues.

The case comes after the Trump administration announced last July that it would reinstate the federal
death penalty after a nearly two-decade lapse, and the two judges in the majority -- Gregory Katsas and
Neomi Rao -- were both appointed by President Donald Trump.

Attorney General William Barr's move to reinstate the federal death penalty underscored the stark law
and order philosophy of the Trump administration. At the time, he directed the head of the Bureau of
Prisons to execute five inmates he said represented the "worst criminals."

The Bureau of Prisons adopted a new lethal injection protocol consisting of a single drug, pentobarbital.

The federal inmates involved in the appeal are Daniel Lewis Lee, who killed a family of three, including
an 8-year-old girl; Wesley Ira Purkey, who raped and murdered a 16-year-old girl; Alfred Bourgeois, who
tortured and killed his own 2-year-old daughter; and Dustin Lee Honken, who shot and killed five
people, including two young girls.

A district judge blocked the executions from going forward, holding that the protocol conflicts with the
Federal Death Penalty Act, which requires adherence to a state's method of execution. US District Judge
Tanya S. Chutkan of the District of Columbia Circuit put the executions on hold, ruling that a delay would
not hurt the government, particularly because it has waited several years to announce a new protocol.

Chutkan said the public interest is not served by "executing individuals before they have had the
opportunity to avail themselves of legitimate procedures to challenge the legality of their executions."

Lawyers for the inmates argued that the government is trying to push the issue forward even though it
took eight years to create a new execution protocol.

"From the moment it announced the protocol on July 25, 2019, the government has rushed the process
in order to carry out executions without meaningful judicial review of the legality and constitutionality
of the new execution procedures," said Cate Stetson, a lawyer for the inmates.

In the opinion, the appeals court nodded to the timeline.

"We do share the government's concern about further delay from multiple rounds of litigation," the
court held, "But the government did not seek immediate resolution of all the plaintiffs' claims, including
the constitutional claims and the claim that the protocol and addendum are arbitrary and capricious
under the APA," the court said and emphasized that "several claims" are pending at the lower court
level.

"The one thing all the judges agree on is that there are other significant factual and legal issues that
the district court still needs to resolve," said Robert Dunham of the Death Penalty Information Center.

Federal executions have been tied up for years in litigation over the drugs used and
there will be even more litigation over Barr’s new suggested protocol
Lynch, 12/2/19 (Sarah N., “Trump administration asks top court to allow it to resume federal
executions,” https://www.reuters.com/article/us-usa-court-deathpenalty/trump-administration-asks-
top-court-to-allow-it-to-resume-federal-executions-idUSKBN1Y628Q, accessed on 4/15/2020, JMP) ***
Tanya Chutkan is a U.S. District Judge

Most executions in the United States have been carried out by individual states, although an increasing
number of them have stopping using the death penalty.

The last federal execution took place in 2003. Since then, protracted litigation over the drugs
historically used in lethal injection executions prevented the government from continuing the
practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling.

“The courts have made clear that the government cannot rush executions in order to avoid judicial
review of the legality and constitutionality of its new execution procedure,” Nolan said.

DRUG PROTOCOL

The lawsuits challenging federal lethal injections, the first of which was filed in 2005, challenged the
protocol on the grounds that it violated the U.S. Constitution’s Eighth Amendment ban on cruel and
unusual punishment by carrying a risk of severe pain.

The lawsuits also said the protocol violated a federal law called the Administrative Procedure Act
because it was written in secret without public input.

Under Trump’s Democratic predecessor, Barack Obama, the Justice Department abandoned its previous
three-drug protocol because of a shortage of one of them, an anesthetic called sodium thiopental. The
legal fight fell dormant during Obama’s tenure but was revived in July.

Barr scheduled the executions of five inmates for December and January and unveiled a protocol that
involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the
Federal Death Penalty Act requires the federal government to follow the “manner” of execution
prescribed in the state where an inmate was convicted.

The law, as a result, prevents the federal government from creating a single nationwide execution
protocol, they argued.
Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol
violated the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas of murdering a family of three, was
scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9.

A fifth inmate whom Barr had ordered executed, Lezmond Mitchell, won a stay of execution from
another federal appeals court in October.
 1nc Death Penalty Declining

Even with federal reintroduction, the death is still on a major decline globally and
nationally because of state action
Follet, 19 --- MA in Foreign Affairs from the University of Virginia (7/29/19, Chelsea, “Despite Federal
Return, Capital Punishment Is Dying Out,” https://www.cato.org/blog/despite-federal-return-capital-
punishment-dying-out, accessed on 3/13/20, JMP)

The U.S. federal government recently ordered the death penalty to be reinstated for the first time in
sixteen years and has scheduled the execution of five death row inmates. This policy change goes
against the widespread trend toward fewer executions.

Twenty-one U.S. states, plus the District of Columbia, have totally abolished the death penalty for all
crimes. Seven of those states abolished the practice in my lifetime. New Hampshire just officially
abolished it in 2019.

In many U.S. states where executions are still legal, none have been carried out for years and the law
is mainly symbolic. Kansas, for example, has not executed any prisoners in over forty years. The U.S.
federal government, similarly, never officially abolished the death penalty but has had a moratorium on
the practice since 2004 – a moratorium ended by the new policy ordered by Attorney General William
Barr.

Harvard University’s Steven Pinker has chronicled the decline of capital punishment in his book, The
Better Angels of Our Nature. He estimated that the execution rate in the United States has been falling
for four centuries, from nearly 3.5 executions per 100,000 people in the 17th century. His graph is
pictured below.

[image of graph omitted]

Trends against capital punishment can also be observed abroad as well. Consider Europe. Prior to the
Enlightenment, European nations once used the death penalty for a vast number of crimes. England, for
example, had 222 capital offenses in its legal system well into the 18th century. Until the early 19th
century, it deemed many minor crimes, such as stealing anything worth more than four dollars in
today’s currency, to be worthy of execution. As the values of the Enlightenment spread, that number of
capital offenses shrunk to four by the middle of the 19th century. Today, in Europe, capital punishment
remains legal only in Belarus and Russia.

The change extends beyond Europe. This year, Malaysia abolished mandatory capital punishment. Last
year, Burkina Faso abolished the death penalty in its new penal code. Moreover, Gambia and Malaysia
declared an official moratorium on executions. Last year, Amnesty International noted, at least 690
executions took place in 20 countries. That number was 31 percent lower than in 2017. The vast
majority of recorded executions happen in Iran, Saudi Arabia, Vietnam and Iraq.

Then there are China and North Korea. The two communist countries execute more people than other
countries and may well execute more people individually than the rest of the world combined.
Unfortunately, there are no reliable statistics for those secretive societies.
The move to reinstate capital punishment federally in the United States represents a reversal after more
than a decade-long hiatus in the federal use of capital punishment. But opponents of the practice can
take heart in the successful abolition of the death penalty in an increasing number of U.S. states and
countries around the world.
 --- EXT: Death Penalty Decreasing

Death penalty is on the decline --- only legal in some states and number of executions
decreasing
Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

C. Studies on Capital Punishment in the United States

Numerous studies show not only that capital punishment does not have its desired deterrent effect, but
that it is applied disproportionately against minorities and--disturbingly--to innocent individuals. This
has led to a significant decrease in death sentences and executions. As the Death Penalty Information
Center recently reported, "thirty-six states have either abolished the death penalty, have executions
on hold, or have not carried out an execution in at least five years." 55 (Keep this number in mind; it
becomes significant in Part II of this essay, as we consider the likelihood of a constitutional amendment.)
Moreover, "[c]ontrary to the assumption that the death penalty is widely practiced across the country, it
is actually the domain of a small percentage of U.S. counties in a handful of states. . . . Only 2% of the
counties in the U.S. have been responsible for the majority of cases leading to executions since 1976."
56 Furthermore, even some of these counties have effectively eliminated the death penalty. Harris
County the county with the greatest number of executions historically, reduced that number to zero in
2017. 57

The reduction in death sentences and executions stems from volumes of data undermining the
legitimacy of capital punishment. Studies on race document that black defendants are more likely than
white defendants to receive the death penalty in similar cases, 58 and that cases involving white victims
are more likely to result in the death penalty than those involving black or Latino victims. 59 Data on
[*9] the financial costs show that death penalty cases are more expensive than imposing life
imprisonment. 60 Indeed, "[r]esearchers estimate that about four percent of those sentenced to death
are actually innocent," with documentation showing "a strong possibility that innocent individuals have
been executed." 61 Empirical studies similarly support the conclusion that no heightened deterrent
effect is achieved with capital punishment: "It is now widely accepted among top-flight empirical
scholars that not a single study credibly supports the view that capital punishment as administered
anywhere in the United States provides any added deterrent beyond that afforded by a sentence of life
imprisonment." 62 It is no wonder that newspaper editorial boards and scholars repeatedly call for the
death penalty's demise. 63
 1nc Supreme Court Will Eventually Act

***note when prepping file --- a longer version of this card is the solvency card for the
States CP.

Momentum at state level signals that the Supreme Court will eventually rule against
the death penalty
Stubbs, 19 --- director of the ACLU’s Capital Punishment Project (3/28/19, Cassy Stubbs, Jeremy Stahl
interviewer - Slate senior editor, “Is the Tide Finally Turning on the Death Penalty? The momentum
gained at the state level might be enough to break through on the federal level,”
https://slate.com/news-and-politics/2019/03/momentum-to-abolish-death-penalty-growing.html,
accesed on 4/5/2020, JMP)

You’re talking a lot about state-level action. Is that because action at the federal level is such a heavy
lift? For advocates of abolition, it seems to me that recent decisions from the Supreme Court may not
have been so inspiring. I’m talking about that recent case before the Supreme Court, where the court let
Domineque Ray be executed in Alabama despite being denied access to his imam, and the court
deciding not to rule on the religious discrimination question there.

There is a lot of movement in states and by state executives and state courts, and I think that’s in part
because we haven’t seen enough movement from the U.S. Supreme Court yet. But that does not mean
that I am in any way giving up on federal courts, or giving up on the U.S. Supreme Court abolishing the
death penalty. I do think that is coming.

The Jones case was this case out of California where the federal district court found the death penalty in
California unconstitutional because of the incredibly broken nature of California’s death penalty and the
delays there—it’s just absolutely arbitrary who might get executed in California. At the same time, there
was a federal court in New Hampshire that ruled the death penalty unconstitutional a number of years
ago. Those cases ultimately did not stand, but the merits of those cases did not actually reach the
Supreme Court.

I think that when you look at the benchmarks that the Supreme Court has set forward for whether or
not the death penalty today is constitutional under the Eighth Amendment, the evolving standard of
decency says let’s look at what’s happening in the states . Let’s look at the number of executions, let’s
look at the trends, let’s look at the new death sentences. All of those are moving in the same direction.
It is just an incredible downward-sloping number.

We certainly would not have predicted where we are today in terms of the low number of new death
sentences, the low number of executions each year. There is an incredible showing, I think, under the
Eighth Amendment, and it is just a matter of time before the Supreme Court is going to take one of
these cases.
I think if you look at the Supreme Court’s record, it has issued a number of opinions where we’ve seen
that it is concerned about some of these same things that Newsom was talking about, some of these
same things that the Washington state Supreme Court was talking about.

Now, we were very dismayed, and I would not ever defend the Supreme Court’s allowing Ray’s
execution to go forward. I think that that was a coming together of some of the worst ways in which the
death penalty plays out, including the fact that, because of the way that Supreme Court rules work
under [deadline] of an execution, it’s very difficult to get a claim heard that you would otherwise
normally get heard. So they had enough votes to hear the briefing and make a reasoned decision on the
merits of the religious discrimination that was going on in that case, but they didn’t have enough votes
to stop the execution because of the way the state rule works. Time and time again, super important
legal issues don’t get a real hearing because the push for finality and moving to execution just ends up
outweighing decency and justice. So that was really a setback, and discouraging, but I think that we’ve
seen from this court over the years— even though they rule against a claim that is brought on the eve
of execution, that doesn’t tell you how they would rule on the merits of the claim.
 --- EXT: Supreme Court Will Eventually Abolish It

The politics of the death penalty are slowly but significantly changing – states are
moving to end it and eventually the Supreme Court will follow
Von Drehle, 19 (3/15/19, David - author of a number of books, including the award-winning bestseller
“Triangle: The Fire That Changed America”, “The death penalty makes a mockery of our justice system.
Abolish it,” https://www.washingtonpost.com/opinions/the-death-penalty-makes-a-mockery-of-our-
justice-system-abolish-it/2019/03/15/fccbcf66-4670-11e9-aaf8-4512a6fe3439_story.html, accessed on
4/5/2020, JMP)

California Gov. Gavin Newsom (D) announced that he will not pursue the execution of any of the 737
death-sentenced inmates at San Quentin State Prison. Calling capital punishment “ineffective,
irreversible and immoral,” Newsom ordered the decommissioning of the execution chamber and
rescinded the state’s protocol for lethal injection. These steps will make it more difficult for future
California governors to reverse course.

The governors of Colorado, Oregon and Pennsylvania have already renounced the death penalty and
have suffered no appreciable political backlash. Including California, these four indefinite pauses cover
roughly one-third of all death row prisoners in the United States. Ohio Gov. Mike DeWine (R) has
suspended the death penalty in his state — home to another 144 condemned prisoners — until an
execution protocol can be devised that meets court standards.

Elsewhere, halts originally ordered by governors have led to outright abolition . Last year, Washington’s
state Supreme Court cemented a 2014 moratorium by declaring the death penalty unconstitutional. In
Illinois, a governor’s moratorium became permanent in 2011 when the legislature abolished capital
punishment.

What used to be political dynamite has become about as explosive as damp newsprint. By walking away
from capital punishment, elected leaders are essentially converting death sentences to life
imprisonment without parole — and getting away with it for much the same reason Newsom was able
to scale back California’s pie-in-the-sky bullet train earlier this year. The public is wise to expensive
gestures that produce scant results.

The U.S. Supreme Court has ruled repeatedly over nearly half a century that the death penalty is
different from all other punishments. It must meet stringent standards to be lawful. This perfectionism,
fine on paper, has proved impossible for lower courts to satisfy reliably and efficiently.

So Newsom’s moratorium comes some 13 years after California’s last execution. In 2006, the state
ended the life of a triple-murderer whose appeals had been rattling through the courts for nearly 25
years. Since then, nothing. Just endless waiting and endless litigation, with a price tag that experts
reckon is in the billions.

Nationwide, fewer than 1 percent of death row prisoners were executed in 2018. A death row prisoner
in 2016 (the most recent year for which data is available) was almost exactly as likely to die of natural
causes as by execution. That’s not surprising given that the median age of inmates on death row was
approaching 50.
These realities — high costs and rare results — first altered the politics of the death penalty at the local
level, beginning some 20 years ago. Elected prosecutors, seeing their budgets decimated by the expense
of capital trials and appeals, stopped seeking the death penalty. Between 1981 and 2000, U.S. courts
imposed more than 200 death sentences per year — sometimes more than 300. But then the number
fell sharply and hasn’t topped 50 per year since 2014.

Meanwhile, police officials came to the same realization. A poll of 500 police chiefs in 2008,
commissioned by the Death Penalty Information Center, found that capital punishment ranked last
among their preferred crime-fighting strategies.

This is the background against which so many governors have felt safe to be sane. State by state, they’re
putting an end to this wasteful folly. State legislators are inching in the same direction. From New
Hampshire to Wyoming, lawmakers are advancing bills to end capital punishment — led, in many cases,
by conservatives.

Sooner or later, this sea change is likely to register on the institution that gave us this mess. In 1972,
the Supreme Court looked out at a nation in which hundreds of prisoners languished on death rows and
hardly any were executed. The court struck down this arbitrary system, and for four years there was no
death penalty in the United States. But states promised that a more elaborate system would deliver
reliable results.

Well, the results of that experiment are in. After more than four decades of tinkering with the system,
capital punishment is a costly mockery of justice. What was unconstitutional in 1972 remains so
today. The high court should call the whole thing off.
 1nc Life-Without-Parole Turn

Ending death penalty won’t solve --- it will be replaced with life-without-parole
 won’t end the punishment-focused mindset
 innocents less likely to receive legal assistance and court attention
 racial imbalances more likely with life-without-parole

Miller & Harawa, 20 --- *senior legal counsel at the Justice Collaborative, a nonprofit organization
working to reform the criminal legal system, AND **assistant professor of practice and director of the
Appellate Clinic at Washington University in St. Louis School of Law (1/22/20, Ben & Daniel S.,
“Democrats Should Stop Saying Some People Should Die in Prison; Replacing the death penalty with
death in prison is not true progress,” https://slate.com/news-and-politics/2020/01/elizabeth-warren-
life-without-parole-death-penalty.html?utm_source=The+Appeal&utm_campaign=23c4e30f36-
EMAIL_CAMPAIGN_2018_08_09_04_14_COPY_01&utm_medium=email&utm_term=0_72df992d84-
23c4e30f36-58408851, accessed on 4/6/2020, JMP)

Late last week, a clip of an interview from the New York Times with Sen. Elizabeth Warren made the
rounds on social media. In it, Warren spelled out her position against the death penalty, citing the
evidence of wrongful convictions and racism associated with capital punishment. Then she added: “I
think that people who have committed truly heinous crimes should die in prison. I think that is how we
give them the maximum, maximum punishment that we can: keep them in prison for all their days.”

Warren’s answer echoes a similar response by Bernie Sanders, who thinks those who commit “horrific”
crimes should “spend the rest of their days” in prison. This position is widely accepted as the progressive
stance on the death penalty: Nearly every person vying to be the Democratic presidential nominee
agrees that life without parole should replace the death penalty.

But answers like Warren’s and Sanders’ represent a continuation of the same punishment-focused
mindset that has fueled our incarceration addiction over the past several decades and will stand in the
way of ever achieving a truly fair criminal legal system. Despite a recognition across the political
spectrum of the need to end failed tough-on-crime policies that have exploded prisons and budgets, we
will solve nothing if we think the answer is to substitute one cruel punishment with another. We have
to end our culture of believing “maximum, maximum punishment” is the solution.

Similar to the death penalty, life without parole is prohibitively costly, does not effectively deter crime,
and can be replaced without risking public safety. More than 100 people sentenced to life without
parole have been exonerated since just 2013. Yet, as even Justice Antonin Scalia recognized, an
innocent person is “infinitely better off” challenging a death sentence than a life sentence. Scalia
explained that the same “risk of wrongful convictions” exists if “horrendous death-penalty cases were
converted into equally horrendous life-without-parole cases,” but because a person will obtain more
legal assistance and court attention with a death sentence, an innocent person sentenced to life
without parole is more likely to “languish unnoticed behind bars.”

As Warren did, nearly every Democratic candidate has spoken about the racism inherent in the death
penalty. They are of course correct: Black people account for 40 percent of the death row population.
But none addressed the fact that racial imbalances are actually more stark in the life-without-parole
context. Of those serving life without parole, 56 percent are Black. As Michelle Alexander, author of The
New Jim Crow, recently wrote, many who sincerely think they are trying to address the “real harms” in
our criminal legal system tend to “underestimate” the inherent bias and racism rampant throughout.

And life without parole is cruel. One man who served more than 36 years in prison before his life-
without-parole sentence was overturned described it as “the sense of being dead while you’re still
alive, the feeling of being dumped into a deep well struggling to tread water until, some 40 or 50 years
later, you drown.” Canada, Mexico, France, Italy, and Germany do not have life sentences without the
possibility of parole. England has one seven-hundredth the number of people serving life without parole
as does the United States. In 2017, by a 16–1 decision, the European Court of Human Rights ruled that
denying a person the chance for parole is “inhumane and degrading treatment” in violation of the
European Convention on Human Rights. It defies reason to believe our society is made better by keeping
thousands of people, as they grow elderly and infirm, in prison until they die.

Some may still see no problem with life without parole for people who commit “truly heinous crimes.”
But it is a fallacy that this country has ever proven willing or capable of reserving the most severe
punishments for only the worst offenders. If draconian punishments are an option, whether the death
penalty or life without parole, they will be disproportionately used against people of color and wielded
in an arbitrary, unfair manner.

Currently, with over 53,000 people serving a life-without-parole sentence and another 2,600 on death
row, there are likely hundreds, if not thousands, of people serving these sentences who would not meet
any reasonable definition of the “worst of the worst.” One-fourth of life-without-parole sentences are
for a crime other than murder, and 43 percent of people on death row are in need of mental health
treatment, 25 percent have an active mental health disorder, and 14 percent are intellectually disabled.

According to the Bureau of Justice Statistics, more than 40 percent of all murders are committed by
people 24 years old or younger, and over 60 percent are by people not even 30 years old. In her book,
Until We Reckon, Danielle Sered spells out that while young adults are the age group most prone to
violence, they are also the age group most capable of change. But life without parole strips these young
people of any hope of release no matter how they change. A life-without-parole sentence sends an
unmistakable message: A person is irredeemable and beyond rehabilitation no matter what happens
over the next 25, 30, 40 years in prison.

Allowing people sentenced to life in prison to have the opportunity—not the guarantee but the hope—
for parole is not soft on crime and will not create an unreasonable risk to the public. Instead, a chance
for release recognizes that our criminal legal system is supposed to rehabilitate people, and it gives
people in prison a reason to reform. Most people have that capacity to grow and change. Life without
parole, like the death penalty, ignores that truth while defining thousands of people for life as no more
than the worst thing they ever did.

And people age out of crime, no matter the original offense. Studies have determined that whether a
person is over the age of 50 is “the most important predictor of lower recidivism rates.” Only 7 percent
of those ages 50 to 64 and 4 percent of those over 65 are returned to prison for new convictions—the
lowest rates among all incarcerated demographics. For example, after a 2012 change in the law led to
nearly 200 people who had been convicted of murder in Maryland being released after more than 30
years in prison, less than 3 percent have been rearrested and none for a serious crime of violence.

Warren and Sanders deserve praise for their criminal justice reform platforms, recognized as “the most
decarceral criminal justice platforms to enter presidential politics.” So does every candidate who has
taken a stance against the death penalty, a position not taken by Hillary* Clinton in 2016 or even by
Barack Obama during his presidency. But their willingness to default to life without parole as a solution
is evidence of the work that still must be done.
 --- EXT: Death Penalty Decline => LWOP Increase

Death penalty abolition leads to spike in LWOP sentences

Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.171-174,
JMP)
Life Rows

Today, even as
the death penalty fades away, juries and judges increasingly impose “the other death
penalty,” or life without parole. Many more inmates are “virtual lifers” who, even if parole is technically possible, will as a practical matter serve
their entire lives in prison. Should we celebrate this trend alongside the decline of the death penalty?

Many death penalty opponents long pushed for life without parole to replace the death penalty. The
California ACLU, arguing why LWOP would be better than the death penalty, said, “Life without parole provides swift, severe, and certain punishment.” They added,
“Sentencing people to die in prison is the sensible alternative for public safety and murder victims’ families.” They did note that people can be found innocent and
exonerated if they are not executed. The
ACLU acknowledged, “Unlike death penalty cases , however, LWOP sentences
receive no special consideration on appeal, which limits the possibility they will be reduced or
reversed.”7 This begs the question: Is this really what death penalty opponents wish for? A system in which it is thought best to
lock the door and throw away the key for people sentenced to LWOP?

Death penalty abolitionists who pushed for LWOP as an alternative to the death penalty should have
been careful of what they wished for. I have already described how adopting LWOP has not played any measurable role in the decline in death
sentences. Instead, life sentences have skyrocketed. Today, about one in eleven people serving prison time—over 160,000 prisoners—is serving a life sentence, and
over 50,000 prisoners are serving life without parole. Those numbers dwarf those on death row, who number about 3,000 people.8 According to a study by the
Sentencing Project, most of these tens of thousands of prisoners who are serving life were convicted of murder. But many of them (over 10,000) were convicted of
nonviolent crimes, like property offenses or drug offenses, and many were convicted of sexual assault, robbery, or kidnapping. Nellis, whose research uncovered
these numbers, has commented, “Life in prison is a death sentence, without the execution.” Stark geographic disparities exist for
life sentencing, as with death sentencing. LWOP is available in every state except Alaska, but more than half of LWOP sentences nationally are concentrated in five
states: California, Florida, Louisiana, Michigan, and Pennsylvania.9

Why are life and life-without-parole sentences growing during a time when crime is declining? Governors are much less likely to approve parole for people serving
life sentences. California governor Gray Davis said, “If you take someone else’s life, forget it. I see no reason to parole people who have committed an act of
murder.” Other states have passed two-strikes or three-strikes laws for repeat offenders, requiring mandatory life-without-parole sentences. California’s three-
strikes law has resulted in the state’s having one-quarter of the life-sentenced prisoners in the United States.10

While federal death sentences have declined, life sentences have increased, along with harsher
sentencing laws. About 4,500 federal prisoners are serving life without parole, accounting for 2.5 percent of federal prisoners. These sentences are not just
in murder cases, but are most common in drug-trafficking cases, and also in firearms, extortion, and racketeering cases. The U.S. Sentencing Commission has
explained that many of those cases involved very large quantities of drugs. The Commission also noted that far more of the prisoners sentenced to life
imprisonment were minorities. Some serve mandatory life sentences based on mandatory minimum sentences for certain crimes, including for third-time federal
drug offenses. Far more federal prisoners, about 6,500 of them, have sentences so long that absent a pardon, it guarantees they will spend the rest of their lives in
prison. Many of these people were involved in serious criminal organizations, and most had serious criminal records, but most did not themselves commit
murders.11

Should we really be sentencing so many thousands of people to life sentences? These lengthy sentences have a disproportionate impact on our prison populations.
To reduce mass incarceration, it is important to focus on lengthy prison sentences. After all, one person serving a ten-year sentence occupies the same amount of
prison space as ten people serving one-year sentences. Moreover, due to life sentencing and other lengthy sentencing, our prisoners are generally aging. According
to the federal Bureau of Justice Statistics, the number of persons fifty-five years or older sentenced to more than one year in prison surged 400 percent between
1993 and 2013, to over 130,000. These elderly prisoners have greatly increased burdens on medical care, and states have only begun to adopt meaningful programs
for early release of geriatric patients or “compassionate release” of dying prisoners.12

The U.S. Supreme Court considered whether life without parole is constitutional under the Eighth Amendment or is in fact cruel and unusual punishment. It has
struck down automatic LWOP sentences for juveniles and for persons who were under eighteen years old when they committed the offenses. Such sentences
cannot be mandatory. The court added in its 2016 ruling in Montgomery v. Louisiana that a juvenile’s crimes must reflect “permanent incorrigibility,” and that
juvenile LWOP should be reserved for only “the rarest offenders.”13 For juveniles, these rulings mean that an LWOP case now looks more like a death penalty case,
with an opportunity to present mitigating evidence. Now juveniles will need defense teams with mitigation expertise to handle those cases. In some states,
hundreds of new sentencing hearings must be held. Some state courts have already ruled that imposing an LWOP on a juvenile should be rare, and others have
extended the same reasoning to sentences that are so long that they are de facto life sentences.14 Death penalty lawyers and nonprofits are increasingly working to
teach lawyers how to do mitigation and life history investigations in LWOP cases. Good investigation and lawyering will matter in far more cases, which will provide
new opportunities and new challenges.

While better lawyering impacts the death penalty, and now it will impact juvenile LWOP, better lawyering cannot readily impact widespread mandatory sentences,
which are binding even on judges. Federal judges have chafed at the harshness and inflexibility of mandatory minimums and also at harsh recommendations of the
federal sentencing guidelines. A bipartisan coalition of lawmakers has pushed federal legislation to undo mandatory life sentences in drug cases, citing the billions in
costs, the racial disparities, and the excessiveness of the sentences.15 Far more should be done to permit lawyers to make the case for their individual client and for
judges to exercise flexibility in sentencing.

The rise of LWOP suggests that ending the death penalty is a “bubble under the rug” problem. You can
tamp down on it, but the bubble just moves farther along—or worse, it grows.

Plan will lead to more LWOP sentences – several reasons

A. Empirically true
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

B. Repeal of the Death Penalty

The rapid rise in LWOP sentences can partly be attributed to a desire for a reliable, terminal punishment
to replace the death penalty after it was declared unconstitutional in 1972. 32 Alabama, Illinois, and
Louisiana all adopted LWOP statutes in direct response to the Furman decision. 33 Although life
sentences were certainly available in many states before Furman, they usually had the option of parole.
34 More recent LWOP statutes, though they may not be in direct response to Furman, have been
successful at enacting LWOP partly because of the promise of irrevocability that the sentence offers.
Numerous state examples demonstrate this point.

In 2004, Kansas Governor Sebelius publicly supported LWOP and signed it into law to show her
opposition to the death penalty, 35 even [*446] though Kansas has not had an execution since 1965
and has only nine death row inmates. 36 Texas policymakers resisted enacting an LWOP statute for
many years because of the state's devotion to the death penalty, but it finally passed LWOP legislation
after the death penalty was abolished for juveniles in 2005. 37 And New Mexico's abolition of the death
penalty would not have been possible had the state not endorsed LWOP in exchange. 38 In fact, in
twenty of the thirty-four death-penalty states, LWOP is now the required alternative if a prosecutor
fails to obtain a death sentence. 39 LWOP is not only used for capital murder either. Many state
legislatures have expanded the range of LWOP-eligible offenses to include a broad array of noncapital
crimes as well, such as armed burglary and various drug offenses. 40 Today about 10% of LWOP inmates
have been convicted of nonviolent crimes. 41

B. Public pressure
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

C. Public Mistrust

Confidence in the criminal justice system drops and concerns are raised about judicial or correctional
leniency when paroled offenders commit a new offense. The idea of eliminating the death penalty is
more palatable to a fearful public if the sentence that replaces it is equally permanent, guaranteeing
that the prisoner will never be released. When the public struggles to believe that lengthy sentences
will be carried out in their entirety, it will prefer lifelong, determinate sentencing structures, despite
evidence that lengthy prison sentences are not associated with less crime or enhanced public safety .
42

Public outrage ensued after outgoing Mississippi Governor Barbour released 198 prisoners in early 2012,
four of which had been convicted of murder. 43 Three of the murders occurred nearly twenty years ago
and [*447] the fourth occurred more than a decade ago. 44 While the Mississippi Supreme Court
upheld Barbour's decision, 45 it was not without political backlash: Incoming Governor Phil Bryant
abruptly ended the decades-old practice of allowing prison "trusties" to work in the governor's mansion.
46 In addition, attempts were quickly made to limit the governor's pardoning power through legislation
or a change to the constitution. 47

Fear of judicial leniency makes the public leery of sentences that allow for even the remote possibility of
release; however, as Justice Kennedy noted in Graham v. Florida, a parole-eligible life sentence does not
give someone the right to be released, it just gives a person the opportunity for sentence review at
some reasonable point during their sentence. 48

C. LWOP is most likely replacement

Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

At the same time, the steady rise in LWOP sentences may be due to the promotion of LWOP as a
replacement for the death penalty. 50 Even [*448] though clear evidence is not yet available about
whether the expansion of LWOP sentences is empirically attributable to the decline in death sentences,
promotion of LWOP as a humane, reasonable alternative to the death penalty desensitizes society to
the fact that this, too, is a death sentence. Instead of being portrayed as such, LWOP is often portrayed
as a lucky break for defendants (e.g., defendants are tempted by prosecutors and defense attorneys
alike to plead guilty and serve LWOP rather than risk a death sentence).

D. Pressure to be tough on crime fuels more LWOP sentences

Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

A. Tough on Crime

One reason that the number of people serving LWOP sentences increased is that policymakers ratcheted
up the severity of sentences in the 1980s and 1990s. 19 Elevated crime rates and crime fears at that
time contributed to a new system of punishment that prioritized the offense over the offender and
pushed for increasingly lengthy stays in prison. Catch phrases such as "do the crime, do the time" and
"life means life" were popularized and quickly translated into crime policies that ultimately eliminated
many of the indeterminate sentencing structures that had been in place for more than a century,
replacing them with determinate, [*443]

Figure 3. State and Federal LWOP Populations in 2008/2009

FIGURE 3. STATE AND FEDERAL LWOP POPULATIONS IN 2008/2009

Source: Ashley Nellis & Ryan S. King, The Sentencing Project, No Exit: The Expanding Use of Life
Sentences in America 8-9 (2009). [*444] long sentences. 20

Prominent among these tough-on-crime sentencing policies are three-strikes laws, one of the drivers of
LWOP. Three-strikes laws have been promoted as providing confidence that upon a defendant's third
conviction he or she will be given an extremely long prison sentence - preferably one that locks him or
her away for life. Between 1993 and 1995, twenty-four states and the federal government enacted
three-strikes laws. 21 While most of the life sentences resulting from three-strikes laws allow for the
possibility of parole, thirteen states and the federal government have three-strikes laws that mandate
LWOP for certain crimes. 22

Decline in death penalty empirically leads to expansion in LWOP --- it’s the other
death penalty
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.167-171,
JMP)

In criminal justice reform, changes in the law can have truly unanticipated consequences . Life without
parole is a case in point. Some fans of adopting life without parole (LWOP) hoped that it would give
jurors an option not to sentence persons to death and would reduce death sentencing. Opponents
feared that LWOP would harm death sentencing, which they favored. Both the advocates and the
opponents of LWOP got something more and something less than they bargained for. As I will show in
this chapter, while the evidence is strong that LWOP did little to hasten the demise of death penalty
cases, the evidence is overwhelming that its scope has expanded tremendously. Tens of thousands of
people who never could or never would have been sentenced to death now get the “other death
penalty.”

Texas provides a troubling case study for what can happen when death sentences shift to life-without-
parole sentences. Texas was late to adopt LWOP. Before 2005, a Texas judge would tell the jury in a
capital case that if the jury decided not to impose a death sentence, the defendant would automatically
receive a “Hard 40” life sentence, meaning the defendant’s earliest possibility of parole was after forty
years of imprisonment.1 This remote chance of parole for certain murderers, however, was frowned on
by some. Texas state senator Eddie Lucio, Jr., had introduced a law for three sessions in a row to replace
Hard 40 with LWOP. Senator Lucio said that a “true” life-without-parole sentence would bring “more
integrity” to the death penalty process. With an LWOP option, “juries no longer would be forced to vote
for a death sentence to ensure that murderers never got out of prison.”2 Supporters of LWOP also
noted that there was no evidence that its introduction would decrease the number of death sentences
that juries hand down.

Opponents of the new law disagreed. They thought it would give “only the illusion of comfort to
victims.” Worse, it would “weaken” the death penalty and confuse jurors. That the new law would allow
life-without-parole sentences in non–death penalty cases meant it would “distort” the entire system, for
the harshest penalties would no longer be reserved for the most serious crime, capital murder.3 Some
opponents also feared that adopting LWOP would hamper death sentences. The Harris County District
Attorney’s Office aggressively opposed the 2005 law adopting LWOP. The Texas District and County
Attorney’s Association, which represented 3,300 state prosecutors, did not take a position on the law, in
part because they were not “sure of the effect it will have on the death penalty.” Despite these
objections, the third time proved the charm, and Texas lawmakers adopted LWOP in September 2005
for crimes committed after that date. After LWOP was adopted, death sentences continued to decline in
Texas, just as they had been doing for years. There was no change in the rate of decline—LWOP had at
best a weak effect on death sentencing in Texas.

The continuing decline in death sentences in Texas tells only part of the story. What it misses is the
stunning rise of LWOP. There were no LWOP sentences for capital murder in 2005, and only a few in
2006, but then there was a sharp spike. In 2007, there were eighteen death sentences and forty-eight
life-without parole sentences. In 2012, there were ten death sentences and 105 LWOP sentences. LWOP
exploded in Texas in the years following its adoption. Opponents who worried that people not eligible
for the death penalty would receive LWOP were right. What they got wrong was how some would end
up embracing what they had previously opposed. Consider the fact that in the law’s first few years, the
Harris County district attorney sentenced over one hundred people to LWOP, or one-quarter of all those
who received it in the entire state of Texas.4 As Figure 7.1 illustrates, the state’s population on “life row”
has exploded, while the numbers on death row continue to decline.

The rise in LWOP sentences has been stunning. Data on such sentences are notoriously difficult to
reliably come by, but Dr. Ashley Nellis of the Sentencing Project shared detailed data from the Texas
Department of Corrections describing who is now sentenced to LWOP in Texas. Texas now has a “life
row” vastly larger than its death row ever was, with almost 800 people serving LWOP and about 9,000
people serving a life sentence with parole.5 The Texas life row can include individuals who are not
eligible for the death penalty. It initially included juveniles at the time they committed the offense,
twenty-eight of whom received LWOP sentences from 2005 to 2013, but Texas then eliminated
mandatory life sentences for juveniles in response to Supreme Court decisions, making parole possible
after forty years. Texas life row can also include intellectually disabled individuals as well as some
individuals who did not commit murder but rather sexual assault against a child. In 2015–2016, LWOP
sentences declined in Texas, which hopefully indicates a new direction in handing out such harsh
sentences.
Other states followed the same pattern, with LWOP surging as death sentences gradually declined. To
be sure, most states that enacted LWOP did so before Texas did, and as part of tough-on-crime
sentencing measures in the 1980s and 1990s, not as part of any debate about whether to maintain the
death penalty. Others adopted LWOP in response to the Supreme Court striking down death-sentencing
statutes from 1972 to 1976, seeking to adopt a “whole life” alternative to the death penalty. In other
death penalty states, LWOP sentences have similarly increased. In Ohio, prosecutors seek the death
penalty far less often; as recently as 2010, they charged capital murder in a hundred cases a year, but it
is now down to fewer than twenty cases a year. One Ohio prosecutor, whose office seeks capital murder
in a fraction of the cases it used to, and who created a special group to decide which cases are worth
pursuing as death penalty cases, commented, “In every case, I have to ask, ‘Are we going to survive
this?’ We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of
victims? Is it fair putting them through a quarter century of appeals?” Such screening should occur for
LWOP cases and others. As of the time I write, in Ohio there are now about 600 people serving LWOP.
There are almost one hundred LWOP sentences a year in Ohio, far more than there ever were death
sentences.6 Prosecutors in death penalty states may not be obtaining death sentences as often—but
some are far more aggressive than ever before in seeking and obtaining LWOP. Just as in Texas, a
greatly expanded life row has replaced a shrinking death row.
 --- EXT: LWOP Has Fewer Protections

LWOP sentences will replace the death penalty --- defendants get on balance worse
representation and there’s a higher risk that innocents will be unable to successfully
appeal
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 183-6, JMP)

Life for a Lie

The role that improved lawyering has played in the death penalty decline has enormous ramifications
not just for the future of the death penalty, but for criminal justice more broadly. Outside of the death
penalty, criminal defendants do not normally get teams of lawyers assigned to their cases. They do
not get investigators to help uncover facts about their case. They do not get a separate trial to make
the case that they deserve an individualized sentence. This problem raises the question: if decent
lawyering can undo the death penalty, what does that tell us about all the people who do not get decent
lawyers and receive life sentences?

Take the case of Joseph Sledge: he was sentenced to two life sentences in North Carolina in 1978. Two
jailhouse informants claimed that while in prison he had confessed to the murders in detail, and they
denied that they had been promised anything in return or that they knew there was a $10,000 reward in
the case. Later, an informant explained that in fact he had been offered early release and a reward in
exchange for falsely implicating Sledge. Since Sledge received life sentences, he did not have death
penalty lawyers assigned to his appeals and habeas. No one was working on his case at all—he filed
petition after petition himself, pro se, and the judges summarily dismissed all his claims. Finally, his
handwritten letter caught the attention of an innocence-project lawyer, and after nearly forty years a
court clerk who was cleaning out the evidence room found an envelope high on a shelf with missing
crime scene evidence from the case. In 2015, after Sledge obtained DNA tests, he finally received an
exoneration and his freedom.42

We need to look just as carefully at the cases that are not attention-grabbing death penalty cases. Life
without parole sentences in this country have skyrocketed, as have other massive sentences. LWOP
shares something unique with the death penalty: there is no conceivable way to rehabilitate a prisoner
condemned for the rest of her life, just as there is no rehabilitation of a prisoner condemned to death.
And the pernicious nature of junk science in convincing jurors and public of the certainty of future
dangerousness is equivalent to sending someone to serve a life in prison for a lie.

Karriem Saleem El-Amin went to prison when he was nineteen, in 1971, and he served forty-two years,
three months, and three days. He now works at a warehouse store called Second Chance, which is
owned by a nonprofit in Baltimore. He told a journalist, “I work in the receiving department. And I’m
kind of happy to say every little item [that arrives] I get a chance to touch.” In Maryland, 130 lifers were
released after a ruling by the Maryland Court of Appeals based on defective 1970s jury instructions. The
state hired social workers to help these people. None of them has reoffended or even violated
probation.43 Lawmakers are starting to reexamine life sentences as part of a renewed focus on
rehabilitation. In California, thousands of lifers have been released since 2011, and only thirty-three of
them, less than 2 percent, have returned to prison—most not for new crimes, but for parole violations:
things like “buying beer,” “possessing a banned iPhone,” and missing parole officer meetings.44 In
general, evidence suggests that the likelihood that paroled lifers will commit new serious crimes is
“miniscule” and “minimal” when compared with that of the general inmate population.45 After all, by
the time a lifer is paroled, they may have served two decades or more in prison; older people are simply
far less likely to commit crimes ever again.

Our devil’s advocate was Supreme Court Justice Antonin Scalia, who in a 2015 opinion argued, “The
reality is that any innocent defendant is infinitely better off appealing a death sentence than a
sentence of life imprisonment.” The death penalty should not trouble us, he said, because we would
have “the same risk of wrongful convictions” should the “horrendous death-penalty cases” be instead
“converted into equally horrendous life-without-parole cases.”46 Justice Scalia highlighted the perverse
fact that death penalty defendants receive better lawyering, but his response was to ignore both the
symptom and the larger disease. Instead, far more attention must be paid to the quality of defense
lawyers in all types of criminal cases. Before we celebrate the decline of the death penalty we should
think carefully about what we have replaced it with: a life row approaching 200,000 prisoners. Many
of those inmates faced the same pressures to plead guilty, but without the defense lawyering that
death penalty cases receive.

The future of criminal justice reform is clear: we must now address the poor defense lawyering and the
horrendous risks of wrongful convictions and excessive sentences in this country. We must consider
early release for prisoners, including those filling the vast life rows that replaced death rows. As the
shadow of the death penalty fades, we will have to confront larger sources of error and injustice.

LWOP lacks heightened review and protections afforded to death penalty cases
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)
III. What's Wrong with LWOP?

There are at least three serious issues with parole-ineligible life sentences. These problems include an absence of
heightened review of LWOP sentences, the mandatory application of LWOP, and the extreme racial disparity in
the LWOP population.
A. Lack of Heightened Review

Death penalty cases are reviewed with a high degree of scrutiny because of the irrevocable nature of
executions. 51 In fact, several layers of review separate the imposition of death sentences from that of all lesser sentences. 52 For instance, capital
defendants generally have the right to state-appointed counsel for post-conviction litigation, but noncapital defendants do not. 53 And, while ineffective assistance
of counsel still occurs in death penalty cases some of the time, particularly for low-income defendants, these claims are carefully reviewed. 54

For life without parole cases, the court procedures are far more limited; appeals by the highest state
court are not guaranteed as they are with death penalty cases, and the mandatory nature of LWOP
sentences allows important features of a case or defendant to be overlooked. 55 For juveniles, it is not uncommon for
a defendant's attorney to be trying his or her first homicide case, as trial attorneys often cut their teeth in juvenile cases.
Those facing LWOP sentences do not benefit from the same level of procedural protections during the
original trial or during the appeals process, despite the similarities they share with death sentences. 56
And though state and federal post-conviction habeas restrictions differ from [*449] state to state, appeals are frequently time-barred. 57 Yet there is virtually no
limit to the appeals process where the penalty is death, resulting in offenders remaining in prison an average of about fifteen years before facing execution. 58 Of
the roughly 3,300 prisoners currently on death row, nearly all will die of natural causes or suicide, the same cause of death for the roughly 41,000 individuals who
comprise the LWOP population. 59

The means by which a defendant can be sentenced to death are much more limited than those for an
LWOP defendant. First, depending on the jurisdiction, both judges and juries can deliver LWOP sentences, but death sentences are usually the sole
decision of juries. 60 In addition, most states and the federal government require the jury to unanimously agree

that a defendant should be sentenced to death, but this is not the case with LWOP . Unanimous jury decisions are not
required for LWOP, and judges often make the sentencing decision. "Scholars estimate the reversal rate for noncapital cases to

be 10-20%, far below the capital reversal rate of roughly 68%." 61

Another concern is the limited amount of information that juries are entitled to receive about sentencing options in death penalty cases. Simmons v. South Carolina
determined that when a prosecutor who wishes to raise the issue of future dangerousness as justification for sentencing the defendant to death, he or she must
disclose LWOP as an alternative if it is an option in the state. 62 However, it is not a requirement to disclose any other sentencing options that might be available.

The lack of heightened review in cases leading to LWOP sentences brings an increased likelihood that
innocent individuals will be punished. Just as placing an innocent person on death row is morally
unacceptable, so too is the wrongful imprisonment of someone for the rest of his or her life . For both, it means
a period of irreversible years spent in prison. Since 1973, there have been 141 exonerated death row prisoners; [*450] the exact number of exonerated individuals
serving LWOP is not known but is presumed to be lower. 63 One such case is that of the West Memphis Three, which received prominent national attention by
investigative journalists and Hollywood celebrities, ultimately pressuring the state enough to revisit the case. Eventually, the two LWOP sentences and one death
sentence were successfully challenged, and the three men were released after serving sixteen years in prison for crimes they did not commit. 64

With few exceptions the weight of the discussion around innocence claims is focused on death sentences, 65 despite the strong probability that some prisoners
serving life sentences are also innocent. Moreover, the death penalty is frequently used to leverage a guilty plea in exchange for a reduced sentence of LWOP. 66
There is some evidence that defendants sometimes plead guilty to avoid more severe sanctions even though they are actually innocent. 67

Perhaps one reason the practice of trading death for the rest of one's life behind bars is morally accepted is that the public believes that it is relatively simple to
have a case reopened if new evidence of innocence emerges. In a 2010 national public opinion poll, respondents were asked to provide their level of agreement (on
a scale of 0-10) with the following statement: "With a sentence of life without parole, if new evidence of innocence emerges, the case can be reopened." 68 Sixty-
six percent of respondents gave this a "10" and an additional fourteen percent gave it an "8" or "9," meaning that the vast majority of respondents thought this was
an option for life sentences. 69 Yet, in reality this is not the case. Most states have time limits in which claims of innocence must be filed, ranging from just twenty-
one days to three years. 70 And it
is more difficult to have an LWOP case examined because of the perception
advanced that less is at stake compared to a death sentence . Over the past three decades, the
opportunities for post-conviction appeals [*451] have been drastically reduced. 71
North Carolina's Racial Justice Act illustrates the subordinate position that LWOP holds in terms of protections against miscarriages of justice. Under the Act, a death
row inmate can challenge his or her sentence on the grounds that race played a significant role in arriving at the sentence. 72 Yet if the appeal is won and the case
is determined to have been racially biased, the remedy is an LWOP sentence. Missouri and Pennsylvania introduced similar legislation in 2012. 73 Lawmakers seem
to have come to the conclusion that it is somehow less unjust to administer an LWOP sentence than a death sentence when race was established to have played an
important role.

In general, the public is less concerned about innocent people being sentenced to life without parole than being sentenced to death. In the same survey referenced
above, respondents were asked to report how convincing they found the following statement:

The death penalty risks executing the innocent. Many innocent people have been sent to our nation's death rows before new evidence freed them and some
innocent people may have been executed. It is unacceptable to execute innocent people, and in a system run by human beings that's inevitable. Executing innocent
people is a risk we can completely avoid by using sentences of life with no possibility of parole. 74

Seventy-one percent of respondents found this statement to be very or somewhat convincing, 75 suggesting that the
public is not nearly as
concerned about individuals serving lifelong prison sentences, even if they are innocent, because the
wrongful execution of them has been spared .

One might think that clemency is an option for relief from an LWOP sentence, but governors nationwide
have denied virtually all clemency requests over the past three decades. 76 Petitioners must depend on a shift in the
political landscape in order to hope for relief through clemency. One's readiness for release should be a decision that is determined by a professional panel
equipped to review the prisoner's original sentence and his or her rehabilitation since arriving at prison.
Some states have eased the ways in which inmates can be released from long sentences, but in reality
these early release valves are rarely [*452] used. 77 In Wisconsin, for instance, the Governor expanded a program in 2009 that permits
LWOP inmates to petition for release on the basis of age and infirmity, but few inmates were released under this program and the program was later amended and
restricted. 78 Virginia and several other states have a mechanism in place for geriatric release, but this too is rarely utilized. 79
 --- EXT: LWOP Racist

LWOP sentences are subject to the same racial disparity

Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

C. Racial Disparity

Racial disparity is a widely documented problem in death sentences; multiple studies confirm that race
plays a fundamental role in sanctions imposed within the criminal justice system. 94 The race of the
victim appears to play a particularly important role in whether the death penalty is sought. 95

Any sentence that is more likely to be imposed because of one's racial or ethnic background, all other
factors being equal, is inappropriate. Just as it is wrong to administer a death sentence when it is
discovered that the trial phase was influenced by race, it is also wrong to [*454] sentence someone to
life in prison for this reason. Yet we see this playing out in states around the country.

Of the 41,095 people serving LWOP sentences (as of 2008), 48.3% are African-American. 96 While data
on the race of the victims for all people serving life without parole sentences has not been gathered, an
analysis of data on juvenile life without parole ("JLWOP") shows that the proportion of African-
Americans serving JLWOP sentences for killing a white person (43.4%) is nearly twice the rate at which
African-American juveniles overall have been arrested for taking a white person's life (23.2%). 97
Perhaps other factors, such as a prior record, account for this large-scale disparity, but until we can be
absolutely certain that these other factors provide a full explanation , it is inappropriate to permit
criminal sentencing that produces racial disparity. 98
 --- EXT: LWOP is Dehumanizing

Life in prison is dehumanizing – inmates face cycle of brutality and only ending the
prison system can resolve it
Bouie, 20 --- New York Times opinion columnist, writes about politics, history and culture (1/31/2020,
Jamelle, 12 Deaths in Mississippi Tell a Grim Story; The only way to “fix” a problem like the American
prison system is to end it,” https://www.nytimes.com/2020/01/31/opinion/mississippi-prison-
deaths.html?
action=click&module=Opinion&pgtype=Homepage&utm_source=The+Appeal&utm_campaign=23c4e30
f36-
EMAIL_CAMPAIGN_2018_08_09_04_14_COPY_01&utm_medium=email&utm_term=0_72df992d84-
23c4e30f36-58408851, accessed on 4/6/2020, JMP)

Twelve people have died in Mississippi state prisons since the start of the new year. Nine deaths
occurred in the Mississippi State Penitentiary at Parchman. At least one was a suicide. Most were a
result of violence between inmates: beatings, stabbings and other fatal altercations.

State officials have promised to stop the violence. After news of two of those deaths broke last week,
Gov. Tate Reeves, a Republican who took office earlier this month, said he would work “around the
clock” with the state Department of Corrections to “respond immediately” and prevent new incidents
“going forward.”

What’s striking about this situation is how little of it is new. The Parchman prison, which dates to 1904,
has a long and infamous history of violence and abuse. It also has a history of reform. But no amount of
change has been able to break the cycle of brutality. And why would it? The history of Parchman is a
prime example of how dehumanization and neglect are intrinsic to separating people from their
freedom.

The Mississippi of the late 19th century was a rigid apartheid state, its criminal justice system defined by
cruel, gratuitous punishment. Black suspects bore the brunt of state violence. Often arrested for petty
crimes like theft, gambling and “vagrancy” — traveling without a work permit or evidence of a job —
black Mississippians were given hefty fines and lengthy sentences. They were then leased out to private
companies for de facto slave labor on railroads and plantations. Conditions were abysmal.

“The prisoners ate and slept on bare ground, without blankets or mattresses, and often without
clothes,” writes the historian David Oshinsky in “Worse Than Slavery: Parchman Farm and the Ordeal of
Jim Crow Justice.” “Convicts dropped from exhaustion, pneumonia, malaria, frostbite, consumption,
sunstroke, dysentery, gunshot wounds, and ‘shackle poisoning’ (the constant rubbing of chains and leg
irons against bare flesh).” In the 1880s, Oshinsky notes, the annual mortality rate for Mississippi’s
convict population ranged from 9 percent to 16 percent.

Convict leasing was on the wane by the turn of the last century, but Mississippi’s white elite was still
obsessed with “Negro crime.” Enter Gov. James K. Vardaman. Elected in 1903 on a demagogic platform
of rural chauvinism and white supremacy — he promised to tax the planters, give aid to the (white) poor
and turn back “social equality” — Vardaman was a kind of reformer. He opposed convict leasing as a
public giveaway to wealthy landowners and an oppressive burden on impoverished offenders, including
blacks.

“Vardaman would spend a lifetime fighting to deny blacks political rights and social equality,” explains
Oshinsky, “Yet he also believed that Negroes who accepted their lowly place in the human order should
be protected from abuse.”

Vardaman wanted a prison that would socialize black criminals into, as Oshinsky paraphrases the idea,
“proper discipline, strong work habits, and respect for white authority.” He also wanted it to turn a
profit. Under his leadership, the state cleared thousands of acres near the Yazoo-Mississippi Delta in an
area called Parchman place, named after the family that had owned it for years. Workers planted crops
and constructed prison buildings. The Parchman Penitentiary was born. By the 1910s it was self-
sufficient, operating on the same principles as an antebellum plantation, with black convict laborers
supervised by white overseers, although the share of white prisoners would increase with time.

Parchman would, in short order, become notorious for its hard labor and brutality. (The blues musician
Bukka White immortalized his experience of the prison in a 1940 song, “Parchman Farm Blues.”) Inmates
slept on dirt floors. Violence was common. In 1954 officials added a maximum security unit where one
prisoner recalled, “they just beat the living crap out of you.” Serious reform would come after the Civil
Rights movement with Gates v. Collier, a class-action lawsuit filed in 1971 on behalf of four inmates but
constructed with testimony from hundreds of prisoners. They attested to murders, rapes, beatings and
tortures — one inmate, Danny Bennett, died after he was shocked with cattle prods and left unconscious
under the sun in 100-degree heat. They also spoke to poor conditions, from open sewage and polluted
water supplies to “kitchens overrun with insects, rodents, and the stench of decay.” A federal judge
would describe the prison as “unfit for human habitation.”

Decided for good in 1974, Gates would essentially create minimum standards for incarceration in the
United States. At Parchman, this meant desegregation and civilian guards, freedom of worship,
minimum living space and an end to forced labor. It also spurred the state of Mississippi to create a
Department of Corrections to oversee its penal facilities.

But reform had limits. New facilities and professional staff doesn’t change the fact that prisons are a
place of confinement, where society isolates many of its least-wanted and most vulnerable members. By
the 1990s, according to a report from the American Civil Liberties Union, death row prisoners at
Parchman — renamed Mississippi State Penitentiary — reported “profound isolation, unrelieved
idleness and monotony, denial of exercise, intolerable stench and pervasive filth, grossly malfunctioning
plumbing, and constant exposure to human excrement.” H.I.V. positive prisoners in the general
population told lawyers from the A.C.L.U. that they “were living in squalor, categorically segregated
from the rest of the prison population, and barred from all prison educational and vocational programs
and jobs.” Assaults between inmates, often part of rival gangs, remained common.

Parchman is hardly alone in its history of violence and neglect. If anything, it’s just an extreme example
of conditions that occur throughout American prisons. Even so, there’s worse. Last year, the
Department of Justice released a 56-page report on the Alabama prison system, where guards are few
and far between and where prisoners experience high rates of homicide and sexual assault, where —
The New York Times reported — “One prisoner had been dead for so long that when he was discovered
lying face down, his face was flattened.” The nation’s jails — local facilities where arrestees are placed
pending trial or sentencing — aren’t much better. According to the most recent data, a 2015 report from
the Bureau of Justice Statistics, 1,053 people died in local jails in 2014. The leading cause, suicide,
accounted for 35 percent of those deaths.

Change, for Parchman and other facilities, will almost certainly come. We should understand, however,
that reform is only ever temporary. There’s only so much you can do within the paradigm of
incarceration. A prison may or may not be humane, but it will always be dehumanizing. The isolation,
the lack of liberty — the separation from family and community — are antithetical to human life. In
which case, the only way to “fix” a problem like the American prison system is to end it. But for an
unequal, racially stratified country like ours, that destination is on the far horizon, if it’s on the horizon at
all.
 --- EXT: LWOP is Death Sentence

LWOP is a death sentence that doesn’t permit redemption or reform for individuals –
similar in many ways to death penalty
Nellis, 13 --- Senior Research Analyst at The Sentencing Project (Winter 2013, Ashley, “SYMPOSIUM:
THE FUTURE OF THE DEATH PENALTY IN AMERICA: ARTICLE: Tinkering with Life: A Look at the
Inappropriateness of Life Without Parole as an Alternative to the Death Penalty,” 67 U. Miami L. Rev.
439, Nexis Uni via Umich Libraries, JMP)

VI. Conclusion

Life without parole is effectively a death sentence ; to consider it as anything less severe is a mistake.
Even though one's death may not occur for a few decades or more does not mean that the government
has not decided how and where the individual will die. When looked at from this view, LWOP is not so
different from the death penalty. Moreover, in both an execution and a life sentence without the
possibility of parole, there is no hope for redemption or reform, despite the reality that many people
turn away from their criminal pasts and go on to lead law-abiding lives where they could contribute in a
positive way to society. Neither of these two sentences allow for this possibility, however. Both the
death penalty and LWOP are terminal sentences and guarantee that the prisoner will die in prison.

Death penalty abolitionists are in a difficult position. Victories in eliminating the sentence have only
been successful in recent years despite efforts that span the last several decades. Advocates to eliminate
LWOP can sympathize with the challenges inherent in this effort and know that most abolitionists
privately consider LWOP to be an excessive punishment as well. Yet everyone agrees that if forced to
choose between a death sentence and LWOP, life without parole is the preferred sentence.

Ultimately, however, neither sentence is appropriate in a corrections system that has the ability to
reform lives as ours does. Our society demands fair and just sentences that keep the public safe, apply a
reasonable amount of punishment, and attempt to reform the offender so that he or she can be safely
returned to the community. Neither the death penalty nor LWOP accomplish these goals.
 --- EXT: LWOP => Prison Overcrowding

LWOP sentences fuel prison overcrowding

Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.173, JMP)

Should we really be sentencing so many thousands of people to life sentences? These lengthy sentences
have a disproportionate impact on our prison populations. To reduce mass incarceration, it is
important to focus on lengthy prison sentences. After all, one person serving a ten-year sentence
occupies the same amount of prison space as ten people serving one-year sentences. Moreover, due to
life sentencing and other lengthy sentencing, our prisoners are generally aging. According to the federal
Bureau of Justice Statistics, the number of persons fifty-five years or older sentenced to more than one
year in prison surged 400 percent between 1993 and 2013, to over 130,000. These elderly prisoners
have greatly increased burdens on medical care, and states have only begun to adopt meaningful
programs for early release of geriatric patients or “compassionate release” of dying prisoners.12
 --- AT: Better Lawyering Resolves the Impact

Better lawyering can’t help resolve many LWOP sentences --- judges have to
implement mandatory sentences
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.173-174,
JMP)

The U.S. Supreme Court considered whether life without parole is constitutional under the Eighth
Amendment or is in fact cruel and unusual punishment. It has struck down automatic LWOP sentences
for juveniles and for persons who were under eighteen years old when they committed the offenses.
Such sentences cannot be mandatory. The court added in its 2016 ruling in Montgomery v. Louisiana
that a juvenile’s crimes must reflect “permanent incorrigibility,” and that juvenile LWOP should be
reserved for only “the rarest offenders.”13 For juveniles, these rulings mean that an LWOP case now
looks more like a death penalty case, with an opportunity to present mitigating evidence. Now juveniles
will need defense teams with mitigation expertise to handle those cases. In some states, hundreds of
new sentencing hearings must be held. Some state courts have already ruled that imposing an LWOP on
a juvenile should be rare, and others have extended the same reasoning to sentences that are so long
that they are de facto life sentences.14 Death penalty lawyers and nonprofits are increasingly working to
teach lawyers how to do mitigation and life history investigations in LWOP cases. Good investigation and
lawyering will matter in far more cases, which will provide new opportunities and new challenges.

While better lawyering impacts the death penalty, and now it will impact juvenile LWOP, better
lawyering cannot readily impact widespread mandatory sentences, which are binding even on judges.
Federal judges have chafed at the harshness and inflexibility of mandatory minimums and also at harsh
recommendations of the federal sentencing guidelines. A bipartisan coalition of lawmakers has pushed
federal legislation to undo mandatory life sentences in drug cases, citing the billions in costs, the racial
disparities, and the excessiveness of the sentences.15 Far more should be done to permit lawyers to
make the case for their individual client and for judges to exercise flexibility in sentencing.
 1nc Marginal Deterrence / AT: Innocents Convicted

Capital punishment is necessary to preserve an effective system of marginal

deterrence that reduces the incidence of the most egregious crimes like murder --- the
benefits outweigh the risk of executing an innocent person
Zycher, 19 --- Resident Scholar at the American Enterprise Institute (7/30/19, Benjamin, “Capital
punishment and the conservative dilemma: Marginal deterrence vs. the perverse incentives of
prosecutors,” https://www.aei.org/politics-and-public-opinion/criminal-justice/capital-punishment-and-
the-conservative-dilemma-marginal-deterrence-vs-the-perverse-incentives-of-prosecutors/, accessed on
4/15/2020, JMP)

For conservatives the issue of capital punishment, whether imposed at the state or federal level,
confronts a dilemma much more fundamental. On the one hand, an effective system of capital
punishment is necessary to rationalize the system of penalties for greater and lesser crimes, that is, to
preserve an effective system of “marginal deterrence.” On the other hand, the traditional conservative
skepticism of government power generally, and of the perverse incentives of prosecutors in particular,
might lead toward a net conservative opposition to capital punishment, the imposition of which cannot
be limited in those cases in which the innocent are convicted wrongfully. The discussion here attempts
to find a route escaping this dilemma.

With respect to marginal deterrence, consider for example the case in California of Jesse James
Hollywood. (Yes, that is his real name.) He is serving a life sentence (without the possibility of parole) for
the kidnapping and murder of 15-year-old Nicholas Markowitz in August 2000. After Hollywood “called
his lawyer and learned the severe penalty for kidnapping, police say, the young men decided they had to
kill Nicholas” (Los Angeles Times, August 26, 2001).

In other words, since the penalty for kidnapping was a life sentence, or close to it, the marginal (or
“extra”) penalty for murdering the young and innocent Markowitz was perceived to be small or zero, in
that the actual application of capital punishment in California was and remains both unusual and subject
to long delay.

More generally: If a criminal faces a life term for a given crime, and if there is no effective threat of a
death sentence, why not get rid of the witnesses? Stiff penalties and other policies are likely to deter
crimes, as suggested by the scholarly literature, but if the structure of the penalty system makes even
stiffer penalties difficult to impose, that structure actually can encourage crimes even more egregious.

Such crimes as attempted murder, aggravated rape, or kidnapping for ransom are so egregious that they
appropriately carry very stiff penalties approximating life sentences. In the absence of capital
punishment, that necessarily reduces the marginal penalties for offenses even worse , a state of affairs
that can be predicted to increase the rate at which such terrible crimes are committed .

One way around this deterrence problem is to reduce penalties for the large array of lesser crimes so as
to preserve marginal deterrence for the more serious ones. But that would yield an increase in the rate
at which the lesser crimes — many of which are hardly trivial — are committed, and might actually
increase the rate at which the truly serious crimes are observed, in that some offenses, such as
unplanned killings of convenience store clerks, are outcomes of lesser felonies. In short, an attempt to
preserve marginal deterrence by reducing penalties across the board is likely to increase serious crime
generally and the taking of innocent life. Therefore, a society serious about deterring egregious crimes
generally and murders in particular, and anxious to use punishment as a moral expression of the value
of innocent life, must have an effective system of capital punishment.

But: Can there be any doubt that prosecutors have perverse incentives to hide exculpatory evidence, to
suborn perjury, and to use plea bargaining as a hammer to induce the accused to plead guilty so as to
avoid penalties even more severe, including capital punishment? I betray no secret when I report that
many prosecutors are loath to allow new evidence to threaten their prior conviction “victories,” the
pursuit of justice be damned. It often is asserted that prosecutors have an ethical obligation not to
threaten filing of capital charges in order to obtain a plea bargain in exchange for, say, a life sentence.
How this ethical constraint is to be implemented in practice is far from obvious. More generally: That
prosecutors often are elected and have ambitions for higher office create incentives far from salutary in
the context of the fundamental pursuit of justice rather than convictions.

In the absence of capital punishment, a second conceptual solution to the problem of marginal
deterrence would be a Soviet-style system of general-, strict-, and special-regime prisons offering
inmates declining standards of comfort in inverse proportion to the seriousness of the crimes
committed. Even the general-regime prisons were brutal, and it is not obvious that inmates would prefer
years in a special-regime facility to a quick execution. Obviously, such a prison system would violate
traditional norms of American morality, and the courts would be unlikely anyway to uphold it as
consistent with the 8th Amendment.

The goal is to preserve marginal deterrence while limiting the effects of perverse prosecutorial
incentives. A third solution to this conundrum — consistent with the moral pursuit of justice and the
preservation of political support for capital punishment — would be that those accused of capital crimes
be given the resources, say, $750,000 or whatever the funding necessary for a serious defense and
appellate process. (Whether such funding would be need-based and other administrative details are not
of direct concern here.) This hardly would be an important fiscal burden in an economy with a GDP
approximating $20 trillion. Such a political compromise restoring an effective system of capital
punishment might also include a new state or federal court of appeal specializing in capital cases,
combined with strict time limits on the number and length of appeals. This new court would be
subordinate to the Supreme Court, but it is likely that the latter would accept few or no appeals from
the former.

The common argument that a humane society cannot risk even one execution of an innocent is
misguided: Just as most of us risk death daily in order to drive automobiles, participate in extreme
sports, or watch the Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the
infinitesimal risk of wrongful execution in order to obtain the far more important reductions in serious
crime that an effective system of capital punishment makes possible . Capital punishment is an
extremely difficult business. The alternative is worse.
 --- EXT: Yes Deterrence

Majority of studies prove the death penalty deters – each execution results in 18
fewer murders
Muhlhausen, 14 --- Ph.D. & Research Fellow in Empirical Policy Analysis at the Heritage Foundation
(9/30/2014, David B., “How the Death Penalty Saves Lives,” https://www.heritage.org/civil-
society/commentary/how-the-death-penalty-saves-lives, accessed on 3/11/2020, JMP)

On Sept. 10, Earl Ringo Jr. was executed in Missouri. Before you decide whether or not this is right,
consider what Ringo did.

In July 1998, Ringo and an accomplice planned to rob a restaurant where Ringo had previously worked.
Early one morning, they followed delivery truck driver Dennis Poyser and manager-in-training Joanna
Baysinger into the building before shooting Poyser to death and forcing Baysinger to hand over $1,400.
Then, Ringo encouraged his partner to kill her. A jury convicted Ringo of two first-degree murders.

Some crimes are so heinous and inherently wrong that they demand strict penalties – up to and
including life sentences or even death. Most Americans recognize this principle as just.

A Gallup poll from May on the topic found that 61 percent of Americans view the death penalty as
morally acceptable, and only 30 percent disagreed. Even though foes of capital punishment have for
years been increasingly vocal in their opposition to the death penalty, Americans have consistently
supported capital punishment by a 2-to-1 ratio in murder cases. They are wise to do so.

Studies of the death penalty have reached various conclusions about its effectiveness in deterring crime.
But a 2008 comprehensive review of capital punishment research since 1975 by Drexel University
economist Bijou Yang and psychologist David Lester of Richard Stockton College of New Jersey
concluded that the majority of studies that track effects over many years and across states or counties
find a deterrent effect.

Indeed, other recent investigations, using a variety of samples and statistical methods, consistently
demonstrate a strong link between executions and reduced murder rates. For instance, a 2003 study
by Emory University researchers of data from more than 3,000 counties from 1977 through 1996 found
that each execution, on average, resulted in 18 fewer murders per county. In another examination,
based on data from all 50 states from 1978 to 1997, Federal Communications Commission economist
Paul Zimmerman demonstrated that each state execution deters an average of 14 murders annually.

A more recent study by Kenneth Land of Duke University and others concluded that, from 1994 through
2005, each execution in Texas was associated with "modest, short-term reductions" in homicides, a
decrease of up to 2.5 murders. And in 2009, researchers found that adopting state laws allowing
defendants in child murder cases to be eligible for the death penalty was associated with an almost 20
percent reduction in rates of these crimes.

In short, capital punishment does, in fact, save lives. That's certainly not to say that it should be
exercised with wild abandon. Federal, state and local officials must continually ensure that its
implementation rigorously upholds constitutional protections, such as due process and equal protection
of the law. However, the criminal process should not be abused to prevent the lawful imposition of the
death penalty in capital cases.

Moral indignation is an appropriate response to inherently wrongful conduct, such as that carried out
by Earl Ringo Jr. While the goal of lower crime through deterrence is worthwhile, lawmakers need to
place special emphasis on the moral gravity of offenses in determining the proportionality of
punishment.

The execution of Ringo was morally just. And it may just save the lives of several innocents.
 AT: Torture

Non-innocent people don’t deserve the same protection from torture – it can be
justified to prevent larger atrocities
McMahan, 15 --- White’s Professor of Moral Philosophy at the University of Oxford (1/26/15,
Interviewed by Gary Gutting - professor of philosophy at the University of Notre Dame, Jeff McMahan,
“Can Torture Ever Be Moral?” https://opinionator.blogs.nytimes.com/2015/01/26/can-torture-ever-be-
moral/, accessed on 5/1/2020, JMP)

G.G.: Absolutists might object that you’re just assuming that actions should be judged by their
consequences, whereas they think at least some actions are immoral in themselves, apart from their
consequences. Is this just a case of conflicting basic moral intuitions, with no way of resolving the issue?

J.M.: I don’t think so. Thus far I have criticized absolutism about torture on the ground that it has to
draw a sharp line between acts that are prohibited, regardless of their consequences, and acts that may
or may not be prohibited depending partly on their consequences. But I don’t think that only the
consequences matter. I have said that it might be permissible to torture a terrorist to force him to reveal
the location of a bomb or a hostage, but that would be quite different from torturing the terrorist’s child
as a means of extracting the same information. In planting the bomb or capturing the hostage, the
terrorist makes himself morally liable to be harmed as a means of preventing him from harming
innocent people. But his child has done nothing to become liable to be tortured as a means of saving the
parent’s potential victims.

The most important objection to the claim that all torture is absolutely prohibited is that it does not
distinguish between the torture of wrongdoers and the torture of the innocent. The British philosopher
Elizabeth Anscombe was a moral absolutist but she appreciated that absolute prohibitions have to
take account of whether intended victims are innocent or non-innocent. Thus, while she believed that
the intentional killing of innocent people is absolutely prohibited, she was scornful of absolute pacifism,
which, she argued, “teaches people to make no distinction between the shedding of innocent blood and
the shedding of any human blood…and in this way…has corrupted enormous numbers of people.”
Absolutists about torture, who say that it can never be justified, make the same mistake. As I
indicated earlier, because most of them believe that it can be permissible to kill a person to prevent
him from committing murder and also that it can be less bad for a person to be tortured than to be
killed, they should concede that it can be permissible to torture a person to prevent him from
committing murder. Apart from the fact that killing is usually worse, the only significant difference
between killing in defense of the innocent and torturing in defense of the innocent is that torture can
only very, very rarely be used defensively.

Even torture has to be evaluated in a utilitarian manner

McMahan, 15 --- White’s Professor of Moral Philosophy at the University of Oxford (1/26/15,
Interviewed by Gary Gutting - professor of philosophy at the University of Notre Dame, Jeff McMahan,
“Can Torture Ever Be Moral?” https://opinionator.blogs.nytimes.com/2015/01/26/can-torture-ever-be-
moral/, accessed on 5/1/2020, JMP)

G.G.: We’ve been using the term “torture” without defining it. Is it enough to work with clear cases of
what is and of what is not torture (locking a prisoner in a cell versus beating him) or do moralists have to
get into fine points about exactly what constitutes torture?

J.M.: Both moralists and legal theorists must go into the fine details. There are many reasons why
paradigm instances of torture are objectionable: the sheer awfulness of suffering; the humiliation,
terror, and dehumanization; the psychological scarring; the various forms of betrayal – of others, one’s
ideals, and oneself – and so on. The moral evaluation of torture in a particular instance may depend on
which elements are present and to what degree. Torture is not all or nothing: Some instances are worse
than others, and at the lower end of the spectrum torture shades gradually into forms of harming that
are horrible but do not rise quite to the level of torture. It is one of the problems of the absolutist view
of torture that it has to identify some threshold on the scale that measures the elements of torture,
such as suffering, and then claim that nothing, not even the prevention of a billion murders, can justify
the infliction of that degree of harm, even on a wrongdoer. But the view does not absolutely prohibit
the infliction of the highest degree of harm below the threshold. It has to concede that the infliction of
that degree of harm can be permissible, even to prevent harms far less bad than the murder of a billion
people. The idea that there is such a threshold is wholly implausible.
 1nc Util

Reducing existential risks is the top priority in any coherent moral theory, not just Util
Plummer, PhD, 15 (Theron, Philosophy @St. Andrews
http://blog.practicalethics.ox.ac.uk/2015/05/moral-agreement-on-saving-the-world/)
There appears to be lot of disagreement in moral philosophy. Whether these many apparent disagreements are deep and irresolvable, I believe
there is at least one thing it is reasonable to agree on right now, whatever general moral view we adopt: that it is
very important to reduce the risk that all intelligent beings on this planet are eliminated by an enormous catastrophe,
such as a nuclear war. How we might in fact try to reduce such existential risks is discussed elsewhere. My claim here is only that we –
whether we’re consequentialists, deontologists, or virtue ethicists – should all agree that we should try
to save the world. According to consequentialism, we should maximize the good, where this is taken to be the goodness, from an
impartial perspective, of outcomes. Clearly one thing that makes an outcome good is that the people in it are doing well. There is little
disagreement here. If the happiness or well-being of possible future people is just as important as that of people who already exist, and if they
would have good lives, it is not hard to see how reducing existential risk is easily the most important thing in the whole world. This is for the
familiar reason that there are so many people who could exist in the future – there are trillions upon trillions… upon trillions. There
are so
many possible future people that reducing existential risk is arguably the most important thing in the
world, even if the well-being of these possible people were given only 0.001% as much weight as that of existing people. Even on a
wholly person-affecting view – according to which there’s nothing (apart from effects on existing people) to be said in favor of
creating happy people – the case for reducing existential risk is very strong . As noted in this seminal paper, this case is
strengthened by the fact that there’s a good chance that many existing people will, with the aid of life-extension technology, live very long and
very high quality lives. You
might think what I have just argued applies to consequentialists only. There is a
tendency to assume that, if an argument appeals to consequentialist considerations (the goodness of
outcomes), it is irrelevant to non-consequentialists . But that is a huge mistake. Non-consequentialism is
the view that there’s more that determines rightness than the goodness of consequences or outcomes; it is not
the view that the latter don’t matter . Even John Rawls wrote, “All ethical doctrines worth our attention
take consequences into account in judging rightness. One which did not would simply be irrational , crazy.”
Minimally plausible versions of deontology and virtue ethics must be concerned in part with
promoting the good, from an impartial point of view. They’d thus imply very strong reasons to reduce
existential risk, at least when this doesn’t significantly involve doing harm to others or damaging one’s character. What’s even more
surprising, perhaps, is that even if our own good (or that of those near and dear to us) has much greater weight than goodness from the
impartial “point of view of the universe,” indeed even if the latter is entirely morally irrelevant, we may nonetheless have very strong reasons
to reduce existential risk. Even egoism, the view that each agent should maximize her own good, might imply strong reasons to
reduce existential risk. It will depend, among other things, on what one’s own good consists in. If well-being consisted in pleasure only,
it is somewhat harder to argue that egoism would imply strong reasons to reduce existential risk – perhaps we could argue that one would
maximize her expected hedonic well-being by funding life extension technology or by having herself cryogenically frozen at the time of her
bodily death as well as giving money to reduce existential risk (so that there is a world for her to live in!). I am not sure, however, how strong
the reasons to do this would be. But views which imply that, if I don’t care about other people, I have no or very little reason to help them are
not even minimally plausible views (in addition to hedonistic egoism, I here have in mind views that imply that one has no reason to perform an
act unless one actually desires to do that act). To be minimally plausible, egoism will need to be paired with a more sophisticated account of
well-being. To see this, it is enough to consider, as Plato did, the possibility of a ring of invisibility – suppose that, while wearing it, Ayn could
derive some pleasure by helping the poor, but instead could derive just a bit more by severely harming them. Hedonistic egoism would absurdly
imply she should do the latter. To avoid this implication, egoists would need to build something like the meaningfulness of a life into well-being,
in some robust way, where this would to a significant extent be a function of other-regarding concerns (see chapter 12 of this classic intro to
ethics). But once these elements are included, we can (roughly, as above) argue that this sort of egoism will imply strong reasons to reduce
existential risk. Add to all of this Samuel Scheffler’s recent intriguing arguments (quick podcast version available here) that most of what
makes our lives go well would be undermined if there were no future generations of intelligent persons. On
his view, my life would contain vastly less well-being if (say) a year after my death the world came to an end. So obviously if Scheffler were
right I’dhave very strong reason to reduce existential risk . We should also take into account moral
uncertainty. What is it reasonable for one to do, when one is uncertain not (only) about the empirical facts, but
also about the moral facts? I’ve just argued that there’s agreement among minimally plausible ethical views that we have strong reason to
reduce existential risk – not only consequentialists, but also deontologists, virtue ethicists, and sophisticated egoists should agree. But even
those (hedonistic egoists) who disagree should have a significant level of confidence that they are mistaken,
and that one of the above views is correct. Even if they were 90% sure that their view is the correct one (and 10% sure
that one of these other ones is correct), they would have pretty strong reason, from the standpoint of moral
uncertainty, to reduce existential risk. Perhaps most disturbingly still, even if we are only 1% sure that the well-
being of possible future people matters, it is at least arguable that, from the standpoint of moral uncertainty, reducing
existential risk is the most important thing in the world . Again, this is largely for the reason that there are so
many people who could exist in the future – there are trillions upon trillions… upon trillions. (For more on this and other
related issues, see this excellent dissertation). Of course, it is uncertain whether these untold trillions would, in
general, have good lives. It’s possible they’ll be miserable. It is enough for my claim that there is moral agreement in
the relevant sense if, at least given certain empirical claims about what future lives would most likely be
like, all minimally plausible moral views would converge on the conclusion that we should try to save the
world. While there are some non-crazy views that place significantly greater moral weight on avoiding suffering than on promoting
happiness, for reasons others have offered (and for independent reasons I won’t get into here unless requested to), they nonetheless seem to
be fairly implausible views. And even if things did not go well for our ancestors, I am optimistic that they will
overall go fantastically well for our descendants, if we allow them to . I suspect that most of us alive today – at
least those of us not suffering from extreme illness or poverty – have lives that are well worth living, and that things will
continue to improve. Derek Parfit, whose work has emphasized future generations as well as agreement in ethics, described our
situation clearly and accurately: “We live during the hinge of history. Given the scientific and technological discoveries of the last two centuries,
the world has never changed as fast. We shall soon have even greater powers to transform, not only our surroundings, but ourselves and our
successors. If we act wisely in the next few centuries, humanity will survive its most dangerous and decisive period. Our descendants could, if
necessary, go elsewhere, spreading through this galaxy…. Our descendants might, I believe, make the further future very good. But that good
future may also depend in part on us. If our selfish recklessness ends human history, we would be acting very wrongly.” (From chapter 36 of On
What Matters)

A focus on purely intent based frameworks crush our ability to respond to violence.
McCluskey 12 – JSD @ Columbia, Professor of Law @ SUNY-Buffalo (Martha, “How the "Unintended
Consequences" Story Promotes Unjust Intent and Impact,” Berkeley La Raza, doi:
dx.doi.org/doi:10.15779/Z381664)

By similarly making structures of inequality appear beyond the reach of law reform, the "unintended
consequences" message helps update and reinforce the narrowing of protections against intentional
racial harm. Justice is centrally a question of whose interests and whose harms should count, in what context and
in what form and to whom. Power is centrally about being able to act without having to take harm to others

into account . This power to gain by harming others is strongest when it operates through systems and
structures that make disregarding that harm appear routine, rational, and beneficial or at least acceptable or
perhaps inevitable. By portraying law's unequal harms as the "side effects" of systems and structures with unquestionable "main effects," the
"unintended consequences" story helps affirm the resulting harm even as it seems to offer sympathy and technical
assistance. In considering solutions to the financial market problems, the policy puzzle is not that struggling homeowners' interests are
overwhelmingly complex or uncertain. Instead, the bigger problem is that overwhelmingly powerful interests and ideologies are actively
resisting systemic changes that would make those interests count. The failure to criminally prosecute or otherwise severely penalize high-level
financial industry fraud is not primarily the result of uncertainty about the harmful effects of that fraudulent behavior, but because the political
and justice systems are skewed to protect the gains and unaccountability of wealthy executives despite the clear harms to hosts of others. The
unequal effects of the prevailing policy response to the crisis are foreseeable and obvious, not accidental or
surprising. It would not take advanced knowledge of economics to readily predict that modest-income homeowners would tend to be far
worse off than bank executives by a policy approach that failed to provide substantial mortgage forgiveness and foreclosure protections for
modest-income homeowners but instead provided massive subsidized credit and other protections for Wall Street. Many policy actions likely to
alleviate the unequal harm of the crisis similarly are impeded not because consumer advocates, low-income homeowners, or racial justice
advocates hesitate to risk major changes in existing systems, or are divided about the technical design of alternative programs or more effective
mechanisms for enforcing laws against fraud and racial discrimination. Instead, the problem is that these voices pressing for effective change
are often excluded, drowned out or distorted in Congress and in federal agencies such as the Treasury Department and the Federal Reserve, or
in the media, in the mainstream economics profession, and to a large extent in legal scholarship about financial markets. More generally, those
diverse voices from the bottom have been largely absent or marginalized in the dominant theoretical framework that constructs widespread
and severe inequality as unforeseeable and largely inevitable, or even beneficial. Moreover, justice
requires careful attention to
both harmful intent and to complex harmful effects . But the concept of "unintended consequences"
inverts justice by suggesting that the best way to care for those at the bottom is to not care to make law
more attentive to the bottom. "Unintended consequences" arguments promote a simplistic moral
message in the guise of sophisticated intellectual critique-the message that those who lack power should not seek it
because the desire for more power is what hurts most. Further, like Ayn Rand's overt philosophy of selfishness, that
message promotes the theme that those who have power to ignore their harmful effects on others
need not-indeed should not-be induced by law to care about this harm , because this caring is what is harmful. One
right-wing think tank has recently made this moral message more explicit with an economic values campaign suggesting that the intentional
pursuit of economic equality is a problem of the immoral envy of those whose economic success proves they are more deserving.169 Legal
scholars and advocates who intend to put intellectual rigor and justice ahead of service to financial elites
should reject stories of "unintended consequences" and instead scrutinize the power and laws that
have so effectively achieved the intention of making devastating losses to so many of us seem natural,
inevitable, and beneficial.

Uncertainty and social contract require governments use util

Gooden, 1995 (Robert, philsopher at the Research School of the Social Sciences, Utilitarianism as
Public Philosophy. P. 62-63)

Public officials are obliged to make their choices under uncertainty, and
Consider, first, the argument from necessity.
All choices—public and private alike—are made under some degree of
uncertainty of a very special sort at that.
uncertainty, of course. But in the nature of things, private individuals will usually have more complete
information on the peculiarities of their own circumstances and on the ramifications that alternative possible choices
might have on them. Public officials, in contrast, are relatively poorly informed as to the effects that their
choices will have on individuals, one by one. What they typically do know are generalities: averages and
aggregates. They know what will happen most often to most people as a result of their various possible
choices. But that is all. That is enough to allow public policy-makers to use the utilitarian calculus —if they want
to use it at all—to choose general rules of conduct. Knowing aggregates and averages, they can proceed to
calculate the utility payoffs from adopting each alternative possible general rules.
Progressive Opposition DA
 Notes

There is a lot of overlap between this argument and the more traditional “Hollow Hope Disadvantage”
so you should supplement the file with evidence from it if/when it is released.

There are at least two different elements to this argument:

 Liberal/progressive opposition is increasing to the conservative courts and that will encourage
them to avoid overreach. Policies like the plan, which are popular with progressives, will quell
opposition that is necessary to moderate courts. Without this the conservative Court will allow
many harmful actions, including the degradation of democracy
 Judicial strategies are costly in terms of resources that could be more effectively allocated to
persuading voters to adopt new policies through the elected branches. This is part of a theme
that runs through several pieces of evidence --- change through elected bodies are more
democratic and sustainable (judicial decisions that occur before the public is ready lead to
backlash). If you ever extend the disad without a counterplan you could frame this as a “disad
that will eventually solve the case.” This is represented in the 1nc Margulies ev and two good
pieces of extension evidence from Garrett.

Evidence you should definitely consider reading when extending the disad

 Moyn, 20 (AT: This is a Good Judicial Policy)

 Moyn, 18 (2nc Link – Opportunistic Collusion)
 Stern, 18 (2nc Link – Progressive Victories)
 Sprigman, 18 (first card in AT: Courts are Progressive / Can Be Reformed)
 Levitt, 18 (2nc Uniqueness) --- a bit older but still good for the structural uniqueness claim about
democracy being renewed by reaction to the Court post-Kavanaugh
 1nc DA Progressive Opposition

Progressive opposition to the Court is uniquely ramping up now --- the institution has
undercut progressive goals for decades and judicial strategies deplete limited
resources that can be used more effectively in other tactics
McElwee, 18 --- writer and researcher based in New York City and a co-founder of Data for Progress
(10/25/18, Sean, “The Fight For The Supreme Court Is Just Beginning,”
https://www.huffingtonpost.com/entry/opinion-supreme-court-
progressives_us_5bd09cd4e4b0a8f17ef34d1c, accessed on 12/19/18, JMP)

Brett Kavanaugh is an associate justice of the Supreme Court, his confirmation solidifying a five-vote
majority for the court’s extreme conservatives. Progressives are bracing themselves for the effects of a
fully empowered right-wing court, and so they should. Yet most Americans are unaware of how deeply
the court has already damaged American society, even without a conservative majority.

Over the past two decades, the extremist court has resegregated schools, made it easier for abusive
cops to avoid punishment, weakened protections for survivors, poisoned children, empowered racist
vote suppressors and even thrown elections ― including the presidency ― to the Republican Party.
Now, the limited restraints offered by Justice Anthony Kennedy have disappeared, and the threat is
even greater.

There is, however, one difference between the past two decades and now: Progressives are
finally paying attention.
The Supreme Court has rarely been a force for progress. In its most famous and popular decisions —
such as Brown, Griswold and Obergefell — the court largely hedged its bets and acted after social
movements had already paved the way. It has rarely acted, much less acted effectively, without
support from the legislative and executive branches. Of course, the court can and sometimes
does promote progressive change, but it’s a narrower avenue for change than
many people assume. And pursuing that change in court often means investing
less in other tactics because lawsuits are costly and resources are limited.
Nonetheless, progressives have waged their battles primarily before the court ―
clinging to what Gerald Rosenberg called The Hollow Hope ― instead of taking issues directly
to voters. Measures like Amendment 4 in Florida to restore voting rights, automatic voter registration
in Alaska and right-to-work repeal in Missouri suggest that taking our issues directly to voters is
effective. Across the country, direct democracy and organizing have reaped
rewards, while the courts — and in particular the Supreme Court — have
remained a “hollow hope.”
The costs of over-investing in this uphill legal strategy have been immense but largely unseen. Money
that pays high-priced lawyers can’t fund canvassers and signature collectors. And talented progressives
who go to law school generally don’t become organizers; many, burdened by student debt, get stuck on
the corporate track, where they may well perpetuate injustice by defending corporate interests.

Meanwhile, the right, knowing that its agenda is deeply unpopular, has turned to the courts to
override the popular will, aggressively filing lawsuits that will be ruled on by radical right-wing judges.
And while the right has recruited and empowered armies of political operatives to wage war on behalf
of Trumpist judges and judicial nominees, the left has relied largely on members of the academy. When
soldiers battle scholars, the soldiers win.

Because the right has weaponized the courts, progressives must do so as well. That means more
organizations like Demand Justice, with political operatives doing the dirty work, and more local
organizers ready and able to pressure key senators during close confirmation votes and in response to
bad court decisions.

This effort must be built from the ground up because few cases reach the Supreme Court. Far-right
lower court judges like the George W. Bush-appointed Judges Edith Jones of the Court of Appeals for the
5th Circuit, William Pryor of the Court of Appeals for the 11th Circuit and Andrew Hanen of the District
Court for the Southern District of Texas should be the subject of activist scrutiny.

Hanen enjoined Deferred Action for Parents of Americans and Lawful Permanent Residents, nearly
enjoined Deferred Action for Childhood Arrivals (the Trump administration actually advised him against
it) and is one of the most anti-immigrant judges on the bench.

Jones is basically a right-wing chain email with a gavel: She once said in a speech that African-Americans
and Hispanics are “prone to commit acts of violence” and she once told a liberal colleague to “shut up.”

Pryor opposes Miranda warnings, criticized the Violence Against Women Act and believes the
government should be allowed to execute mentally ill people.

And we haven’t even discussed Bobby Shepherd, Raymond Gruender, Edward Earl Carnes, Jerry Smith,
Kyle Duncan, James Ho, Joel Fredrick Dubina and Reed O’Connor. Or birther blogger-turned-federal
appeals judge John Bush. These are just a few examples of some of the most extreme right-wing judges,
who should be household names in progressive circles. Unfortunately, there are many, many more.

Progressives should be much more aggressive about stocking these lower courts, because most
decisions end there; a liberal Supreme Court is less meaningful if the Joneses and Hanens of the world
have free rein. The next Democratic president should feel more outside pressure, about both the speed
of nominations and identities of nominees — progressives should prepare lists of potential progressive
judges just like conservatives do.

Right now, every conservative justice on the Supreme Court is a Federalist Society member and there
are even more on lower courts. But not a single federal judge owes their career — and, thus, their
allegiance — to the American Constitution Society, the Federalist Society’s closest thing to a liberal
counterpart. (I asked the ACS if there were any judges who were members of the ACS. The ACS claims
that they exist but refused to name any.)

Analysis by my think tank Data for Progress suggests that progressives have messaged poorly to
members of their base about exactly how the Supreme Court has made their lives miserable.
Progressive presidential candidates need to take the gloves off, landing punches that are both hard and
precise, and operatives should as well. The norm against attacking justices made sense when they were
nonpartisan. But Kavanaugh has shown himself to be less a judge than a partisan hatchet man, and a
predatory one at that. Democrats should attack him, track his approval ratings and regularly run ads
against him. Ideally, Democrats would be spending millions on each Supreme Court seat both during and
after confirmations fights and a few million around each major decision.

Ultimately, the court’s reputation, and thus its power, derives almost exclusively
from popular and elite opinion. If Americans understood the court to be a partisan institution,
they would demand that it act more modestly. The other branches of government have at least some
democratic legitimacy; the court does not. Chief Justice John Roberts may be a bit more of an
institutionalist than the four justices to his right, but only a bit: He did, after all, write the decisions
gutting the Voting Rights Act and upholding Trump’s Muslim ban, and he joined virtually all of the
court’s other most troubling decisions over the past decade.

Better strategic thinking about the court is a key first step, but a second step is more aggressive tactics.
Progressives must put adding justices to the court on the table. While “centrist elites” may howl,
unelected right-wing justices striking down every piece of progressive legislation threatens American
democracy far more than does a democratically elected legislature expanding the court, which has
expanded and contracted throughout American history. Project 1/20/21, an organization I work for, is
working to make this case to progressive voters.

Benches full of reactionary old white men, systematically dismantling progress, are not an inevitable
product of our Constitution; they’ve been built by decades of conservative activism. Progressives
can win this fight, but only if they understand that this is an exercise in politics,
not justice.

Sustained liberal opposition discourages the court from overreaching, but progressive
rulings renew the traditional narrative that the Court can be an honest broker
McElwee, 18 --- researcher and writer based in New York City, and co-Founder of Data for Progress
(10/10/18, Sean, “Opinion: It's Time To Go To War With The Supreme Court. Here's How.; The time has
come for the left to constrain the court and limit the power of its right-wing majority,”
https://www.buzzfeednews.com/article/seanmcelwee/time-for-left-to-go-to-war-with-the-supreme-
court, accessed on 12/13/18, JMP)

The Supreme Court is only as powerful as we allow it to be, something well expressed in the apocryphal
line attributed to Andrew Jackson: that Chief Justice John Marshall “has made his decision; now let him
enforce it.”

The court’s power has been challenged twice in more recent history, and in both cases it lost: First,
when FDR’s court-packing plan forced it to stop repealing the New Deal, and again when widespread
resistance to desegregation succeeded in slowing school integration in the South. Long before either of
these cases, Abraham Lincoln actively fought the Supreme Court’s Dred Scott v. Sandford decision,
briefly increasing the number of justices to secure emancipation.
With the court now on the verge of returning to the dark days of the Lochner era — a time when
conservatives used phony constitutional doctrines like the “freedom of contract” to strike down
commonsense New Deal–era laws on issues like child labor — the time has come for a new effort to
constrain the court and limit its power. The appointment of Brett Kavanaugh has pushed the court into
uncharted territory: There has never been a justice who was confirmed with such low favorability
numbers, nor one whose confirmation was defined by such intense partisanship.

Progressives should be concerned about a far-right Supreme Court majority, but we cannot despair —
we have options. Because of its institutional weakness, the court is constrained by public opinion and
by elite opinion. Now is the time for activist groups to assemble a constant war footing toward the
court.

That in itself would be a major change, because for a long time the court was largely seen
as an honest broker among Democrats. Research from Data for Progress suggests one reason
why: Democrats tend to talk about the court in positive terms and mostly discuss
the court when it issues decisions that liberals like, such as on the issue of marriage
equality. In contrast, Republicans have historically rallied their base by highlighting the court’s abortion
jurisprudence, which they despise, while saying very little about the consistently pro-corporate decisions
that form the core of conservative judicial activism.

In the Trump era, this warm and fuzzy Democratic view of the court shifted dramatically. In 2016, 70% of
Republicans said Supreme Court appointments were “very” important to their vote, compared with 62%
of Democrats. As of late September, 81% of Democrats said Supreme Court appointments are “very
important,” compared with 72% of Republicans.

For the first time in a decade, Americans are also more likely to see the Supreme Court as “too
conservative” rather than “too liberal” — a welcome development, but a stunning one given that the
court has been a conservative force the entire time. Many Americans think of same-sex marriage as the
defining ruling of the past decade, but they overlook the court’s gutting of the Medicaid expansion,
ending of voluntary desegregation programs, enabling of right-wing voter suppression, and crushing
of state-level public financing laws.

The shift in public opinion is good news, and it alone will act as a disincentive for
the further right-wing overreach of the court. But that’s just a starting point for the
progressive movement; there is much more work to be done.

Groups like Demand Justice should produce advertisements designed to reduce support for specific
decisions and raise awareness of how the court damages progressive constituencies. The goal should be
explicit: Pull down the favorable numbers for Justices Roberts, Alito, Thomas, Gorsuch, and the court to
negative, and make sure Brett Kavanaugh’s public support never rises from its current low. The Be a
Hero campaign to fund a challenger to Susan Collins indicates the sort of tactical innovation progressives
should pursue on this. And the protests of grassroots groups like the Center for Popular Democracy
(where a survivor of sexual assault confronted Jeff Flake in an elevator) can further influence
perceptions.
Getting cameras in the courtroom would demystify its proceedings and reveal them as little more than
law school dorm-room bull sessions — Congress can, and should, pass a law demanding it. Activists
should disrupt the events of Justices Clarence Thomas and Neil Gorsuch, who disgrace the institution
with their corruption. (Thomas’s wife is a Republican lobbyist, but he does not recuse himself from cases
she is involved in.)

These are all minor but important tactical escalations, but larger escalations should be on the table to
prevent a neo-Lochnerite court from dismantling progressive policies. Central to all of this is
understanding that Kavanaugh and company are politicians, not judges, and their goal is to wage
ideological warfare, not interpret the law. That means they must be seen as political appointees who
work under the threat of impeachment — a threat that should loom over Thomas and Kavanaugh in
particular.

Progressives should also design laws to be more difficult for the court to strike down. Complicated
expansions of the welfare state that require the participation of state and federal governments and the
private sector will always be more vulnerable to court intervention than straightforward redistributions
of wealth. And simpler government interventions will both contain fewer vulnerabilities for exploit by
conservative legal activists and be more easily understood among the general public, who will recognize
judicial misconduct if they’re overturned.

This also means front-loading the benefits of new laws — in 2012, the benefits of Obamacare hadn’t
kicked in, and striking it down would have seemed less provocative. But by 2015, when when the most
significant challenge made its way to the court, the nine justices would have been affirmatively taking
things away from millions of people, and that made it harder to gut the law. It’s important to note that
at the end of the day there is an extent to which this won’t matter as long as there is a five–four radical
conservative court.

Last, to restore some small-d democratic semblance to the court, Democrats should consider adding two
or more new justices beyond the existing nine, two of whom have been chosen by a president who lost
the popular vote and confirmed by senators representing a minority of the American public.

A Democratic president should make sure Chief Justice John Roberts is aware of these goals: He must
understand that if he strikes down a progressive law, he will be crushed. All of this will require a
significant investment of political capital from progressives, who might be wise to put these ideas on
the table and dare Roberts to overstep (as FDR did).

There are signs that Roberts is aware of these risks: Many court watchers believe the reason he sided
with the court’s four liberals to preserve the Affordable Care Act was his understanding that, were he
to overplay his hand, the court would quickly lose its legitimacy.

But just because the court has occasionally pulled back when its authority was most seriously
threatened — from the Civil War to the New Deal and Roberts’ Obamacare compromise — does not
guarantee it will do so again with its new ultra-conservative majority. Either way, the biggest reason to
worry about an illegitimate, out-of-control court is that Democrats may not be prepared to fight it.
The plan gives the Court a jolt of legitimacy --- the death penalty is a fundamental
factor undermining it
Ford, 19 (4/2/19, Matt, “The Supreme Court’s Twisted Devotion to the Death Penalty; The conservative
justices' convoluted opinions are undermining the court's legitimacy more than any confirmation battle
could,” https://newrepublic.com/article/153437/supreme-courts-twisted-devotion-death-penalty,
accessed on 4/29/2020, JMP)

Between the partisan dogfight to confirm Justice Brett Kavanaugh last fall and some Democrats’ troubling calls
for court-packing this spring, it’s been a bad few months for the Supreme Court’s legitimacy. But the
court has done itself no favors in its recent death-penalty rulings. In deciding that Bucklew had no right
to an alternative method of execution, the majority does what it increasingly feels like it must do:
mangle facts and precedent to keep the machinery of state-sanctioned death rolling. That habit may
ultimately do more harm to the court than any external force ever could.
Russell Bucklew was not challenging his conviction in the 1996 murder of a neighbor. (Bucklew’s wife had fled to the neighbor’s home one night after a series of
beatings.) Bucklew suffers from cavernous hemangioma, which causes blood-filled tumors to grow throughout his head, neck, and throat and they are too fragile to
remove through surgery. His lawyers warned the court that lethal injection could cause the tumors to rupture midway through his execution, filling his lungs with
blood and suffocating him.

Bucklew faced a daunting legal precedent. In the 2015 case Glossip v. Gross, the Supreme Court laid down a high threshold for death-row prisoners who challenge a
state’s chosen method of execution. The prisoner must prove that the method in question offers a “substantial risk of severe pain” and propose an alternative
method that would suffice. What’s more, the prisoner must also demonstrate that the alternative method is “feasible” and could be “readily implemented.”
Bucklew asked the courts to choose nitrogen hypoxia to suffocate him instead. Several states, including Missouri, have laws to authorize the method, but none have
used it yet.

Gorsuch spent part of the opinion disputing testimony by Dr. Joel Zivot, an anesthesiologist who appeared on Bucklew’s behalf in the district court. Zivot warned
Bucklew would likely experience “suffocation, convulsions, and visible hemorrhaging” for “more than a few minutes to many minutes” before falling unconscious.
But Gorsuch still concluded that there’s “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30
seconds.” He also doubted the feasibility of nitrogen hypoxia, criticizing Bucklew for a “bare-bones” proposal:

He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or
some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or
how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.

Set aside the macabre demand for Bucklew to design the gas chamber in which he will be executed. Why is it his responsibility, and not the state’s, to make sure
prison employees are protected from gas leaks?

Gorsuch’s questioning is part of a pattern for the

Roberts Court, which has now made it incredibly difficult for prisoners to
challenge the method by which they die, apparently because the conservative justices don’t want the
challengers to succeed.
Death-penalty abolitionists have spent the past decade taking on execution methods, and have had plenty of success. U.S. drugmakers and the European Union
were pressured into imposing an embargo on selling lethal-injection drugs to U.S. states. Some states responded by turning to more widely available sedatives or
even to illegal and unregulated suppliers. Others simply stopped executing people.

In theory, this campaign shouldn’t affect the Eighth Amendment rights of the condemned. But some of the conservative justices have signaled that it does. “I guess I
would be more inclined to find that [midazolam] was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug
available,” Justice Antonin Scalia mused during the Glossip oral arguments, referring to a controversial sedative used in two botched executions in Oklahoma. “But
the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the
companies that manufacture them so that the states cannot obtain those two other drugs,” he noted.

Justice Samuel Alito was even more blunt. “Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty,” he told the
prisoners’ lawyer. “Some of those efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for
the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs
that could be used to carry out capital punishment with little, if any, pain?” His majority opinion in Glossip enshrined his underlying premise: If abolitionists prevent
a state from carrying out less painful executions, the Eighth Amendment allows states to use more painful ones.

This urge permeates Monday’s decision. Gorsuch complains throughout the majority opinion that it has taken more than two decades to execute Bucklew. “Courts
should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” he wrote, adding that last-minute stays of execution “should
be the extreme exception, not the norm.” The timing of Bucklew’s lawsuit, coming twelve days before his scheduled execution, wasn’t a question before the court;
Gorsuch’s criticism of it is wholly superfluous. His apparent purpose was to give the justices an opportunity to revisit their clash over a separate death-penalty case
from February.
That case, Dunn v. Ray, seems to have intensified the justices’ fissures over the death penalty. Domineque Ray, a Muslim death-row inmate in Alabama, sued the
state in January on religious-freedom grounds less than a fortnight before his scheduled execution. Alabama allowed Christian death-row inmates to have a
Christian minister in the same room during their executions, but refused Ray’s request to have an imam by his side when he died—a fairly clear-cut violation of the
First Amendment’s command of religious neutrality. The Eleventh Circuit Court of Appeals issued an order staying Ray’s execution so his lawsuit could proceed.

The court’s five conservative justices lifted the Eleventh Circuit’s stay and let Ray’s execution go forward. The majority said in a brief, unsigned statement that Ray
had filed his appeal too late to be considered. Justice Elena Kagan, joined by three colleagues, wrote a forceful dissent from what she called a “profoundly wrong”
decision. She criticized the majority for misstating the timeline in which Ray brought the case, for ignoring his strong claim of religious discrimination, and for “short-
circuiting” the normal appellate process to reach their preferred result. Legal observers from across the political spectrum agreed with her analysis.

Last week, in Murphy v. Collier, the court halted an execution in Texas on similar grounds. Patrick Murphy, a Buddhist death-row inmate, challenged Texas’s practice
of allowing Christian and Muslim clergy in the execution chamber but none from his faith. Murphy’s case prompted curiosity and speculation among court-watchers.
Had some of the conservative justices reversed themselves in response to Kagan’s public shaming and the near-universal public criticism? The court, as usual, did
not say. Justice Brett Kavanaugh alone wrote an opinion to concur with the move, stating outright that the Constitution “prohibits such denominational
discrimination.”

But Gorsuch’s majority opinion on Monday dispels any suggestion of doubt on the justices’ part. It affirmatively cites Ray’s case as precedent and doubles down on
the reasoning behind it. “For example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available
claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier,” Gorsuch wrote as part of his larger critique of execution
delays. He then offered a more substantive defense of the court’s actions in Dunn in a footnote, noting a state statute that allows a “spiritual adviser of the
condemned” to “be present at an execution,” but doesn’t specify the level of access. “The inmate thus had long been on notice,” Gorsuch wrote, “that there was a
question whether his adviser would be allowed into the chamber or required to remain on the other side of the glass.”

It’s stunning that five Supreme Court justices would return to a point that has been so readily disproven by one of their colleagues. The aforementioned statute,
Kagan explained back in February, “makes no distinction between persons who may be present within the execution chamber and those who may enter only the
viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason
Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”

The Roberts Court’s support for the death penalty is not out of step with public opinion: a majority of Americans support it, too. But in
their zeal to keep
capital punishment running, the justices are increasingly twisting themselves into absurdities . Death-row
prisoners with rare medical conditions have to overcome impossible legal hurdles to avoid drowning in their own blood. Those with religious-freedom claims must
act with superhuman perceptiveness or else be faulted by a merciless court on procedural grounds.

This is a dangerous path to trod. The

Supreme Court’s legitimacy is grounded in the idea that the Constitution is
more than whatever five justices happen to think it means at any given time. The post-Kennedy
court’s approach to capital punishment suggests otherwise. The Eighth Amendment now seems to say
whatever the court’s conservative majority think it says— any interpretation will do, as long as it keeps
execution chambers running. That attitude is more corrosive to the court’s integrity than any political
maneuver could ever be.

Independently, the plan would force progressive Justices’ to burn their capital that
would otherwise go to challenge worst elements of Trump’s conservative agenda
 power to wage war, the suspension of the writ of habeas corpus, encroachments on the First
Amendment

Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)

For more than a year, the Glossip dissent generated excitement among many people who oppose the
death penalty. Support for the death penalty was way down, its use was dropping like a stone, and now
Justice Breyer had said, in effect, "Please - ask us to revisit Gregg. It's time for the Court to hear a case
that we could use to decide that the death penalty is unconstitutional."
By now, nobody thinks it's going to happen any time soon. That moment has passed. We now have
Justice Neil Gorsuch, who is highly unlikely to vote to outlaw the death penalty. More important, we
have President Donald Trump.

[*777] Trump may have a chance to appoint additional justices in the next few years. But even if the
composition of the Court does not change, I don't see any justice voluntarily taking on an issue that
would be as politically controversial as the abolition of capital punishment. The justices know that at
any time they might face a constitutional crisis in which they have to confront the President over the
power to wage war, the suspension of the writ of habeas corpus, encroachments on the First
Amendment, or who knows what Trump might do in the next three years. If I were in their shoes, I'd
keep my powder dry for a potential fight about the very structure of the Republic.

Firm liberal opposition is critical to prevent the Court from shredding democracy
Wilentz, 18 --- Professor of the American Revolutionary Era at Princeton (10/9/18, Sean, “How Can
Progressives Stand Up to Kavanaugh and Trumpism? The legitimacy of yet another government branch
is under attack,” https://www.rollingstone.com/politics/politics-features/kavanaugh-confirmation-
effects-735109/, accessed on 12/13/18, JMP)

The confirmation of Brett Kavanaugh to the Supreme Court has capped the most brutal partisan judicial
campaign in American history. For 40 years, movement conservatives plotted tirelessly and spent untold
millions to install a solid hard-right majority on the court. Checked by the four appointments made by
Bill Clinton and Barack Obama — and nearly undone by the sudden death of Justice Antonin Scalia —
the Republicans would stop at nothing, including blocking the nomination of the moderate Merrick
Garland by thwarting a constitutional process. On Saturday, they finally won by ramming through the
appointment of a long-time GOP operative and conspiracy-monger who would save his nomination by
brazenly lying to the world under oath about details large (not knowing about Deborah Ramirez’s
allegations) and small (boofing? the devil’s triangle?) and doing so with a smug and angry smirk.

Still, terrible as Kavanaugh’s confirmation is and likely will continue to be for the Constitution
and the American people, there may be a saving grace or two, but only if the Democrats can
learn the right lessons and then fight as fiercely and tirelessly as the right wing has for these
many years.

Let no one mistake the enormity of what’s just happened. Kavanaugh’s nasty role in the
unconstitutional, partisan drive to remove President Clinton; his covered-up actions regarding both
torture and controversial judicial nominations while serving in the George W. Bush White House; and his
evident lack of truthfulness in previous sworn testimony to the Senate were enough to raise serious
questions about his integrity. The ideological rigidity of his positions on the Court of Appeals raised
further serious questions about his neutrality and open-mindedness. But those were grounds for
opposition, not outright disqualification. It was his performance in response to the charges of Dr.
Christine Blasey Ford that ought to have been disqualifying, as retired Justice John Paul Stevens (an old-
school Republican) observed just prior to the confirmation.
I’ve heard it said on the public airwaves and in conversations with friends that Kavanaugh had every
right to be angry, even furious, after being hit at the last minute with uncorroborated charges of
committing a filthy and violent crime. But that argument only amplifies why Kavanaugh is unfit for the
court.

Let’s hold aside for a minute that Dr. Ford’s charges were, in fact, strongly corroborated, not least by
what she’d been telling intimates and therapists for years before Kavanaugh’s nomination. Let’s even
assume, for the sake of argument, that Kavanaugh had nothing to do with any of the things Dr. Ford and
the other two women claimed he did. Here would be an acid test of Kavanaugh’s temperament and
suitability for the court, dealing with unfair charges that threatened his reputation — but by that
standard, the standard invoked by his strongest defenders, he flunked miserably.

Since the nation’s founding, Americans have expected all members of the judiciary, above all the justices
on the Supreme Court, to be able to hold their emotions at least reasonably in check — in their rulings,
in their other writings and especially in their public pronouncements. We don’t expect them to be saints,
but we do expect them to at least be better than most of the rest of us: That’s one reason we elevate
them to the highest court. We don’t expect them to be wishy-washy, or to hold back one whit in arguing
their interpretations of the law, but we do expect them to make their arguments reasonably, without
rancor and without obviously closed-minded partisan allegiances. That ability to rise above the fray, the
personal fray as well as the partisan, constitutes a large part of what’s meant by judicial temperament.
It’s what gives the court its standing as disinterested and impartial, even in the most trying and
embittered circumstances. Clarence Thomas managed to show such a temperament in 1991 when,
offended and even seething at Anita Hill’s charges, he remained in command of himself and never
crossed the line into gratuitous and insulting displays of fury.

Kavanaugh instead put on a calculated, unhinged performance. Perhaps he intended to intimidate the
Democrats on the Judiciary Committee, turning the tables after Dr. Ford’s powerful testimony. Perhaps
he intended to whip up support among President Trump’s already angry and resentful supporters. But in
doing so, he acted, in his moment of truth, precisely in the way that the nation’s founders warned
against as a threat to national comity and even-handed government. He lashed out at the Democratic
Party and cooked up wild conspiracy theories to explain what he called his plight. He scorned and
derided members of the Senate exactly as a trash-talking bully would. He blatantly lied about things he
didn’t have to lie about, and practically dared anyone to do anything about it. Yet Mitch McConnell and
the rest of the radicalized GOP would not let anything as trivial as historically disqualifying behavior stop
them. No, they rejoiced in and encouraged that behavior, then stifled investigation into Kavanaugh’s
lies.

With Kavanaugh now the fifth vote in a 5-to-4 hard-right majority, the court has come perilously close to
losing its legitimacy on any matters even remotely connected to partisan concerns, ranging from voting
rights and campaign-contribution laws to issues concerning women’s reproductive rights, environmental
law, labor law, gun safety, corporate regulation and a long list of other crucial matters on which the
court will certainly rule in the near future.

But maybe that loss of legitimacy is not the very worst thing that could have happened. After
Kavanaugh’s performance and his strong-armed confirmation, the 5-to-4 decisions that ensue will at
least clarify exactly what the long-term right-wing campaign has been all about. It’s had nothing to do
with restoring the “original intent” of the framers of the Constitution, which has been transparent
mumbo-jumbo propaganda from the start. It’s had nothing to do with reining in judicial activism. It has
to do with unleashing judicial activism, in the form of judicial attacks on and possible repeal of
fundamental laws as well as court decisions that have checked inequality and injustice, from the
Affordable Care Act back to Roe v. Wade and the Voting Rights Act, and then back even further to the
reforms of the New Deal and Progressive eras.

Above all, it is of a piece with a decades-long assault on democratic institutions that has set the pace
for the illiberal counterrevolutions that are now sweeping though the Western world. As early as the
1950s, American conservatives and reactionaries understood that their plutocratic and racist causes
were doomed unless they took radical measures. It wouldn’t suffice to be the kind of conservative who,
as William F. Buckley remarked, “stands athwart history, yelling Stop.” It would be necessary to bend
history to the right-wing will, which required more drastic action. It would require changing the very
structure of American politics and government, taking aim at everyone and everything that stood in the
conservatives’ way, from organized labor, which had become a bulwark of social reform and democratic
politics, to the vindication of voting rights that upended traditional Jim Crow. And the extremists would
have to do these things without appearing to violate the Constitution. They would use all of the legal
tools that were available to them to undermine democracy, like gerrymandering; they would adopt
scorched-earth strategies and tactics in Congress and state legislatures, abandoning any pretense of
respect; they would scrap the Fairness Doctrine and build dynamos of hyper-partisan disinformation,
above all Fox News; and, crucially, they would stock the judiciary with ideologues who would gut
existing Great Society and even New Deal legislation and put their seal of approval on new reactionary
triumphs.

Trump and Trumpism have been the logical outcomes of this long-standing attack on our democratic
institutions. At a moment when, in the aftermath of Barack Obama’s re-election, mainstream
conservative Republicans looked like they might soften their implacable appeal just a bit, on issues like
immigration, Trump commandeered their base and pursued with a vengeance (and a madcap
viciousness) the most extreme reactionary agenda, undoing as much as possible of not only Obama’s
legacy but of the New Deal and Great Society and, atop that, repudiating the liberal democratic
international order erected after World War II. And, coming full circle, those authoritarian regimes —
from the right-wing governments in Poland and Hungary to Duterte in the Philippines, often with the
backing of Trump’s great friend Vladimir Putin — have endeavored to build warm relations with the
White House and vice versa, even as the White House trashes relations with the Western liberal
democracies and the international alliances that sustain them.

The Kavanaugh confirmation is a landmark in the American counterrevolution. But in its starkness as
well as its profound consequences — and by awakening us to the full dimensions of the
counterrevolution — it can be a source of resolve, not despair. This is not the first time in American
history where a reactionary minority has used the instruments of democracy to gain power over the
entire national government. The Slave Power of the pre-Civil War years did precisely that, giving a tiny
minority of southern slaveholders and their supporters a hammerlock on the White House, the Congress
and the Supreme Court. Nor is the newly revised John Roberts Supreme Court the first high court in our
history with a clearly reactionary agenda. The Roger Brooke Taney court of the 1850s, infamous for its
Dred Scott decision in 1857, was dominated by partisan, proslavery justices; Abraham Lincoln (who
didn’t actually dispute the court’s legitimacy as others did) was moved to repudiate the Scott ruling as
“based on assumed historical facts which are not really true,” and basically vowed to appoint a new
court. Eighty years later, Franklin Delano Roosevelt, trying to advance the New Deal, faced a Supreme
Court that, in one commentator’s view, had “convinced even the most reverent that five stubborn old
men had planted themselves squarely in the path of progress.”

Two generations of modern-day liberals and progressives, though, having come of age during the very
different era of the Earl Warren court and its immediate successors, have grown accustomed to turning
to the courts to expand civil and social rights, beginning with the landmark Brown v. Board of Education
ruling in 1954. Even as the courts grew more conservative during the Reagan years and after, liberals
and progressives looked to the courts to achieve victories on various fronts, most recently over gay
marriage. An ever-growing downside of that strategy, though, was that liberal causes over the years
may have grown more adept at designing legal strategies than in building mass support with the
electorate. This reliance on judges helped secure the perception, endlessly drummed up by
conservatives, that liberals were out-of-touch elitists who wanted to impose their will on the people
through the courts.

If nothing else, the Kavanaugh confirmation makes it clear that those days are over – that until and
unless Democrats can do something about it, the federal judiciary will be the enemy of the will of the
American majority on numerous crucial issues. And what can the Democrats do? First, obviously, we
need to vote Trump out while winning solid legislative majorities, not just in the House and Senate but
in the governors’ mansions and state legislatures where so much of the assault on democratic
institutions has taken place. But what then? How can Democrats undo the damage done to the federal
courts over the past 35 years and ensure that their reforms will not be killed outright by the ideologically
rigid judges and justices appointed since the days of Ronald Reagan, and being appointed at an
unprecedented rate by Trump?

We can start doing it by, for once, playing for keeps and reforming the Supreme Court — not just by
naming non-reactionaries to the bench, but by restructuring the court itself, as a growing number of
commentators have suggested. The Constitution does not dictate that the court consist of nine justices.
Originally, the court had six members, a chief justice and five associates; Congress then enlarged it, first
to seven and then to a high of 10 members. In 1866, in order to thwart the racist president Andrew
Johnson, Congress knocked the number down to nine. And in 1937, FDR tried to persuade Congress to
allow the appointment of new justices to a maximum of 15. Republicans squealed at what they called
Roosevelt’s court packing, and there was a public backlash. But under FDR’s threat, the existing court
backed off of its reactionary stance and stopped killing New Deal reforms.

Should the current Supreme Court prove illegitimate — its majority tainted by the Merrick Garland
outrage, the Kavanaugh bullying and the questionable legitimacy of the entire Trump presidency — and,
as seems likely, the court starts striking down, in a string of 5-to-4 decisions, everything from Roe v.
Wade to what remains of the New Deal’s National Labor Relations Act, Democrats ought to fight back
with everything we’ve got, and pledge to the American people that we will do what FDR threatened
to do and break the reactionary majority. We would do well to make that pledge as soon as the first 5-
to-4 decision comes down. If that happens, and if the Democrats succeed, the Kavanaugh confirmation
may prove a very different kind of turning point than it appears to be today — the moment when the
nation finally awakened and began to destroy the extremist GOP’s subversion of American
democracy. But none of that will matter if the Trump Republicans retain their control of Congress next
month. Should the Democrats fail to win a majority, at the very least in the House, then the American
majority will awaken to a true nightmare beyond its worst imaginings.

Democratic backsliding will shatter the international order—we access every single
impact
Kendall-Taylor 16
(Andrea Kendall-Taylor is a deputy national intelligence officer for Russia and Eurasia at the National
Intelligence Council and a nonresident senior associate in the Human Rights Initiative at the Center for
Strategic and International Studies in Washington, D.C., 7-15-16, “How Democracy’s Decline Would
Undermine the International Order”, https://www.csis.org/analysis/how-democracy%E2%80%99s-
decline-would-undermine-international-order, accessed 11-20-18, DFY)

It is rare that policymakers, analysts, and academics agree. But there is an emerging consensus in the world of foreign policy: threats to
the stability of the current international order are rising. The norms, values, laws, and institutions that have undergirded
the international system and governed relationships between nations are being gradually dismantled. The most discussed sources of this
pressure are the ascent of China and other non-Western countries, Russia’s assertive foreign policy, and the
diffusion of power from traditional nation-states to nonstate actors , such as nongovernmental organizations,
multinational corporations, and technology-empowered individuals. Largely missing from these discussions, however, is the specter of
widespread democratic decline. Rising challenges to democratic governance across the globe are a
major strain on the international system, but they receive  far less attention in discussions of the shifting
world order.

In the 70 years since the end of World War II, the

United States has fostered a global order dominated by states that
are liberal, capitalist, and democratic. The United States has promoted the spread of democracy to
strengthen global norms and rules that constitute the foundation of our current international system.
However, despite the steady rise of democracy since the end of the Cold War, over the last 10 years we have seen dramatic reversals in respect
for democratic principles across the globe. A 2015 Freedom House report stated that the “acceptance of democracy as the world’s dominant
form of government—and of an international system built on democratic ideals—is under greater threat than at any point in the last 25 years.”

Although the number of democracies in the world is at an all-time high, there are a number of  key
trends that are working to undermine democracy. The rollback of democracy in a few influential states or
even in a number of less consequential ones would almost certainly accelerate meaningful changes in today’s global
order.
Democratic decline would weaken U.S. partnerships and erode an important foundation for U.S. cooperation abroad. Research
demonstrates that domestic
politics are a key determinant of the international behavior of states. In
particular, democracies are more likely to form alliances and cooperate more fully with other democracies
than with autocracies. Similarly, authoritarian countries have established mechanisms for cooperation and sharing of “worst practices.”
An increase in authoritarian countries, then, would provide a broader platform for coordination that could
enable these countries to overcome their divergent histories, values, and interests—factors that are frequently cited
as obstacles to the formation of a cohesive challenge to the U.S.-led international system.

Recent examples support the empirical data. Democraticbacksliding in Hungary and the hardening of Egypt’s
autocracy under Abdel Fattah el-Sisi have led to enhanced relations between these countries and Russia. Likewise,
democratic decline in Bangladesh has led Sheikh Hasina Wazed and her ruling Awami League to seek closer relations
with China and Russia, in part to mitigate Western pressure and bolster the regime’s domestic standing.
Although none of these burgeoning relationships has developed into a highly unified partnership, democratic backsliding in these
countries has provided a basis for cooperation where it did not previously exist. And while the United States
certainly finds common cause with authoritarian partners on specific issues, the depth and reliability of such cooperation is limited.
Consequently, further democratic decline could seriously compromise the United States’ ability to form
the kinds of deep partnerships that will be required to confront today’s increasingly complex
challenges. Global issues such as climate change, migration, and violent extremism demand the coordination
and cooperation that democratic backsliding would put in peril. Put simply, the United States is a less
effective and influential actor if it loses its ability to rely on its partnerships with other democratic
nations.

A slide toward authoritarianism could also challenge the current global order by diluting U.S. influence in
critical international institutions, including the United Nations , the World Bank, and the International Monetary Fund
(IMF). Democratic decline would weaken Western efforts within these institutions to advance issues such
as Internet freedom and the responsibility to protect. In the case of Internet governance, for example, Western
democracies support an open, largely private, global Internet. Autocracies, in contrast, promote state control over the Internet, including laws
and other mechanisms that facilitate their ability to censor and persecute dissidents. Already many autocracies, including Belarus, China, Iran,
and Zimbabwe, have coalesced in the “Likeminded Group of Developing Countries” within the United Nations to advocate their interests.

Within the IMF and World Bank, autocracies—along with other developing nations—seek to water down conditionality or
the reforms that lenders require in exchange for financial support. If successful, diminished conditionality would
enfeeble an important incentive for governance reforms. In a more extreme scenario, the rising influence of autocracies could
enable these countries to bypass the IMF and World Bank all together. For example, the Chinese-created Asian
Infrastructure and Investment Bank and the BRICS Bank—which includes Russia, China, and an increasingly authoritarian South Africa—provide
countries with the potential to bypass existing global financial institutions when it suits their interests. Authoritarian-led
alternatives pose the risk that global economic governance will become  fragmented and less effective.

Violence and instability would also likely increase if more democracies give way to autocracy.  International
relations literature tells us that democracies are less likely to fight wars against other democracies, suggesting that interstate wars
would rise as the number of democracies declines. Moreover, within countries that are already autocratic,
additional movement away from democracy, or an “authoritarian hardening,” would increase global
instability. Highly repressive autocracies are the most likely to experience state failure, as was the case in the
Central African Republic, Libya, Somalia, Syria, and Yemen. In this way, democratic decline would
significantly strain the international order because rising levels of instability would exceed the West’s
ability to respond to the tremendous costs of peacekeeping, humanitarian assistance, and refugee
flows.

Finally, widespreaddemocratic decline would contribute to rising anti-U.S. sentiment that could fuel a
global order that is increasingly antagonistic to the United States and its values. Most autocracies are highly
suspicious of U.S. intentions and view the creation of an external enemy as an effective means for boosting their own public support. Russian
president Vladimir Putin, Venezuelan president Nicolas Maduro, and Bolivian president Evo Morales regularly accuse the United States of
fomenting instability and supporting regime change. This vilification
of the United States is a convenient way of
distracting their publics from regime shortcomings and fostering public support for strongman tactics.

Since 9/11, and particularly in the wake of the Arab Spring, Western enthusiasm for democracy support has waned. Rising levels of
instability, including in Ukraine and the Middle East, fragile governance in Afghanistan and Iraq, and
sustained threats from terrorist groups such as ISIL have increased Western focus on security and
stability. U.S. preoccupation with intelligence sharing, basing and overflight rights, along with the perception that autocracy equates with
stability, are trumping democracy and human rights considerations.
While rising levels of global instability explain part of Washington’s shift from an historical commitment to democracy, the nature of the policy
process itself is a less appreciated factor. Policy discussions tend to occur on a country-by-country basis—leading to choices that weigh the
costs and benefits of democracy support within the confines of a single country. From this perspective, the benefits of counterterrorism
cooperation or access to natural resources are regularly judged to outweigh the perceived costs of supporting human rights. A serious problem
arises, however, when this process is replicated across countries. The bilateral focus rarely incorporates the risks to the U.S.-led global order
that arise from widespread democratic decline across multiple countries.

Many of the threats to the current global order, such as China’s rise or the diffusion of power, are driven by factors that the United States and
West more generally have little leverage to influence or control. Democracy, however, is
an area where Western actions can
affect outcomes. Factoring in the risks that arise from a global democratic decline into policy discussions
is a vital step to building a comprehensive approach to democracy support. Bringing this perspective to
the table may not lead to dramatic shifts in foreign policy, but it would ensure that we are having the
right conversation.

The disad solves the case --- abandoning the Court facilitates progressive reforms
though other channels
 the Court will model once public sentiment shifts

Margulies, civil rights attorney and professor at Cornell University, 18 (10/12/18, Joseph,
“How a Conservative Supreme Court Could Actually Benefit Progressives,”
http://time.com/5422451/progressives-supreme-court-never-ally/, ***for confirmation it was written
by Margulies please visit https://as.cornell.edu/news/how-conservative-supreme-court-could-actually-
benefit-progressives, accessed on 12/16/18, JMP)

If intentions lead to action, the process by which Judge Brett Kavanaugh became a Supreme Court
Justice will send a great many people on the Left to the polls in November. That is a good thing. But still
more exciting is the possibility that the Left will finally relinquish the dangerous fantasy that
progressive change originates with, and depends upon, the Supreme Court.

The Left clings to this hope because it prizes so many of the rights once declared by the Court: to attend
desegregated schools, to end some pregnancies and to exclude prayer from public schools. Even leaving
aside the extent to which these decisions have already been neutered, the fact is that, apart from a few
short decades in the middle of the 20th century, the Court has never been a force for progressive
reform. On the contrary, it is far more inclined to block progressive change than promote it.

To put it plainly, the Court is not now, and has almost never been, a friend to the Left. And all evidence
points to the conclusion that the Court will soon become even more of what it has almost always been.
The sooner liberals realize that, the better they will be.

Despite the Court’s antagonism, however, the contest for progressive reform is not over. It simply
moves the work elsewhere. Consider, for instance, the experience in capital punishment. In 1972, the
Court struck down all existing death-penalty statutes, which triggered a massive backlash that
brought capital punishment back with a vengeance. The day after the Supreme Court decision,
legislators in five states introduced bills to restore the death penalty. President Nixon asked the FBI for
the names of convicted murderers who had committed a second murder after being released from
prison. By 1976, thirty-five states plus the federal government had enacted new death penalty
statutes.
Since then, the Court has been a steadfast supporter of the ultimate punishment. Though individual
Justices have now and again announced their opposition to the death penalty, they have never spoken
for anything like a majority of the Court. Some anti–death penalty advocates still hold out hope the
Court will strike down capital punishment, but no one credibly thinks it will happen any time soon.

And so advocates long ago turned elsewhere. For years, they have devoted extraordinary energy to
assembling and publicizing the ample evidence of a flawed system, a system that tolerates egregious
levels of racial imbalance, official misconduct and legal caprice. And they have deployed this evidence
to influence attitudes about capital punishment among state legislators, policymakers and the public.
They have also assiduously trained those who handle these cases in the best practices at every stage of a
capital case.

The results have been impressive. According to the Death Penalty Information Center, both death
sentences and executions have fallen to historic lows. So far this year, there have been 18 people
executed in the United States, down from a high of 98 in 1999 and putting 2018 roughly on track with
the recent past. And even this tends to overestimate the extent to which the death penalty actually
exists in the United States, since 10 of the 18 executions this year are from a single state (Texas). The
number of death sentences is likewise a fraction of its former total. In 2017, the most recent year for
which we have numbers, there were 39 new sentences, up from 31 in 2016 but down dramatically from
295 in 1998.

Meanwhile, recognizing the hostility in the Supreme Court, litigators are looking elsewhere for relief.
Just this week, for instance, the Washington Supreme Court struck down the state’s death penalty
“because it is imposed in an arbitrary and racially biased manner.” Notably, the court relied on the state
constitution, meaning its opinion cannot be reviewed or reversed by the U.S. Supreme Court.

Other campaigns have also had great success outside the courts, including the nascent efforts to
reform police practices, shrink the prison population and sand down the roughest edges of the
criminal justice system. Perhaps the most consequential of these efforts has been the recent move to
end or restrain the use of solitary confinement. Thanks to the work of a small army of advocates and
reformers, many federal, state and local jurisdictions across the country — red and blue — have either
made or are considering changes that will limit their use of solitary confinement, especially for juveniles
and the mentally ill, according to a 2018 report by the Association of State Correctional Administrators
and researchers at Yale Law School.

Everyone agrees that much remains to be done, in some states more than others. The point, however, is
that progressive change has taken place with the Court on the sidelines. Indeed, on Justice
Kavanaugh’s first official day as a Justice, the Supreme Court denied review in a case involving solitary
confinement. Justice Sotomayor dissented from the denial, but the remainder of the Court was silent.

I do not mean to suggest that progressive advocates should ignore the Court. That would be as foolish as
idolizing it. But we should recognize that the Court in this country has rarely been particularly
courageous; it is much more inclined to follow than lead. Ever mindful of its political capital, the Court
hates to find itself out of step with dominant sentiments in society. But once it discerns that public
sentiment has shifted, it tends to follow the crowd, reinterpreting the law to fit the perceived
demands of the day.
Perhaps the best recent example of this was the 2015 decision in Obergefell v. Hodges, which struck
down state laws that barred same-sex marriage. By the time the Court entered the fray, popular opinion
had already shifted dramatically in favor of same-sex marriage and the law at issue in Obergefell was
already an outlier. In this setting, the Court dutifully found a right to same-sex marriage.

There are undeniably times when early recourse to the Court cannot be avoided. That was the case in
2002, for instance, when my colleagues and I started the litigation challenging detentions at
Guantanamo. At the time, the great hostility to our clients in the public square, combined with the
conditions of their detention and interrogation, left us no option but to seek relief in the courts. But
when advocates seek review in a controversial case without previously building a base of public
support, as we were forced to do, the Court is not likely to be receptive and any victory is apt to be
narrow and more symbol than substance, as ours was in Rasul v. Bush.

At best, the Court is a tool that progressive advocates must keep in their arsenal. But it is only one of
many tools, and not apt to be successful until progressive changes on the ground have taken hold,
leaving the Court little to do but cement these changes into place.

The confirmation of Judge Kavanaugh has inspired a great many people to vote. But it will be even
better if it leads them to refine their views of the Court and motivates them to enter the fray .
Eventually, even this Court will follow us.
 2nc Uniqueness – Conservative Court Mobilizing Progressives

Conservative Court is mobilizing progressives --- it has to demonstrate it can heal itself
to preempt public demands to restructure
Neidig, 19 (10/31/19, Harper, “Divisive docket to test Supreme Court ahead of 2020,”
https://thehill.com/regulation/court-battles/468224-divisive-docket-to-test-supreme-court-ahead-of-
2020, accessed on 4/29/2020, JMP)

But some court watchers say that could change.

Earlier this month, the court heard arguments in cases that will decide whether civil rights laws that
protect workers from discrimination on the basis of sex cover gay and transgender employees. And in
November, the Trump administration will face off with civil rights advocates, universities and major
businesses in a case that will decide the fate of the Deferred Action for Childhood Arrivals (DACA)
program.

The court is expected to hand down decisions on those divisive social and political issues in June.

Also looming ahead is the 2020 presidential election, with both parties already making control of the
federal judiciary a key issue to rally their supporters.

Controversial rulings out of the court this term could turn the institution into a bigger political issue for
voters, particularly if the court's conservative majority holds sway on a number of contentious issues.

Marquette’s polling shows that 53 percent of Americans would oppose a ruling that upholds Trump’s
decision to end the DACA program shielding thousands of immigrants from deportation; 60 percent
would oppose a decision finding that gay and transgender people aren’t protected by workplace
discrimination laws; and 61 percent would oppose the court overturning Roe v. Wade, the 1973 decision
that legalized abortion that conservative judicial activists have spent decades mobilizing against.

Some of the justices have been particularly sensitive to accusations the court has become politicized.

“When you live in a polarized political environment, people tend to see everything in those terms,” Chief
Justice John Roberts, a George W. Bush appointee, said in a speech last month. “That’s not how we at
the court function and the results in our cases do not suggest otherwise.”

But ahead of this term's rulings, both sides appear eager to turn the court into a political football in
2020.

Progressive activists warn that the court's reputation could be damaged if it oversteps with unpopular
rulings and energizes progressive voters.

“People on the left are more engaged than ever before in advocacy around the Supreme Court since
the Kavanaugh confirmation,” said Nan Aron, the president of the progressive judicial group Alliance for
Justice.
“Decisions that the court renders on critical legal protections and rights will serve as an urgent call to
action on the part of the left," Aron added. "Ultimately, we'll see growing numbers of progressives
prioritizing the Supreme Court in the upcoming election.”

But conservatives also have high expectations for the court's term and its majority. Exit polling from
previous elections show that conservative voters are more likely to prioritize a candidate's views on the
Supreme Court than liberal voters.

Republicans and Trump have capitalized on that with their base. In 2016, then-candidate Trump took
the unusual step of releasing a shortlist of potential Supreme Court nominees to convince skeptical
Republicans of his commitment to nominating conservative justices.

And Senate Majority Leader Mitch McConnell (R-Ky.) has touted the confirmation of Trump’s two
Supreme Court nominees and a slew of federal judges as a signature achievement for the GOP Senate.

Conservatives have high hopes the conservative majority will deliver on issues important to the base.

Carrie Severino, chief counsel and policy director for the right-wing Judicial Crisis Network, said that the
left’s push for reforms are an attack on the Supreme Court’s independence.

“These are issues of great concern because they are using this rhetoric calling the court political in order
to advance their own agenda, which itself is what's actually political — the agenda of trying to get more
liberal justices on the court,” Severino told The Hill.

The challenge to the court in a hotly politicized Washington is evident as Democratic candidates and
lawmakers have floated or embraced more radical reforms to the court, such as court-packing or
imposing term limits on justices.

Polls also show some support for those views. While the Marquette poll found that only a minority, 43
percent, support packing the court, a surprising 72 percent backed the idea of ending lifetime tenures
for Supreme Court justices in favor of fixed terms.

Christopher Kang, counsel for the progressive group Demand Justice, said in an emailed statement to
The Hill that Democrats should take heed of those poll numbers and the potential for major Supreme
Court decisions this term.

“This explosive term will catapult the court to the center of the 2020 debate,” Kang said. He added that
"Democrats can run and win by offering reforms to rebalance Court — but only with bold court reform
plans that can actually solve the problem."

The pressure on the court is likely to grow.

In August, a group of five Democratic senators, led by Sen. Sheldon Whitehouse (D-R.I.), filed an amicus
brief with the Supreme Court blasting its decision to take up a Second Amendment case concerning gun
laws in New York and accusing the conservative justices of politicizing the court. The group cited a
Quinnipiac poll from May that showed 51 percent of voters think the court needs to be “restructured.”

“The Supreme Court is not well,” the lawmakers wrote. “And the people know it. Perhaps the court
can heal itself before the public demands it be ‘restructured in order to reduce the influence of
politics.’”
 2nc Uniqueness – Conservative Court => Democratic Activism

Conservative decisions will force progressives to confront the Court --- spurs activism
at all levels to reinvigorate democracy
Levitt, 18 --- constitutional and election law scholar at Loyola Law School, Los Angeles (7/10/18, Justin,
“For progressives, there's a bright side to Brett Kavanaugh's Supreme Court nomination,”
https://www.usatoday.com/story/opinion/2018/07/10/progressives-vote-supreme-court-brett-
kavanaugh-nomination-donald-trump-column/755384002/, accessed on 12/30/18, JMP)

Progressives need to recognize that state and local races are more important than the Supreme Court
on most issues, and be sure to vote in those elections.

Supreme Court Justice Anthony Kennedy has retired. President Donald Trump cares little for legal
method or substance, and was happy to let his conservative advisers do the picking, as long as he
managed the spectacle of the announcement himself.

The president has now given the rose to Judge Brett Kavanaugh. Kavanaugh's confirmation would
substantially shift the midpoint on the court. Since Kennedy announced his retirement, the ink spilled by
progressive commentators in the last week has been thoroughly smeared by tears, or liquor, or both.

In the present political environment, there is precious little upside for progressives in Kennedy’s
departure. But it is important to consider a long-term glimmer: back-to-basics democracy.

To be sure, progressives will find little joy in the substantive views of Kennedy’s replacement. President
Trump has nominated and the Senate will almost certainly confirm, a justice more reliably conservative
than Kennedy on the judicial culture wars of the day, with decades to serve.

The Supreme Court has an outsized role

Judge Kavanaugh's pre-commitments will not affect every coming case: about half of the court’s
decisions are unanimous. Nor will his every vote be known in advance: some issues are neither liberal
nor conservative. But on the major fights with identifiable left-right valence, fights desperately
important to millions of people — the newest justice will be reliably farther to the right.

That shift may finally force progressives to confront the outsized role of the
Supreme Court — and, more important, to act on that realization.
For decades, conservatives have been more motivated to political action by the composition of the
courts than their liberal counterparts have been. By many accounts, Justice Kennedy had become the
most important person in the country. Justice Scalia’s death meant end-of-days political combat, and
profound compromise of political principle, to keep it that way.

It was not always thus. John Jay, an author of the Federalist Papers and the first Chief Justice, gave up
his post to become governor of New York. But with the steady accretion of judicial power, for good and
for ill, Chief Justice Roberts is not shopping for a governorship. He and President Trump are now viewed
as the two most important people in the country, and they both like it that way.
And perhaps, just perhaps, this will generate a healthy bout of political enthusiasm.

State, local races matter more on most issues

I don’t just mean the vote for senators, for confirmation battles. And I don’t just mean the vote for
president, for future nominations.

Both are unquestionably important, but also feed the unhealthy American fascination with the shiny
quick fix: we put undue faith in stars and confuse them for saviors. The country broke free from rule by
one man in a cape. It is unhealthy to have the country’s political aspirations so dependent on the
personality and policy priors of one man in a robe. That’s true no matter who the man is. Kennedy, yes.
And Roberts. And Garland, too.

Instead, I mean political enthusiasm beyond the shiny races with direct impact on the court. The
Supreme Court issues 60-70 decisions per year, often telling government what it may do, but not what it
must do. A few decisions take some progressive action off of the table. But on many issues in many
places, the Court sets broad parameters and legislators and executives fill in the blank.

This means that the most important races on most matters are for Congress, state legislature, county
supervisor and prosecutor, city council and mayor. Democracy happens in the trenches. Those officials
make millions of decisions about the world we build together. Most don’t ever come near the Supreme
Court.

Voters must start caring more about these elections. Turnout in presidential election years hovers
between 50 and 60 percent: an appalling baseline. Some (but not all) of that is due to unjustified
restrictions on the franchise. But participation drops like a rock for other elections, and that’s difficult to
blame on barriers alone. A Gallup poll two weeks ago asked whether voters were “absolutely certain” to
vote in this fall’s midterm elections — and got the second most feeble response in 60 years.

The lack of attention to downballot elections is part of what makes Justice Kennedy’s retirement so
massively meaningful. But perhaps the fight over his successor will help progressives realize the
urgency of fighting on other fronts as well.
 2nc Uniqueness – Liberal Voters Energized / AT: Court = Inevitable
Trump Win

Wisconsin is the latest signal that liberal voters are energized and mobilized to
transform politics --- trying to keep people from voting won’t be enough for
Republicans to win
Kilgore, 4/14/2020 (Ed, “The Wisconsin Results Should Worry Republicans Everywhere,”
https://nymag.com/intelligencer/2020/04/the-wisconsin-results-should-worry-republicans-
everywhere.html, accessed on 5/1/2020, JMP)

My initial reaction to the upset win by Jill Karofsky in Wisconsin’s officially nonpartisan but intensely
ideological State Supreme Court election was all about karma: Republicans went to epic lengths to hold
down turnout in order to reelect conservative judge Daniel Kelly, and lost anyway.

Indeed, they lost badly, as the final returns indicated, with Karofsky winning by ten points, achieving the
standard definition of a landslide in a state where virtually every recent election has been close. Given
Wisconsin’s key role in electing Donald Trump in 2016, and its potential status as a tipping-point state
this year, the judicial results may have more national significance than one might immediately discern.
Charlie Sykes, a veteran Wisconsin political observer and editor-in-chief of the Bulwark, certainly thinks
so:

[T]he scope and nature of Kelly’s defeat was historically humiliating.

No incumbent supreme court justice had been defeated since 2008, when a conservative
challenger ousted liberal justice Louis Butler. That victory turned out to be part of a remarkable
run for conservatives who would go on to build a 5-2 majority on the court. (It will now be 4-3.)

And until Monday night, no incumbent conservative justice appointed by a Republican governor
had been defeated. (Kelly had been appointed by former Governor Scott Walker.)

This was, of course, the epitome of an atypical election. But it’s hard not to look at the results and see a
pattern that should worry Republicans everywhere, as Reid Epstein suggests:

Wisconsin’s map on Monday night looked like a dream general election result for former Vice
President Joseph R. Biden Jr., the presumptive Democratic nominee — stronger than typical for
Democrats in the suburbs and a respectable showing among the state’s blue-collar white voters
in rural counties …

The decisive Democratic win offered a signal that the party, highly energized and mobilized
heading into 2020, could organize and execute a winning get-out-the-vote program against
strident Republican efforts to limit voter turnout in a narrowly divided state widely expected to
be crucial in this fall’s presidential election.

Keep in mind that this is the rare general-election test we’ve seen this year: It’s not just a poll, or a
primary in which the two parties compare their turnout, but an actual red-versus-blue face-off in which
both parties invested mightily, even as the red team tilted the board with its drive to reduce voting-by-
mail opportunities. Thus, it makes sense to make Wisconsin a fresh data point in a pattern that goes
back to the first day of the Trump administration, as Sykes writes:

[A]t some point Republicans are going to have to look at exactly what has been happening
across the country over the last three years:

* A Democrat wins a Senate race in Alabama

* A Democrat becomes governor in Kentucky

* A Democrat recaptures the governorship of New Jersey

* Democrats take control of the House of Representatives

* Democrats win unified control of the state government in Virginia

* Liberal Jill Karofsky blows out an incumbent conservative Wisconsin Supreme Court judge

Making any prediction of how a deeply polarized nation in the midst of a deadly pandemic and on the
brink of an economic depression is going to vote in November is folly. But the endlessly expressed
confidence we heard from Republicans earlier this year that Trump’s reelection was so certain — such a
totally done deal — that Democrats impeached him in a panic isn’t looking very sensible at this point.
Anything could happen, but it might be time for the president’s partisans to stop with the anticipatory
gloating and get to work, and not just by trying to keep people from voting.

Wisconsin demonstrates liberal voters are energized – absentee voting skyrocketing

Johnson, 4/14/2020 (Shawn, “Despite Obstacles, Democratic Turnout Surged In Wisconsin Supreme
Court Race; Judge Jill Karofsky Won Double-Digit Victory Over Justice Daniel Kelly,”
https://www.wpr.org/despite-obstacles-democratic-turnout-surged-wisconsin-supreme-court-race,
accessed on 5/2/2020, JMP)
Democrats tried to stop Wisconsin's April election, but when they couldn't, their voters had the last word.

While last week's race was officially nonpartisan, Democrats turned out far and wide for Dane County
Judge Jill Karofsky, giving her a lopsided 55-45 percent victory over conservative Justice Daniel Kelly in the race for the Wisconsin
Supreme Court.

"Geographically, almost everything that could have gone right for the Democrats basically did," said J. Miles Coleman, associate editor for Sabato's Crystal Ball at the
University of Virginia Center for Politics.

Amid the continuing coronavirus pandemic, Wisconsin had never experienced an election quite like this one, where voters and poll workers wore face masks and
gloves to handle ballots, and a decrease in polling places led voters to stand in line for hours in Milwaukee and Green Bay.

Despite all that, voter

turnout hit 34.3 percent, according to the Wisconsin Elections Commission, making it among the highest
turnout state Supreme Court races ever. Only 2016 was higher, when both Democrats and Republicans turned out to vote in competitive
presidential primaries. This year's turnout percentage also matched the 2011 Wisconsin Supreme Court race, which was viewed as a referendum on former
Republican Gov. Scott Walker just a month after he signed his landmark Act 10 law restricting the power of public-sector unions.

[graph omitted]
Democrats had long hoped this year's presidential primary would give Karofsky a boost, but that seemed unclear after most presidential candidates left the race,
former Vice President Joe Biden emerged as the party's frontrunner and COVID-19 put a stop to traditional campaigning.

U.S. Sen. Bernie Sanders of Vermont suspended his campaign Wednesday, the day after in-person voting concluded in Wisconsin.
Barry Burden, University of Wisconsin-Madison political science professor, said that likely gave some Democrats more of an incentive to vote even if the race was all
but decided.

"It may have been why Bernie Sanders decided to stay in the race through Wisconsin," Burden said. "His supporters tend to be enthusiastic and very passionate —
attached to him personally. And they may have come out just as a show of their support for him and his platform and that trickled down to help Karofsky in the
Supreme Court race."

According to unofficial results released Monday, almost 68,000 more people voted in the Democratic presidential primary than voted for Kaforsky. Sanders came in
a distant second to Biden, but he still received about 293,652 votes.

What seems clear is that most voters cast their ballots before Tuesday, heeding the government warnings against large crowds and voting by mail instead.

While the total number of absentee ballots cast isn't yet known, nearly 1.1 million ballots were returned as of Monday, the deadline set by a federal judge for when
ballots must be received by clerks.

Burden said absentee voting was "completely off the charts" in this election .

"Absentee voting is a new process for a lot of Wisconsinites," Burden said. "This
is a state that has relied mostly on face-to-face
voting at traditional neighborhood polling places. That got turned upside down in this April election."
Both political parties took advantage of this. Milwaukee and Dane County — both Democratic strongholds — led the way, but the Republican-friendly Waukesha
County was right behind them.

But Karofsky cut into Kelly's numbers in Waukesha, Washington and Ozaukee counties compared to the 2019 Supreme Court race that sent conservative Justice
Brian Hagedorn to the bench. She also won Brown, Outagamie and Winnebago counties in east-central Wisconsin. All three were won by Hagedorn in 2019, Walker
in 2018 and President Donald Trump in 2016.

Coleman said when the state Supreme Court results are broken down by congressional district, they strongly resemble Wisconsin's Democratic U.S. Sen. Tammy
Baldwin's double-digit victory in 2018.

Coleman said it was noteworthy that Wisconsin's 3rd Congressional District, held by U.S. Rep. Ron Kind, D-La Crosse, went overwhelmingly to Karofsky after being
carried by Trump in 2016. He said other statewide races since 2016 had followed the same pattern.

"Karofsky would have carried the Kind district by about 15 points, so that's a pretty substantial change," Coleman said. "Trump's win in the 3rd District is looking
more like the exception than the rule."

Coleman cautioned against reading Karofsky's win as an indicator of how November's election would turn out, saying judicial races in Wisconsin "tend to be pretty
volatile."

Burden urged similar caution.

"I think it's

difficult to draw much of a line between what happened in this race and what we'll see in
November other than there's a lot of voter interest," Burden said. "For a million-and-a-half people to
participate in the midst of a pandemic is impressive."
 2nc Uniqueness – Midterm Election Results

Midterm election proves trends conclude negative --- voter turnout was a record high
Anapol, 18 (12/10/18, Avery, “More than half of eligible voters cast a ballot in midterms: analysis,”
https://thehill.com/homenews/campaign/420637-more-than-half-of-eligible-voters-cast-a-ballot-in-
midterms-analysis, accessed on 12/30/18, JMP)

An election turnout expert says that more than half of eligible voters turned out to cast a ballot in last
month’s midterm elections, a record-high in modern history.

Michael McDonald, an associate professor of political science at the University of Florida, estimates that
118 million people voted in the midterms, about 50.1 percent of eligible voters, according to CNN.

That turnout is about 11 points higher than the average for midterm turnout of 39.4 percent in at least
the past three decades, since 18- to 20-year-olds became eligible to vote.

In 2014, 83 million people turned out to vote.

CNN’s analysis said that it’s not yet clear which party benefited more from the high turnout, but noted
that it was “certainly beneficial” to Democrats, who ended up taking back the House but failed to flip
control of the Senate.

A number of states with closely watched elections saw record-high early voter turnout in the days
before Nov. 6, including Texas and Florida.

This year’s midterm elections also saw Latino voter participation rates at more than double 2014 levels.
 AT: Conservative Court Inevitable

Link controls the direction of uniqueness --- conservative court is inevitable IF

progressive opposition gets diluted.

And, even if a conservative court exists, our argument is that opposition will
discourage it from overreaching which is a key threat to democracy. That’s McElwee

***note when prepping file --- a longer version of this card is the block “AT: Courts are
Progressive / Can Be Reformed”

Progressive opposition empirically forces changes in Court behavior --- Lochner era
proves
McElwee, 18 --- writer and researcher based in New York City and a co-founder of Data for Progress
(5/4/18, Sean, “Democrats Are In Denial About The Supreme Court,”
https://www.huffingtonpost.com/entry/opinion-mcelwee-supreme-
court_us_5aeb317ae4b041fd2d23f8db, accessed on 12/19/18, JMP)

Fight Fire With Fire

In the infamous Lochner era of the early 20th century, the Supreme Court was controlled by
reactionaries who invented legal doctrines whole cloth so they could strike down laws limiting the
length of the workweek, laws banning child labor, minimum wage laws and other progressive legislation.
Now, as we enter a new Lochner era, most Democrats believe the court is a neutral arbiter of law and
norms, an umpire calling balls and strikes (a view Roberts has promoted in word but not in deed).

The Lochner era ended in part because progressives like Franklin Delano Roosevelt
condemned the court’s interventions. Today, progressives can, and should, take steps to
inform their voters and activists about the court. Senators like Michael Bennet (D-Colo.), who are willing
to empower the reactionary right despite living in bluish states, should be held accountable for voting to
confirm conservative justices. Progressives should also make voters aware of the reality that
Republicans have explicitly fought to keep women, gay people and people of color off the federal bench
through blue slipping.

In addition, the power of video has been shown, from the embarrassing grilling in December of federal
judicial nominee Matthew Petersen (leading to his withdrawal) to nominee Wendy Vitter refusing to say
last month whether she thought Brown v. Board of Education was correctly decided. We need young
progressives to see Justice Sonia Sotomayor roasting conservatives and the ways that conservative male
justices abuse their female colleagues with rude interruptions and petty comments. Too often,
conservatives treat the court like a dorm room bull session, and voters should see that ― so we should
have video in the court.

In the meantime, we can demystify the court by demanding same-day audio for all arguments; currently,
the court releases audio only on Friday afternoons, when the news cycle is over. Same-day audio has
been granted for just two cases in recent years, Obergefell and the Trump travel ban case. If
progressives called on media to routinely request same-day audio, the court might feel compelled to
comply.

Conservatives have powerful, well-funded organizations, such as the Federalist Society and Judicial
Watch, that seek to create another generation of conservative justices. The Federalist Society, for
instance, is largely responsible for the rapid clip of Trump appointees: Behind the scenes, they vet and
prep Trump nominees and grease the wheels on the process. They have gone as far as to fund college
programs to create a new generation of conservative judges. Progressives have institutions like the
American Constitution Society that are meant to replicate the Federalist Society, but these institutions
tend to be less explicitly partisan. Progressives need an institution like Judicial Watch on the right that
can be an attack dog, combing Trump judges for inappropriate quotes, calling out conservative judges
acting improperly, collecting the offensive and homophobic statements by judges like John Roberts and
documenting the partisan nature of the court.

We are in a second Lochner era, in which the court threatens to strike down a progressive agenda
with the slightest pretense. There is some evidence this is changing, with the rise of groups like
Demand Justice that aim to mobilize Democrats on court issues. These groups need attention from
Democratic donors and activists, because there is a real chance that whatever progressive gains on
voting rights, health care or gun control Democrats create post-2020 will be rolled back by an
emboldened court.

The court feels comfortable because they are seen as a nonpolitical institution. Voters must understand
that judges are politicians in robes, and that, right now, conservatives have an unchecked majority . It’s
time for progressives to start taking the court seriously.
 2nc Link – Progressive Victory Quiesces Opposition

Progressive victories empirically quiesces liberal opposition to the Court --- transforms
the perception that the Court isn’t purely conservative and allows it to undermine
rights
 abortion rights, marriage equality, campaign finance restrictions, voting rights, affirmative
action, and the separation of church and state

Stern, 18 --- covers courts and the law for Slate (10/4/18, Mark Joseph Stern, “How Liberals Could
Declare War on Brett Kavanaugh’s Supreme Court; His confirmation might pave the way for a full-blown
constitutional crisis,” https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-
constitutional-crisis.html, accessed on 12/13/18, JMP)

By all indications, Brett Kavanaugh is about to be confirmed to the Supreme Court, where he will
become part of a five-justice conservative bloc that will swiftly roll back decades of progressive
jurisprudence. His confirmation will be a major victory for the Republican Party and its leader, Donald
Trump, who will soon succeed in entrenching GOP control over the court for at least a generation. But
as soon as Kavanaugh takes the oath, he will plunge the Supreme Court into a legitimacy crisis that could
weaken its power over the long term. This crisis will become particularly acute if Democrats retake
Congress and the presidency but find their reforms stymied by a reactionary judiciary. The broad
consensus over the court’s authority to interpret the Constitution will crumble. If that all comes to pass,
Kavanaugh’s appointment may come to be seen as a Pyrrhic victory not just for Trump but for the
entire conservative movement.

The Supreme Court has always needed buy-in from the political branches to enforce its rulings. As my
colleague Dahlia Lithwick wrote in 2016, the court “relies on us to believe that it’s magic. The power and
legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom
surrounding it, the court is doing just fine and always will be.” Remarkably, throughout most of
American history, this magic trick has worked. It came closest to collapse after 2000’s Bush v. Gore,
when five Republican appointees justices indefensibly elevated their preferred candidate to the
presidency. At that point, liberals could have declared war on the court, challenging the central role it
had assumed in American politics.

They didn’t, for two reasons: Sandra Day O’Connor and Anthony Kennedy. The two swing
justices handed the left a stream of victories following Bush v. Gore, upholding affirmative
action, affirming campaign finance restrictions, strengthening Roe v. Wade, striking down sodomy bans,
and securing the rights of Guantanamo detainees. After the hard-line conservative Justice Samuel Alito
replaced O’Connor, the court lurched rightward, weakening Roe, gutting campaign finance laws, and
undermining voting rights. But because Kennedy still delivered the occasional
progressive victory—most notably, his marriage-equality rulings—Democrats still tended
to see the court as moderate and equitable.
Democratic approval of the court plummeted after the GOP blockaded Merrick Garland, Barack Obama’s
final SCOTUS nominee, and instead allowed Trump to appoint the far-right Neil Gorsuch. But while
plenty of progressive advocates and politicians insisted that Gorsuch was an “illegitimate” justice in a
“stolen” seat, few seriously contested the validity of his votes. That’s probably because Gorsuch didn’t
alter the balance of the court and wasn’t a flagrant partisan (despite some ethical lapses). During his
confirmation hearing and on the bench, Gorsuch behaved more or less like a judge, not a GOP operative
out to do his party’s bidding.

Kavanaugh is different in all respects. He will drag the court far to the right, eroding
Roe, marriage equality, campaign finance restrictions, voting rights, affirmative
action, and the separation of church and state. Democrats’ respect for the court, already
diminished, will plunge to new lows each time Kavanaugh casts the fifth vote in a controversial 5–4
ruling.

But most important is Kavanaugh’s image as both a partisan pugilist and an alleged sexual abuser.
Democrats overwhelmingly believe Christine Blasey Ford’s accusation that Kavanaugh sexually assaulted
her. They’re disgusted by the extensive reports of his allegedly boorish conduct throughout high school
and college, including lewd sexual jokes, heavy drinking, and alleged indecent exposure. And they’re
convinced that Kavanaugh lied about this behavior under oath in his testimony last week—when, in an
unprecedented display of partisanship, Kavanaugh lashed out against Democrats and the broader
American left.

No matter how courteously Kavanaugh behaves on the court, many Democrats will always see him as
the man who blamed “friends of the Clintons” for trying to thwart his confirmation. They will dismiss his
votes as the product of political bias. It might not matter much at first: So long as Republicans maintain
their grasp on power, they can enforce the court’s decisions through legislation, executive orders, and, if
necessary, the National Guard.

But what happens when Democrats take back the legislative and executive branches? What if
Democrats pass Medicare for All, and the Supreme Court strikes it down, with Kavanaugh casting the
decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the
president and Congress ignore the ruling. And what if they do? What happens if the Department of
Health and Human Services just … implements the law anyway? It’s easy to envision the presidential
statement: As the chief executive, it is my duty to enact this legislation, passed through the democratic
process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court. The federal government,
acting on orders of the president, opens enrollment, and Congress appropriates the funds as planned.
What can the Supreme Court do? Send its tiny police force to storm the White House?

Or imagine if the court abolishes affirmative action, and some state—say, New Jersey—refuses to
comply. Or what if the court strikes down California’s independent redistricting commission, granting
state legislators untrammeled ability to gerrymander congressional districts, and the governor insists on
preserving it? The same goes for all manner of progressive reforms that could be on Kavanaugh’s
chopping block, such as minimum wage laws and public financing of elections. Blue states may be
pressured to disregard his decisions. And the president could decline to compel them to follow the high
court’s rulings.
In 2003, Justice Stephen Breyer referred to the “miracle” of national compliance with the court’s edicts,
even in the wake of “controversial decisions” like Bush v. Gore. There is nothing inevitable or self-
sustaining about this “miracle.” Courts do have some tools to mandate adherence to their orders—
namely, their ability to hold individuals in contempt of court. But judges will surely hesitate to hold
governors, legislators, and Cabinet secretaries in contempt. The truth is that we haven’t seen
massive resistance to the Supreme Court since the segregation battles of the 1950s
and ’60s. And despite two presidents’ celebrated efforts to integrate schools with the help of the
National Guard, the South’s resistance succeeded in slowing the pace of desegregation.

This precedent is appalling. But it demonstrates that the playbook can work. Progressives
should recognize the danger in adopting the tactics of segregationists. Getting to the point of massive
liberal resistance to the court would require a significant psychological shift, since the left has long
viewed the Supreme Court as a saving grace. Kavanaugh’s confirmation alone won’t bring Democrats all
the way there. But if he leads the court into a frenzy of reactionary jurisprudence, progressives may feel
they have no other alternative.

No matter the end result of liberal defiance, it will likely transform the Supreme Court’s legitimacy crisis
into a full-blown constitutional crisis. Kavanaugh’s confirmation will have poisoned the foundation of the
judiciary’s authority. The Supreme Court derives its power from the belief that it sits above the political
fray. Brett Kavanaugh is poised to shatter that illusion.

Liberal decisions empirically renew faith in the Court but don’t change its conservative
foundation --- judicial supremacy ensures rollback of progressive goals
Kraemer, 15 --- former dean of Stanford Law School, constitutional historian and president of the
William and Flora Hewlett Foundation (7/6/2015, Larry, “The Supreme Court’s Power Has Become
Excessive,” https://www.nytimes.com/roomfordebate/2015/07/06/is-the-supreme-court-too-
powerful/the-supreme-courts-power-has-become-excessive, accessed on 12/28/18, JMP)

“You must vote,” I often hear, “because the next president will pick who sits on the Supreme Court!”
That such a statement should even be made tells us that something has gone seriously wrong with our
democracy. Certainly the Supreme Court has a role in American government, but not the overblown one
it has come to play.

Liberals are happy with the court right now, because they got some big wins in
June. I happen to like those outcomes, too, but I don’t understand why progressives would overlook
how the court has systematically done its best to undermine everything they care about for the past
40 years — as it likewise did for the first 150 years, until the Warren Court flipped things around for a
short time in the 1950s and 60s. Plus, the outcomes last week could just as easily have gone the other
way, and then what? Do same-sex couples think they had no rights before the Supreme Court spoke,
and have rights after only because five justices said so? What if Justice Kennedy had woken up on the
other side of the bed the day the court ruled?
This is not a left/right point. It’s a point about how the meaning of our Constitution should be finally
determined. Is it really the case that the fundamental law of the land, made by “We, the People,”
depends on the ideologically driven whims of five lawyers?

There is a place for judicial review in constitutional democracy, just not for judicial supremacy. The idea
that the justices have final say over the meaning of our Constitution — that once they have spoken, no
matter what they say, our only recourse is the nearly impossible task of amending the Constitution or
waiting for some of them to change their minds or die or retire — ought to offend anyone who believes
in democratic government.

It rests on a myth: that the court needs this overweening power to protect minorities. Yes, the court has
occasionally done so, but much more often it has done the opposite. Time and time again, we have
seen it take political movements and legislation to get rights and make them secure. Virtually no
progress was made on race, after all, until Congress enacted the Civil Rights Acts of 1964 and 1965 —
laws the Supreme Court has been working hard for years to weaken and destroy. That the people who
wrote and ratified our Constitution wanted or expected the court to have such power is a fairy tale.
They emphatically did not fight a revolution to replace a monarchy with an oligarchy.
 2nc Link – Opportunistic Collusion

Opportunistic collusion with Courts prevents progressives from effectively challenging

judicial supremacy --- conservative control ensures rollback of affirmative action and
abortion rights and more corporate dominance
Moyn, Professor of Law and History at Harvard, 18 (10/5/2018, Samuel, “Resisting the
Juristocracy,” http://bostonreview.net/law-justice/samuel-moyn-resisting-juristocracy, accessed on
11/28/18, JMP)

That Democrats fought the nomination of Brett Kavanaugh to the Supreme Court tooth and nail was
entirely understandable, especially after Christine Blasey Ford’s allegations of sexual assault. With
yesterday's events making Kavanaugh’s confirmation a near certainty today, everything now depends
on how liberals and progressives decide to respond to the hard fact of right-wing control of the
imperial judiciary. The answer is obvious: the United States is supposed to be a democracy, not an
empire.

Affirmative action will be the first to go, with Justice Kavanaugh’s vote. A federal abortion right is also
on the chopping block, with the main question remaining whether it will die in a single blow or a
succession of smaller ones. The First Amendment will continue to be “weaponized” in the service of
economic power, as Justice Elena Kagan put it last term. And the rest of constitutional law will turn into
a defense of business interests and corporate might the likes of which the country has not seen in a
century.

Which brings us back to Franklin Roosevelt’s mistake and our opportunity. The last time the court was
converted into a tool of the rich and powerful against political majorities, Roosevelt tried to pack the
court. Once the Democrats had finally gathered enough political will to stand the Court down, Roosevelt
told the American people in March of 1937 that it was time to “save the Constitution from the Court and
the Court from itself.”

But the Constitution is what got us here, along with longstanding interpretations of it such as Marbury v.
Madison that transform popular rule into elite rule and democracy into juristocracy. Only because of the
constitution do Democrats have to battle in a political system in which minorities take the presidency—
twice in our lifetime. Only because of a cult of the higher
judiciary do Democrats find
themselves facing an all-powerful institution set to impose its will on a majority
of Americans who would decide things differently.
And only because everyone knows that our system empowers constitutional judges to an extraordinary
extent to make enormous policy decisions did Americans have to live through this latest national drama.
Ironically, in this recent circus, the topic of the law itself disappeared as the lens focused successively on
whether an assault occurred, what kind of investigation was proper, and if judicial “temperament”
mattered. But then, prior confirmation battles had already pushed the actual legal views of nominees for
the Supreme Court out of view.
The United States, Roberto Unger once wrote, is distinguished by “the single-minded focus upon the
higher judges and their selection as the most important part of democratic politics.” This syndrome is
reflected in the left as well as the right, and their choice over the decades “to obtain from judges, under
the cover of improving interpretation, the advances popular politics fail to deliver.” Yet, in democracies,
it is the people who are supposed to write their own laws. The limits of this longstanding judicial
strategy were clear long before the left failed to block Kavanaugh, which means the only progressive
move now is to reclaim democracy.

Consider the alternatives. In the face of a solid conservative majority for years to come, there is no
doubt that many (both inside and outside the court) will look hopefully to Chief Justice John Roberts as
the new swing vote and treat him, as they did Anthony Kennedy, as the new “centrist” to lure. But
Roberts will defect far less regularly than Kennedy. For the more radical, it will seem tempting to
complain—as Roosevelt did—of the betrayal of the Constitution. Yet the last constitutional revolution in
the name of democracy, at the height of the New Deal, ended up setting the stage for fifty years of illicit
judicial empowerment, in part because it merely pushed judges into promising to exercise restraint.

In the face of an enemy Supreme Court, the only option is for progressives to begin work on a long-
term plan to recast the role of fundamental law in our society for the sake of majority rule—
disempowering the courts and angling, when they can, to redo our undemocratic constitution itself.
This will require taking a few pages from the conservative playbook of the last generation. It is
conservatives who stole the originally progressive talking point that we are experiencing “government
by judiciary.” It is conservatives who convinced wide swathes of the American people that it is the left,
not the right, that too routinely uses constitutional law to enact its policy preferences, no matter what
the text says. The truth is the reverse, and progressives
need to take back the charge they
lost. To do so, they need to abandon their routine temptation to collude with the
higher judiciary opportunistically. Progressives must embrace democracy and its risks if they
want to avoid the stigma of judicial activism that still haunts them from the past.

Even though the right turned to judicial fiat far more frequently, liberals
have taken a long time
to give up on black-robed power to enact their preferences. This was most notable in
decisions around the right to privacy and so-called “substantive due process.” In making such choices in
cases ranging from Roe v. Wade (which secured abortion rights) to Obergefell v. Hodges (which legalized
same-sex marriage), liberals entered an unholy alliance with Kennedy, Kavanaugh’s predecessor, to
advance gay and women’s rights on a libertarian rationale—defending the free choice of individuals
independent of state control—even though that rationale mostly serves business interests in most areas
of law. The endangerment or even loss of precedents that the left cares about (such as Roe) is going to
be a grievous blow, and no one should celebrate that outcome. But if it is going to happen anyway, then
it is time to pivot to a democratic strategy to protect what we care about.

Instead of terrorizing the court into moving through various court-packing schemes, it is a much better
and bolder choice for the left to stand up for reforms that will take the last word from it. Jurisdiction-
stripping statutes, tools to bar the judiciary from considering cases on certain topics such as abortion
or affirmative action, are not clearly unconstitutional even under current legal doctrine. Indeed, the
right has used such statutes for years to limit access to courts for immigrants and prisoners. Other
changes in customs and precedent could also weaken judicial supremacy. For example, by choice under
pressure or compulsion through law, the Supreme Court could evolve into an advisory body, especially
when the justices disagree. Such steps would force progressives to take their case to the people to win
majorities for their policies, including in places across the country they have given up for lost.

The United States still looks to the higher judiciary to act on behalf of the country’s principles and
values, even when basic study proves that judges are partisan and that partisanship only increases
when they are given the power to decide the highest stakes questions . The mythology of constitutional
law dies hard. The notion that empowering judges would serve progressive outcomes is a flickering
star that collapsed long ago, and it is long since time to accept the dying of the light. A legal culture less
oriented to the judiciary and more to public service in obtaining and using democratic power in
legislatures at all levels is the sole path to progress now. In fact, it always has been.
 Opposition => Changes in the Court

Progressives are mobilizing to constrain the Court --- opposition empirically puts
pressure on the Court to moderate its conservative overreach
Blumenthal, 18 --- reporter at HuffPost, previously worked as the senior writer for The Sunlight
Foundation (11/25/18, Paul, “Kavanaugh And Gorsuch Confirmations Force Progressives To Rethink
The Supreme Court; The new debate is about how best to challenge the court’s power,”
https://www.huffingtonpost.com/entry/supreme-court-kavanaugh-
gorsuch_us_5bf806e3e4b0771fb6b8489a, accessed on 12/18/18, JMP)

The recent confirmation of Brett Kavanaugh to the Supreme Court and Republicans’ 2016 stonewalling
of Merrick Garland have upended liberals’ view of the Supreme Court as a protector of key
constitutional rights. Now, progressives are starting to talk about how to challenge the power of the
sitting Supreme Court.

The issues under discussion range from process reforms like ending lifetime appointments and enacting
recusal and ethics laws to stripping the court of jurisdiction and retaking “stolen” seats. Many of the
ideas have been debated by legal scholars in decades past, but the rise in interest among progressive
political partisans is decisively new. And even though opinions on the path forward diverge, and
lawmakers have yet to jump on the bandwagon, the discussions are evidence of a new adversarial
posture toward the court for progressives and the Democratic Party.

The disempowerment that progressives are feeling is one familiar to conservatives who have long
viewed the court with a mix of suspicion and outright hostility.

“Progressives have felt that they were well taken care of in the judiciary and that we had secured a lot of
important rights with this past litigation mid-century and that was going to be the way we would defend
our gain,” Todd Tucker, a legal scholar at the progressive Roosevelt Institute, said.

The same 20th-century rulings led by chief justice Earl Warren’s court and and the early years of chief
justice Warren Burger’s term in office that progressives have long sought to defend ― the end of
segregation, the ban on compulsory school prayer and the legalization of abortion ― galvanized
conservative Christians into a political bloc within the Republican Party. They were joined by business
conservatives looking to roll back rules and regulations established from the New Deal through the
consumer safety and environmental protections of the 1970s.

The fervent opposition to these court rulings led to a better understanding among grassroots
conservatives of the court as a political entity that could be changed over time. It also birthed a
decadeslong campaign to remake the court as the conservative bulwark it had been for most of its
history.

In the past two months, progressives have started a similar debate on how to reform the court in
opinion pieces, legal white papers, roundtables and partisan activism efforts.

Reforms On The Table

Legal scholars have been debating the idea of 18-year term limits for justices since at least 1986. This
reform would allow each president to appoint two new justices per four-year term. Justices who are
term-limited off of the Supreme Court would not leave the judiciary but would rotate out to ride the
circuit courts. Some argue it is a way to lower the political temperature of confirmation hearings and is
constitutionally plausible (although definitely not bulletproof). Vanderbilt University law professor
Ganesh Sitaraman, however, said at a recent event hosted by the American Constitution Society that it
actually raises the political stakes by making every single presidential election a referendum on the
Supreme Court.

The imposition of term limits and other issues related to the personnel of the court misses the real
problem at hand, Aziz Huq, a law professor at the University of Chicago, argued at the “Reforming The
Court” panel. “We are having this conversation because the court is powerful,” Huq said at the New
America Foundation, which was hosting the event. For that reason, he said, progressives, “need to limit
the power of the court.”

Huq’s answer is for Congress to strip the court of jurisdiction over specific issues by limiting what cases
the court can hear through the Exceptions Clause. That may sound crazy ― and some scholars think it is
― but it’s in no way unheard of in American politics. Congress has routinely increased the breadth of the
Supreme Court’s jurisdiction, so why can’t it limit it?

Limiting the Supreme Court’s ability to hear cases was long a cause of populists and progressives in the
late 19th century and early 20th century. The court’s pro-business rulings from the Gilded Age through
the Lochner-era Court in the early 20th century prompted protest from progressive lawmakers. After the
court struck down a law to ban child labor ― one of many such laws regulating corporate behavior
struck down at the time ― progressives introduced legislation to allow Congress to override Supreme
Court decisions, require a supermajority vote on the court to nullify enacted laws and strip the court of
jurisdiction over laws banning child labor.

Conservatives took up the mantle of attacking the court’s power in the 1970s and 1980s by introducing
bills to strip the court of the ability to hear appellate cases related to school prayer, school busing,
abortion, the male-only military draft, police arrests and cases arising from state court decisions.

None of these bills ever passed. Instead, during the stretch of time from the Gilded Age all the way to
the late-1980s Congress has increased the power of the Supreme Court by expanding its jurisdiction and
discretion to hear cases.

Adding new justices to the Supreme Court is another idea increasingly popular among those
progressives angered over the Kavanaugh and Garland decisions. The Constitution does not set the
number of justices in stone and the number of justices has fluctuated over the years, bumping up to 10
during the Civil War. It has been set at nine since 1869.

The issue is obviously controversial as it would allow one political party to change the personnel of the
court to get the partisan outcome they desire. If one party does it, then what’s to stop the other party
from doing the same the next time they have a chance, Sitaraman argues.

But at least one progressive push to pack the court has already begun. 1.20.21 is a public education
campaign run by political scientist Aaron Belkin and backed by noted liberal Harvard Law School
professors Laurence Tribe and Mark Tushnet to get progressives behind the idea of packing the court in
2021 if they have won the necessary political power to do so.

Belkin, who helped organize the opposition to the Pentagon’s Don’t Ask, Don’t Tell policy, wants to
reverse the “judicial theft” of the seat Garland was denied by having the next Democratic president
appoint two new justices. The Kavanaugh seat should also be offset by two newly appointed justices in
response to disastrous nomination process and failure to fully investigate the allegations of sexual
assault against the judge, he says. That would bring the Supreme Court up to a total of 13 justices.

“The point of the project is to unsteal the courts,” Belkin said.

This argument is pretty simple and straightforward and ignores many problems that legal scholars tend
to fuss over. Will it raise the political stakes? Will it bring stability to our democratic institutions? Who
cares, Belkin says.

“To say that Democrats shouldn’t unsteal the courts because we’re worried about the normative
context, I think, is to ignore the very normative context that we’re already in,” he said.

The norms are already gone. What matters to Belkin, and one imagines a lot of Democrats, is justice.

The plan for this campaign is, in many ways, like the ongoing conservative effort to establish and
maintain control of the Supreme Court. It’s a public
education campaign to inform
progressives about the past and present conservative history of the court and
keep the memory of the stolen Garland seat fresh. Grassroots progressives would then pressure their
elected officials to back a plan to pack the court.

Do Lawmakers Care?

These ideas and the debate around them may be percolating among progressives think tanks and online
activists, but they haven’t broken through yet with the most important crowd: elected lawmakers. So
far, Democrats in Congress have shown little enthusiasm for these ideas, or for really any ideas about
changing the Supreme Court at the moment. Rep. Jerry Nadler (D-N.Y.), the incoming chairman of the
House Judiciary Committee, said he wasn’t interested in impeaching Kavanaugh for his alleged lying
during his confirmation hearings. And only one sitting member has openly backed adding new justices.

Rep. Ro Khanna (D-Calif.) says he supports adding justices to court not as justice for a stolen seat, but as
part of a broader effort to stabilize the court and enable it to hear more cases. Khanna supports the
addition of new justices requiring a supermajority vote of either 60 or 67 senators and the end of
lifetime appointments.

“The idea that you’re appointed by a president and then could be influencing the nation 40 to 50 years
down the line is highly counter-majoritarian,” Khanna said. “You’re binding future generations with little
accountability to a democratic will.”

What Might Spur Action

The current Court led by chief justice John Roberts has been known for rulings rolling back progressive
legislation, including the 2010 Citizens United ruling that legalized unlimited corporate spending on
independent political efforts. That decision has animated progressives across the country along with the
2013 Shelby County decision overturning part of the Voting Rights Act, which similarly drew broad
condemnation. But the post-Anthony Kennedy court has yet to issue a ruling, much less one that defines
its perfidy to progressives. That time will come , though.

Caroline Fredrickson, the ACS president, is most concerned about rulings that deal with democracy like
the Shelby County and Citizens United decisions. Future rulings further limiting the Voting Rights Act,
preventing states from limiting gerrymandering or gutting campaign finance laws could be easily seen as
partisan attempts to help the party that appointed the five conservative justices and, thus, destroy trust
in the judiciary.

For Tucker, the scholar at the Roosevelt Institute, the big worry comes from this conservative court
striking down progressive legislation meant to deal with climate change.

“Once you start to look at the aggressive Green New Deal policies that climate scientists say are
necessary to head off these irreversible impacts over these next 10 or 20 years, that is where you’re
going to see the rubber hit the road,” Tucker said. “Some of that is going to inevitably interfere with
property rights, and you have to have a court that’s willing to accommodate that.“

And if the court doesn’t agree, progressives will at least have started this policy discussion years earlier
to help guide them towards a forward.

A Switch in Time?

As progressives are discussing their path to taming the court, the debate over
these proposals may be serving its own purpose, according to Amanda Frost, a law
professor at American University.

“I’m not a fan of packing the court or term limits, but I’m not afraid of talking about it,” Frost said.

Talking about it puts political pressure on the court. That is the real lesson of
President Franklin Roosevelt’s failed attempt to pack the court in 1937, Frost argues.

Roosevelt’s court-packing scheme is remembered as an extreme overreach of power, but the

pressure it brought to bear on the court may have forced at least one justice to
abandon the pro-business Lochner-era jurisprudence to uphold the minimum wage.
Justice Owen Roberts’ flip to the liberals on the issue of the minimum wage ― “the
switch in time that saved nine” ― is remembered as the birth of the New Deal
Court which also put a nail in the coffin of Roosevelt’s court-packing plan. Roberts’ flip made the
packing plan redundant.

There’s another Roberts sitting as the swing justice today. Maybe the current chief justice will listen to
public pressure when it comes calling 10 or 20 years down the line. Part of the present problem,
however, is that progressives already know that he won’t.
 AT: This is a Good Judicial Action

Even if the plan is productive the Courts are not necessary AND it just encourages
liberals to cling to the anti-democratic institution --- only democratic politics can serve
progressive ends
Moyn, professor of law and history at Yale, 20 (Winter 2020, Samuel, Dissent, “The Court Is
Not Your Friend,” Volume 67, Number 1, Winter 2020, pp. 70-75, https://muse.jhu.edu/article/746008,
accessed on 5/1/2020, JMP)
It has been over a year since Brett Kavanaugh took his seat on the Supreme Court. More evidence of his assault of Christine Blasey Ford, though by no means
conclusive, has been presented in the first of several slated books about the newest oracle of the law and the pitched battle around his confirmation. Yet such
attention to any justice, and his ideology or indiscretions, risks missing the point: that it is only because the Supreme Court is so powerful that the national
obsession with either a judge's character or views can become so intense. Whatever else it involves, juristocracy is also a form of politics by other
means. And it is not one that progressives should want.
Yet in the past half century they have been principally responsible for it. From its late nineteenth-century conservative beginnings to the mid-twentieth-century
liberal attempt to make it their own, juristocracy
has been a triple failure of authority, process, and substance. It has
been a disaster for the democratic premise that the people themselves choose their own arrangements,
shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in
exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular
interests and needs require. Only democratic politics can.
We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling
"judgment" and "will." It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked
interpretations of judicial power that conceal the ideological choices that saying "what the law is" inevitably involves. No wonder, then, that democratic theorists
have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are
disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain.

But juristocracy is a congenitally American malady. Turning to judges as secret agents of political transformation is quite another matter. When the U.S. Constitution
first became attractive in the late nineteenth century, it was among conservatives facing the frightening prospect of mass suffrage and finding in James Madison's
handiwork a device for potentially weathering the coming tempest. Englishman Sir Henry James Sumner Maine, to take one example, sang the praises of the U.S.
Constitution as "the most important political instrument of modern times" in his Popular Government (1885), for it "proved" the existence of "several expedients"
that would allow the "difficulties" besetting any country "transforming itself" into a democracy to be "greatly mitigated" or "altogether overcome." Unsurprisingly,
the powers of the U.S. Supreme Court ranked high on the list of such "expedients."

American constitutional practice in this era reflected these antidemocratic virtues. American conservatives retrieved from obscurity the case of Marbury v. Madison
(1803), which according to myth proclaimed the power of judicial review of legislation under the Constitution (though in reality it did no such thing). Judges
suddenly began invalidating more statutes, throwing out progressive legislation at both federal and state levels. It took the strife of the Great Depression, and fear
of Franklin Roosevelt, to cow the institution into getting with the progressive program.

Political scientists who have studied the conditions for the exercise of judicial power have claimed it generally follows the democratic will. But no one should
minimize the energy and time it can take for judiciaries to catch up to majorities. As a triumphant FDR observed in 1937, "Ultimately the people and the Congress
have had their way. But that word 'ultimately' covers a terrible cost."

Within the span of two decades, unfortunately, progressives had embraced a judiciary they once scorned. Fears of a conservative minority imposing itself on
democratic legislatures gave way, during the Second World War, to concerns about a tyrannical majority overriding civil liberties. Lost were liberal convictions that
the tyranny of powerful and wealthy minorities was more likely to win in the courts. Then, in the postwar era, phobias about mass politics mounted as Western
governments sought to distinguish themselves from fascism in the past and communism in the present. Anxious progressives looked to the judiciary to guard
against mob rule while ushering in modest reforms, laying the groundwork for the golden age of liberal activism.

Since then, in the popular mind of Americans, the

judicial supremacy that liberals embraced in the middle of the
twentieth century has been seen as a civic necessity of any democracy , just as it has been a self-evident good in its
outcomes. For most of modern history, progressives around the world would have blanched at the first assumption; historians and lawyers in the know have spent
the last generation watching conservatives rule from the throne that liberals constructed, wondering whether the second is actually true.

The returns for converting democratic politics into judicial selection have been very meager for the left.
The point is not to gainsay some good things that judges did at the zenith of liberal power. But it is
worth asking whether the courts were necessary to the outcomes —and whether it was worth
depending on an antidemocratic power that the right has now turned against progressives .

On race, to take the most romanticized accomplishment, school

integration in the South didn't genuinely begin until a full ten
years after the Supreme Court's landmark decision Brown v. Board of Education (1954), precisely because it ultimately
required federal legislative action. And yet, more than sixty years after Brown, apartheid is institutionalized
functionally rather than formally. There are a mere three years of progress (between 1964 and 1967) to show for those running victory laps for
the judiciary. Distressingly, data shows that school integration in the North, achieved only partially there to begin with, has been even more undone.

As for the struggle for women's and gay rights, there is also no doubt the Supreme Court played a role.
But the counterfactual is always: compared to what alternative method? Feminists abroad made greater
strides than ever occurred in the United States without generalized recourse to judges, while there is no
telling what democratic mobilization for gay rights would have gotten under its own power had not the
Supreme Court intervened in Obergefell v. Hodges in 2015—without allowing conservatives to pose along the way as the best friends of
democratic choice, as Justice Antonin Scalia did constantly, with Chief Justice John Roberts following suit in Obergefell itself.

The objection that there may be territories in the country that would surely reject abortion (as well as gay marriage) if it were opened to a vote is a serious one. But
the Supreme Court has, as with school integration before it, already acted to allow those states to eliminate abortion (though not gay marriage) de facto. And the
reactionary judicial power that liberals helped conjure does not respect the boundary between red and blue America. Bush v. Gore picked a catastrophic president
for the whole country. In more recent years, Citizens United converted national elections into contests pitting oligarch-funded candidates against each other. Janus
v. AFSCME pounded another nail in the coffin of public unions. And if
a fair verdict on juristocracy is to be reached, it is also
worth recalling when an empowered judiciary undermined democracy by failing to act, with the effect of
ratifying a near monopoly of executive power on issues like securing the borders against immigrants and
fighting enemies endlessly beyond them.
It would be lovely to rely on juristocrats if they patrolled the procedures of the democratic process itself, making sure winners could not lock in their gains by
gaming the rules in elections. Surely the judicial affirmation in the United States of basic principles—since they are absent from the Constitution itself—that
everyone's vote ought to be treated equally is worth flagging. But the
judiciary has never done much to reinforce the
representation of racial minorities. Its more recent track record on this subject has been particularly
abysmal.
Then there is class. The drive for the moderation of economic inequality was the central explanation for the democratic victory of progressives under Roosevelt, and
the success of their campaign essentially required judges to get out of the way. But even at the high tide of their political ascendancy, liberals couldn't get the
Supreme Court to commit to distributive entitlements of any kind. Neither a welfare state for the least advantaged, nor broader egalitarian justice in the country, is
there for even the most creative judges to find under the Constitution's authority—even assuming a transformed bench.

In short, progressives
have little to lose and much to gain by leaving juristocracy to the enemies of
democracy. Abandoning judicial politics in a kind of "unilateral disarmament" may seem like a foolish
move. But liberals have already lost the race for the heavy weaponry of judicial control of democracy,
and they can advocate for the people more consistently and less hypocritically if they press their
policies democratically. There is simply no way to restrict judicial activism to one's preferred causes any
more than you can introduce a weapon in a fight with the guarantee that it will only hurt your enemies.

Some have supposed that turning to judicial power to entrench popular victory in "cycles" or "regimes" of politics is inevitable. If it happened under the watch of
Roosevelt's justices, so the next progressive coalition—after declaring war on the Supreme Court if necessary—would witness judges claw back power, or even
invite them to do so. But if
it was a progressive mistake the first time around to incur the risk of judicial
empowerment, whatever the short-term gains, why not learn from it?
The risk of seeing your means end up serving the ends of your enemies applies, of course, to democracy itself, but the risk is not the same in extent or in principle.
As its progressive critics have always insisted, juristocracy is clearly more subject to the risk of capture by
the powerful and wealthy than democratic mobilization is. Much more important, whereas judicial empowerment is defensible
only as a tool that succeeds or fails on balance in advancing democratic ends (at the price of antidemocratic means), wins as well as losses in

democratic contestation are defining and valuable features of collective self-rule. You might well lose
when you make a case to your fellow citizens. But you will definitely lose if you don't try.
In the academy, we need less preparation for constitutional politics and more for democratic engagement. Finishing schools for elites whose graduates, in the New
Deal, once set themselves the goal of serving the people's legislature have become anterooms to the judiciary, whispering in the ear of a judge as a clerk the highest
initial reward, and ascent to the Supreme Court (now totally controlled by justices who studied at either Harvard or Yale law schools) the ultimate prize.

More training for democratic practice among citizens would also counter the prestige of "constitutional theory" among scholars. That activity rose over the
timespan of progressive defeat under juristocracy, but spiked in the 1980s and 1990s, as kind of a cheerleading section intended to buck up liberal spirits in an age
of slow-motion political collapse. To read its main works is to find a lot of longing for a lost past or yearning for an unavailable future—pining for Earl Warren's
Court, or the New Deal, or a legendary period of "republican" virtue, syncopated with vague hopes for a future when friendly judges will rule.

Lately the enthusiasm for judicial empowerment has taken the form of unseemly heroine worship, with Ruth Bader Ginsburg and Sonia Sotomayor elevated to the
status of secular saints. It is a kind of juristocratic feminism among legal elites to match the reigning neoliberal one among the professional class in general. But
instead of merely reviling judges on the other side of the ideological divide while worshiping one's own,
in a pantheon of angels and demons, any serious democrat should reject the religion of the judiciary
itself. Other liberals trying to get through a dark night are clinging to the hope that , cajoled by strategic genius Elena
Kagan, John Roberts might tack to the center in a few crucial cases . The truth is that the prospect of a "centrist"

coalition is more of an anxious fantasy than a political opportunity . Even if it works, it is a distinct
improvement on full-scale reaction at the Supreme Court in the same way that a chronic disease is
better than a terminal diagnosis.
The important problem to solve in the years ahead is exactly which reform to rally around to chasten the institution. There is a coming healthy debate about which
of the different schemes on offer makes best sense, philosophically and strategically, in the short and long term. The Democratic presidential primary shows that
some movement is possible, as candidates routinely speak against the Supreme Court, and a few even toy with reform alternatives like court-packing or partisan
balance.

Among imaginable reforms, some do indeed risk what worrywarts have taken to calling "hardball" counterattacks, to which the sensible response is that the quest
for power has never been softball. But if progressives without an enduring majority in the political branches add some justices to achieve balance as they define it,
or "unsteal" the Supreme Court from Mitch McConnell, they should expect the other side to add some more seats when it wins. Reformers should also be wary of
borrowing tactics that have already been used by authoritarians abroad. When I taught a seminar on Supreme Court reform at Yale Law School last spring, an
Eastern European student always raised his hand to remind the class that the device to contain the judiciary under discussion had already been tried where he is
from—and not for the sake of democratic empowerment.

But beyond the pros and cons of reform options lies the still divisive question of principle that
progressives should face first. Is a Supreme Court lost to the right indefinitely—even assuming
Ginsburg lives long and prospers—in need of reclamation or repudiation?
Many reform schemes circle around restoring partisan equilibrium and undergirding the "legitimacy" of the institution that right-wing hijinks have eroded. That
approach would be less embarrassing had liberals not spent generations ceding reform arguments, like the democratic premise itself, to the right, in their zeal to
present the Supreme Court as a legitimate source of rule as long as they controlled it. Yet the
real problem with the liberal cause is not
really that it lost control of the judicial power it built but that it built it in the first place .

Beyond the juristocratic mistake lies a democratic opportunity without parallel in recent times.
Juristocracy or democracy? It is an easy call.
 AT: Only One Decision / No Spillover

Even single decisions can drastically shape PERCEPTION

Ura 17 – PhD, Professor of Political Science @ TX A and M (Joseph Daniel, “The Supreme Court and
Public Opinion, The Oxford Handbook of U.S. Judicial Behavior,
10.1093/oxfordhb/9780199579891.013.29, from Carrollton wiki)

Recently, though, new evidence indicates that the relationship between specific support and diffuse
support may be tighter than the standard view allows. In a prominent set of experiments, Bartels and
Johnston (2013) find that disagreement with a salient decision is sufficient to significantly
undermine individuals’ diffuse support for the Supreme Court. They write, “contrary to conventional
wisdom, a potent ideological foundation underlies Supreme Court legitimacy vis-à-vis subjective
ideological disagreement with the Court’s policy-making” (Bartels and Johnston 2013: 197). Similarly,
Scherer and Curry’s (2010) experimental study finds evidence that the descriptive representation of
African Americans in the federal judiciary is positively associated with federal courts’ legitimacy among
African Americans and negatively related to courts’ legitimacy among whites. They also find that these
effects are strongest among ideologically liberal African Americans and conservative whites. The
mediating effect of ideology on perceptions of descriptive representation for judicial legitimacy suggests
that respondents’ expectations about the political implications of the racial composition of the federal
bench also shows a connection between (expected) decisions and diffuse support. These experimental
results are reinforced by Christenson and Glick’s (2015) observational study of responses to the
Supreme Court’s decision in National Federation of Independent Business v. Sebelius (2012). They found
that individual-level agreement (or disagreement) with the decision influenced reported levels of diffuse
support for the Court. Together, these results offer a stark challenge to conventional legitimacy theory
and indicate ongoing scholarly debate about the nature of individual loyalty to the Supreme Court and
the nexus between specific support and diffuse support (Gibson and Nelson 2015). Indeed, one of the
most valuable contributions of recent research challenging traditional views of attitudes about
institutional legitimacy has been to draw renewed attention to the connection between short-term and
long-term views of institutions and to spark deeper theoretical and empirical inquiries into the nature of
legitimacy.
 2nc Turns the Case

Turns the case --- judicial action on death penalty without substantial public support
ends up getting rolled back --- preemptive action triggers a major backlash that
undermines sustainable societal change
Klarman, 15 --- professor at Harvard Law School (7/6/15, Michael, “The Supreme Court Is Most
Powerful When It Follows Public Opinion,” https://www.nytimes.com/roomfordebate/2015/07/06/is-
the-supreme-court-too-powerful/the-supreme-court-is-most-powerful-when-it-follows-public-opinion,
accessed on 4/28/2020, JMP)

The Supreme Court reflects shifting social mores at least as much as it influences them. Rulings such as
Brown v. Board of Education and Obergefell were inconceivable until enormous changes in the
surrounding social and political context had first occurred . Before Brown, President Franklin D.
Roosevelt appointed the first black general in American history, President Harry S Truman issued
executive orders desegregating the federal military and the civil service, and Jackie Robinson
desegregated major league baseball. Even in the South, black voter registration increased from 3
percent in 1940 to 20 percent in 1950, and blacks began serving on juries and in local political offices for
the first time since Reconstruction. Justice Sherman Minton noted “a different world today” with regard
to race, during the Brown deliberations, and Felix Frankfurter remarked upon “the great changes in the
relations between white and [black] people.”

Obergefell was rendered possible only by enormous shifts in attitudes and practices. The number of
states forbidding discrimination based on sexual orientation increased from zero in 1980 to over 20 by
2015. In 1992, not a single Fortune 500 corporation extended benefits to the partners of gay employees,
but in 2015 the vast majority of them do so. In 1990, fewer than one American in four supported gay
marriage; in 2015, 60 percent of them do so. At the oral argument in the Defense of Marriage Act case
in 2013, Justice Antonin Scalia noted a “sea change” in attitudes regarding gay marriage.

Judicial interventions can cause powerful political backlashes that retard the progress of social reform
movements. The court’s provisional ruling against the death penalty in 1972 generated tremendous
support for capital punishment, as 35 states quickly enacted new death penalty statutes. Similarly,
Roe’s aggressive defense of abortion rights fostered a right-to-life movement that fundamentally
reshaped American politics and arguably made abortion reform more contentious and resistant to
compromise.

Sensitive to the possibility of backlashes, justices often delay or minimize their interventions. In
Brown, the justices hedged their remedial order — school desegregation was to take place “with all
deliberate speed” — because they feared that ordering immediate desegregation would produce school
closures and violence.

Even though state supreme courts began wrestling with gay marriage in the early 1990s, the Supreme
Court did not grant review in such a case until 2012 — then ducked the issue the following year. By the
time of Obergefell, 11 states had enacted gay marriage by legislation or referendum.
By waiting until 2015 to issue a broad ruling in favor of marriage equality, the Obergefell majority
probably will have managed to forestall significant backlash. Moreover, while Brown’s opponents
thought that sending their children to integrated schools would be cataclysmic and Roe’s opponents
regard abortion as murder, a marriage equality ruling will have little direct impact on opponents’ lives.

Some state and local politicians — especially in the Deep South — may express outrage at the court’s
decision, but one cannot imagine a governor mimicking George Wallace and “standing in the courthouse
door” in opposition to marriage equality.

Progress to challenge the death penalty empirically fuels racially charged tough-on-
crime policies
Goldfarb, 16 --- Professor of Clinical Law, George Washington University Law School (Summer 2016,
Phyllis, “Matters of Strata: Race, Gender, and Class Structures in Capital Cases,” 73 Wash & Lee L. Rev.
1395, Nexis Uni via Umich Libraries, JMP)

[*1410]

1. Departure and Return of the Death Penalty

There is yet more evidence of the racial pedigree of the death penalty in America. Furman v. Georgia, 60
the 1972 U.S. Supreme Court case that temporarily halted America's death penalty, was brought to the
Supreme Court by the NAACP Legal Defense Fund, a legal organization founded by Thurgood Marshall
and dedicated to the advancement of civil rights and racial justice. 61 Those in the contemporary
movement to abolish the death penalty are known as abolitionists, a racial justice echo that voices its
link with the abolitionist movement of the nineteenth century that sought to end slavery. 62 As Evan
Mandery writes in A Wild Justice, his book about the Furman case, "everyone understood Furman to
have been about race." 63 Four years later, when the Supreme Court reinstated the death penalty in
the 1976 case of Gregg v. Georgia, 64 it was clear that this retrenchment was tied to backlash against
the civil rights movement and the civil rights advances that it had precipitated. 65 This backlash
expressed itself in a racially charged tough-on-crime movement. 66 But for the resentment of civil
rights [*1411] progress that led to restoration of capital punishment, the death penalty would have
been unavailable to the Virginia courts that imposed it on Joe Giarratano in 1979. 67 Long after its
abolition in most Western democracies, the death penalty survived in America, a relic of America's
centuries-old and still highly charged racial dynamics. 68

Decisions before the public is ready result in backlash --- judicial review does more
harm than good
Ford, 16 --- professor of law at Stanford (5/10/2016, Richard Thompson Ford, “On Rights, the Supreme
Court Has Done More Harm Than Good,” https://www.nytimes.com/roomfordebate/2015/07/06/is-the-
supreme-court-too-powerful/on-rights-the-supreme-court-has-done-more-harm-than-good, accessed
on 12/28/18, JMP)
The Supreme Court decision in Obergefell v. Hodges struck a blow for equality and justice. But there are
reasons to worry when the courts interfere with democratic politics, even when you like the result.

To be sure, complaints about judicial activism have become a predictable and hypocritical ritual for the
losing side in an ideologically polarized court. The same justices complaining that a right to same sex
marriage undercut democratic process were perfectly happy to overturn laws they disagreed with,
including important provisions of the Voting Rights Act, campaign finance reform and the Affordable
Care Act.

But given the vagueness and malleability of constitutional law, few disputes have clear answers. So
when the Supreme Court invalidates legislation, it basically acts as a super-legislature of nine. And the
Supreme Court uses this power to defend the status quo and the powerful much more often than to
defend the weak and powerless. When it comes to championing the rights of vulnerable minorities, the
Supreme Court rarely does more than anticipate popular opinion. On the question of same-sex
marriage, the Supreme Court stepped in at the last minute to take the credit after grass roots activists
already did the hard and crucial work of changing hearts and minds. Polls before Obergefell showed that
a majority of Americans supported same sex marriage. Arguably, Obergefell was neither heroic nor
overreaching: it was a validation of an emerging national consensus.

When the court does get too far ahead of public opinion, it can produce unintended consequences.
We still don’t know whether Obergefell will produce an enduring backlash, as the abortion rights
decision in Roe v. Wade did. Even some of the Supreme Court’s most celebrated civil rights decisions
have been a mixed bag. Brown v. Board of Education is widely seen as ending Jim Crow segregation with
a strike of the judge’s gavel. But in fact, real desegregation didn’t start until Congress threatened to
deny federal funding to schools that refused to desegregate. And when white flight from inner cities
made desegregation impossible in many school districts, the Supreme Court eventually relented and
allowed many suburbs to avoid desegregation in 1971’s Milliken v. Bradley decision. In 2007, the
Supreme Court cited Brown as precedent when it blocked democratically endorsed school
desegregation plans. Today, many public schools are more racially segregated than they were in the
early 1980s.

If — as Winston Churchill believed — democracy is the worst form of government save all the
alternatives, perhaps judicial review is an important corrective. But overall, the Supreme Court’s
interventions in the democratic process have probably done more harm than good for civil rights.
 2nc Solves the Case / AT: Supreme Court Key

Orientation of the Court is forcing focus on state and local avenues --- better fits the
current geography of capital punishment
Ford, 18 (7/19/18, Matt, “America Is Stuck With the Death Penalty for (at Least) a Generation; With
Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go
local,” https://newrepublic.com/article/150036/america-stuck-death-penalty-at-least-generation,
accessed on 4/29/2020, JMP) ***Carol Steiker is a Harvard University law professor who specializes in
the death penalty

With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty
for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a
reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump
himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death
penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears
death-penalty cases compared to the other federal appellate circuits.

As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices
Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil
Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar
manner, the court’s posture toward the death penalty would shift decisively away from limiting its
scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s
now whatever Chief Justice Roberts decides that it is,” Dunham said.

Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also
joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the
2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the
sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though
the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too
much. “Some toxins are deadly in small doses,” he wrote.

Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of
abolition efforts will now turn to the state and local level. “States are really where the story is
happening,” she told me. “There are state constitutional challenges that can be brought. Seven state
legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that
a growing number of district attorneys are declining to seek the death penalty in cases where they
otherwise could.

A local focus makes sense given the current geography of capital punishment. Death sentences
increasingly come from only a handful of counties scattered across the country. Though state
legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in
practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down
dozens of death sentences have recently seen the election of district attorneys who are more skeptical
of it.
For now, the rulings written by Kennedy will continue to mark the outer limits for American executions
on a national level—unless the justices of a future generation choose to push them even further. “The
law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it
wanted to continue this project of reassessing the death penalty and its concordance—or not—with
evolving standards of decency,” Steiker said.

The death penalty can be effectively challenged through other means like voters,
jurors and state courts – doesn’t require the Supreme Court
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.228-230,
JMP)

Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it
ourselves. Some law professors think the courts provide false hope, and only by changing public
opinion and the law on the ground can meaningful and lasting change occur. Then again, the pace of
social and legal change in recent years on other constitutional issues has surprised many observers.
None thought that same-sex marriage would be so quickly adopted in states and then found
constitutionally protected by the Supreme Court. Are there lessons from the same-sex-marriage
movement, which resulted in a victory in the Supreme Court, for the anti–death penalty movement? The
same-sex-marriage litigators achieved victories in many lower courts before they took their case to the
Supreme Court, building a substantial factual record in the process. They also achieved victories in
statehouses. Anti–death penalty forces have done the same, actually, with more states abolishing the
death penalty and vanishingly few death sentences on the ground.

Groundhog Day will repeat itself many times in the years ahead. Death row inmates are filing briefs,
heeding Justice Stephen Breyer’s call to bring to the Supreme Court the question whether the entire
death penalty is unconstitutional. Some law professors argue that the courts have constructed the
American death penalty since the 1970s, and that it must be the courts that finally reckon with their
creation. Still, it is not at all clear that many on the Supreme Court would make such a bold move after
decades of incremental regulation of the death penalty. The justices may be too invested in the
modern death penalty they created.

Law professors Carol and Jordan Steiker, in their magisterial book describing the Supreme Court’s
decades of experience regulating capital punishment, conclude that the death penalty will ultimately be
abolished not “primarily because of noble considerations marking moral advancement,” but instead
because it is a “failed and perhaps impossible effort” to use the death penalty consistent with the
Constitution.35 Justice Antonin Scalia thought that the issue must be left “to the People to decide.”36
Perhaps he was right, and perhaps the Justices are unlikely to abolish the death penalty any time soon.
State court judges may be more likely to do so, and litigation is underway in several states. Still more
important, because it is a failed effort, as Carol and Jordan Steiker describe, the people are already
doing away with the death penalty as voters and as jurors.

One more sign of this change is that the desire for mercy increasingly comes from perhaps the most
unlikely source: the survivors and the family members of the victims . As public support for the death
penalty wanes, more family members of murder victims ask prosecutors not to seek the death penalty.
The sister of the victim of a mass shooting in California commented that she wanted the culprit to die
“alone and unnoticed,” serving life in prison so that “next time we see his face in the paper, it would be
for his obituary.” A district attorney in Texas commented in 2015 that “a healthy percentage” of victims’
families now say they do not want the prosecutors to seek the death penalty.37 Prosecutors do not
have to listen to them, but they of course try to serve their community and crime victims. In death
penalty cases, the Supreme Court permitted broad use of victim-impact testimony in its 1991 decision in
Payne v. Tennessee.38 One concern is that jurors will sentence people to death if the victim’s family
members speak in an articulate, impassioned way in support of the death penalty, or just appeal to the
jurors.39 While the court did impose minimal boundaries on the use of victim-impact testimony in death
penalty cases, in a number of states juries can freely hear victim-impact testimony at sentencing. In
many states, victim-rights statutes entitle victims to be heard. More family members expressing
discomfort with the death penalty can therefore have a real impact.

Death penalty can disappear without the Court having to act

Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 13-14, JMP)

A Different Death

America’s death penalty has been turned on its head, and I explore the end game for the death penalty
in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader
Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations,
data on wrongful convictions, the change in public opinion, and the decline in death sentences across
the country.13 I am not sure it matters when or whether the U.S. Supreme Court abolishes the death
penalty legally. The death penalty will have largely disappeared with a whimper before any such bang ,
due to the hard work of lawyers and a growing realization, in part driven by declining crime, that the
death penalty serves no useful purpose. The people have spoken.

If the plan has merit then it will eventually be adopted through the political arena ---
this is more democratic and judicial strategies empirically fail
Tushnet, 5 --- Professor of Constitutional Law at Georgetown (Spring 2005, Mark, “Democracy Versus
Judicial Review: Is It Time to Amend the Constitution?” EBSCO Host, accessed on 11/13/17, JMP)

Before the 2004 election, one of George W. Bush’s advisers produced a memorable description of
liberals as the “reality-based community.” Liberals took to wearing the label, offered as a criticism, as a
badge of honor.

In one important respect, however, the liberal community is about as faith-based as one can get.
Liberals believe in the courts as vehicles for progressive social change—a belief that remains unshaken
by the Supreme Court’s two-century history and the fact that it has been at best an inconstant defender
of progressive values since the 1980s. Liberals were unbelievers for the first half of the twentieth
century and then got religion during the short period when liberals dominated the Court. The Supreme
Court and judicial review are false gods, and liberals should return to their unbelief.

Suppose that liberals offered a constitutional amendment along these lines: “Except as authorized by
Congress, no court of the United States or of any individual state shall have the power to review the
constitutionality of statutes enacted by Congress or by state legislatures.” Let’s call it the End Judicial
Review Amendment (EJRA).

I offer this formulation in part simply to focus the discussion, but also as a serious proposal. Progressives
and liberals should abandon courts as a principal resource, for reasons of democratic principle and
political strategy.

Principle: The basic principle, of course, is that people ought to be able to govern themselves. Judicial
review stands in the way of selfgovernment. Constitutionalism— the imposition on the people of
restrictions on their own power—does not. The reason is that constitutionalism can be implemented
through politics as people listen to arguments about why some policies they might initially prefer are
inconsistent with deeper values they hold, values that find expression in the Constitution. As Larry
Kramer, dean of Stanford Law School, argues in his recent book The People Themselves, the United
States has a deep tradition of popular constitutionalism. He suggests it should be retrieved today, and
he is right.

This basic democratic principle is supplemented by the basic facts about the U.S. Constitution. It
protects fundamental values that it identifies in general terms: “due process of law,” “equal protection
of the laws,” “freedom of speech.” These terms are hardly self-defining, and there is inevitable
reasonable disagreement over what they mean when applied in particular controversies: are hate-
speech regulations a violation of freedom of speech or not? The “answer” is that the U.S. Supreme Court
says they are. The Canadian Supreme Court, in contrast, says they are not.

Reasonable disagreement about the proper interpretation of the Constitution is usually what informs a
Court decision that a statute is unconstitutional. As legal philosopher Jeremy Waldron asks (rightly),
why, in cases of reasonable disagreement over interpretation, should the votes of a majority on a Court
of nine justices prevail over the votes of a majority of one hundred senators and over four hundred
representatives? Contemporary liberals give answers centered on distrust of politics and of the people.
These should not be attractive to democrats.

Who Chooses?

Democrats are committed not only to self-government as a matter of principle but also to the belief
that, in the long run and in social conditions approximated in the contemporary United States, the
people will make the right choices when presented with arguments about fundamental values. That’s a
better place to put our faith than in the Supreme Court. Of course, the current political system in the
United States is imperfectly democratic. Judicial review might be a useful way of addressing some of
those imperfections or of offsetting them. But whatever might have been true during the Warren Court
era, the prospect of a return to liberalism is slight—not nonexistent, but small enough to make it
worthwhile to give up faith in the Supreme Court.

The democratic belief in the people’s judgment is confirmed by the important legislative achievements
of modern democracy. One Tshirt sold after the 2004 election listed what the Democratic Party has
accomplished: “Equal Pay. Equal Rights. 40 Hour Work Week. Social Security. Medicare. Clean Water.
Clean Air. Safe Food. Freedom of Speech. Voting Rights.” All but the last two were achieved primarily
through legislation, and some—the social welfare achievements of the modern state—had little
connection to the Supreme Court, except when it obstructed them.

Democratic faith in the people’s judgment means that the arguments liberals deploy in court should
be just as good in the political arena. We democrats think that we are right about fundamental values
— that, when put to the choice, the American people will prefer a society in which women have the
right to choose to bear or not bear a child; that, when put to the choice, the American people will prefer
a society in which gays and lesbians have the same right to express their love that straight people do;
and so on through the list of progressive policies. But, if we’re right, we ought to be able to prevail in
everyday politics and elections—maybe not immediately (in part because our reliance on the courts
has weakened us politically), but eventually. Progressives should be able to enact statutes that
embody our policies (and repeal those that don’t) with popular support.

Those are the principled reasons for being suspicious of judicial review on democratic grounds. The
proposal needs to be fleshed out a little more before we take up the strategic advantages of advocating
the elimination of judicial review.
 Internal Link – Democracy

Conservative court will undermine democracy by restricting voting rights and allowing
gerrymandering
Blumenthal, 18 --- reporter at HuffPost, previously worked as the senior writer for The Sunlight
Foundation (11/25/18, Paul, “Kavanaugh And Gorsuch Confirmations Force Progressives To Rethink The
Supreme Court; The new debate is about how best to challenge the court’s power,”
https://www.huffingtonpost.com/entry/supreme-court-kavanaugh-
gorsuch_us_5bf806e3e4b0771fb6b8489a, accessed on 12/18/18, JMP) ***Todd Tucker is a legal
scholar at the progressive Roosevelt Institute

What Might Spur Action

The current Court led by chief justice John Roberts has been known for rulings rolling back progressive
legislation, including the 2010 Citizens United ruling that legalized unlimited corporate spending on
independent political efforts. That decision has animated progressives across the country along with the
2013 Shelby County decision overturning part of the Voting Rights Act, which similarly drew broad
condemnation. But the post-Anthony Kennedy court has yet to issue a ruling, much less one that defines
its perfidy to progressives. That time will come, though.

Caroline Fredrickson, the ACS president, is most concerned about rulings that deal with democracy like
the Shelby County and Citizens United decisions. Future rulings further limiting the Voting Rights Act,
preventing states from limiting gerrymandering or gutting campaign finance laws could be easily seen as
partisan attempts to help the party that appointed the five conservative justices and, thus, destroy trust
in the judiciary.

For Tucker, the scholar at the Roosevelt Institute, the big worry comes from this conservative court
striking down progressive legislation meant to deal with climate change.

“Once you start to look at the aggressive Green New Deal policies that climate scientists say are
necessary to head off these irreversible impacts over these next 10 or 20 years, that is where you’re
going to see the rubber hit the road,” Tucker said. “Some of that is going to inevitably interfere with
property rights, and you have to have a court that’s willing to accommodate that.“

And if the court doesn’t agree, progressives will at least have started this policy discussion years earlier
to help guide them towards a forward.
 Internal Link – Cements Trumpism / Conservative Policies

Trump’s court packing will cement Trumpism for three decades

Zengerle, 18 --- political correspondent for GQ (8/22/2018, Jason Zengerle, “How the Trump
Administration Is Remaking the Courts; Thanks to ruthless discipline — and a plan long in the making —
the G.O.P is carrying out a sweeping transformation of the federal judiciary,”
https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html, accessed on
11/22/2018, JMP)

While Trump has lagged behind other presidents in political appointments, the streamlining of the
judicial-selection process has helped him deliver a historic number of judges to the federal bench. In
2017, the Senate confirmed 12 of Trump’s appeals court picks — the most for any president in his first
year in office. This year, the Senate has already confirmed 12 appellate judges and, according to a
Republican Judiciary Committee aide, hopes to confirm at least four more. The White House refers to
every new batch of judicial appointees Trump selects as “waves” — in early June, it announced the
“Fifteenth Wave of Judicial Nominees”— as if they’re soldiers landing on the beaches of Normandy.

Trump’s appointees have tended to be unusually well credentialed and conservative. Republicans like to
emphasize their academic and professional bona fides — the summa cum laudes, the Phi Beta Kappas,
the Supreme Court clerks — and jokingly celebrate their “deep bench” of candidates. Democrats, for
their part, prefer to focus on the appointees’ ideology. “If someone had said or written something half
as controversial as these Trump nominees, they never would have been picked by President George W.
Bush,” says Kristine Lucius, a former Democratic Senate Judiciary Committee aide and now the executive
vice president for policy at the Leadership Conference on Civil and Human Rights. “What once would
have been disqualifying” — a nominee’s stated views on contraception or gay rights or consumer
protection — “is now motivating this president.” Or perhaps, the nominees’ views are what’s motivating
many conservatives to go along with Trump’s presidency — which is what’s motivating Trump.

When it comes to Trump’s judicial appointments, the public has been understandably focused on the
Supreme Court, with first Neil Gorsuch and now Brett Kavanaugh receiving most of the attention. When
one of Trump’s lower-court nominees has managed to penetrate public consciousness, it has usually
been an outlier, like Brett Talley, whom Trump picked last year for an Alabama Federal District Court
judgeship. Talley, who had never tried a case and whom the American Bar Association rated
unanimously “not qualified,” ultimately withdrew his nomination after it was discovered that he was a
member of a ghost-hunting group and had apparently defended the honor of the early Ku Klux Klan on
an Alabama Crimson Tide football fan message board.

More representative of Trump’s judicial appointees are judges like James C. Ho. Born in Taiwan, Ho
moved to the United States as a toddler. He graduated from Stanford and the University of Chicago law
school before going on to clerk for Clarence Thomas at the Supreme Court. After working in George W.
Bush’s Justice Department, he succeeded Ted Cruz as Texas solicitor general. Ho is as pure a product as
exists of the conservative legal movement created by the Federalist Society. Last October, Trump
nominated Ho to the United States Court of Appeals for the Fifth Circuit. In December, he was confirmed
by the Senate. And in April, Ho issued his first opinion — a blistering dissent in a campaign-finance case
after a Fifth Circuit appellate panel ruled, 12 to 2, that the City of Austin, Tex., could prohibit individuals
from donating more than $350 per election to municipal candidates. Ho used his dissent not only to
voice his disapproval of campaign-finance laws but also to criticize those that regulated gun purchases
and protected abortion; he even threw in a swipe, in a citation, at the Supreme Court’s Obamacare
ruling. Lamenting a government that has grown so large that it “would be unrecognizable to our
founders,” Ho wrote: “If there is too much money in politics, it’s because there’s too much government.
The size and scope of government makes such spending essential.”

To be sure, Ho’s was a dissenting opinion, but what so cheered members of the conservative legal
movement is that it was likely the first of many, because Ho is only 45. And because there will be more
and more judges like Ho on the federal bench, it’s only a matter of time before such opinions will no
longer be dissents. Indeed, after just 18 months, Trump has “flipped” two circuits — the Sixth and
Seventh — from what Trump’s supporters in the conservative legal movement consider “liberal” to
more properly conservative. Two more — the Eighth and the 11th — are on the verge of tipping. Even
circuits that are decidedly liberal are undergoing significant changes. “It’ll be really important for the
Second and the Ninth Circuits to have between two and four really good, high-octane intellectual
conservative jurists,” explains a person close to the judicial-nominations process, “because dissents
provide a signaling function to the U.S. Supreme Court, and those are very important circuits.”

In short, a radically new federal judiciary could be with us long after Trump is gone. Brian Fallon, a
veteran Democratic operative who leads Demand Justice, a group formed to help Democrats with
research and communications in the judicial wars, says, “We can win back the House this
November, we can defeat Trump in 2020 and we’ll still be dealing with the
lingering effects of Trumpism for the next 30 or 40 years because of the young
Trump-appointed judges.”
And if Trump is re-elected? Newt Gingrich, who during the 2016 campaign began emphasizing the
importance of judges to Trump, posits: “He could, by the end of his time in office, be the most important
president since Franklin Delano Roosevelt in shaping the judiciary.”

New conservative court will strike down progressive efforts for decades – uniquely
hurts communities with will less power
Litman, 18 --- assistant professor of law at UC Irvine (7/10/18, Leah, “Liberals and the Powerless
Should Worry About a Kavanaugh Court,” https://www.nytimes.com/2018/07/10/opinion/brett-
kavanaugh-supreme-court.html, accessed on 12/18/18, JMP)

The courts were never going to save our constitutional democracy, but that doesn’t mean they are
unimportant. The president’s nomination of Judge Brett M. Kavanaugh for the Supreme Court provides
an occasion to reflect on the power of the federal courts and to consider what the newly refashioned
Supreme Court will and will not do.

If Judge Kavanaugh is confirmed and his work on the United States Court of Appeals for the District of
Columbia Circuit is any indication, the new Supreme Court will rarely act as a shield for groups — such
as undocumented women — who are victimized by the political process. And when they do manage to
eke out a political victory, the court may serve as a sword against them.
Some people point to the Supreme Court’s relatively conservative history to reassure us that things will
not be so bad. That will be largely true for the socioeconomically well-off, mostly white elite Supreme
Court watchers who are largely insulated from many of society’s harshest tendencies.

But court decisions can have real consequences in people’s lives. Consider Judge Kavanaugh’s views in a
recent case related to abortion, Garza v. Hargan. An undocumented minor, referred to by the court as
Jane Doe, or J. D., was in the custody of the Office of Refugee Resettlement, which blocked her efforts to
obtain an abortion. Rochelle Garza, her court-appointed guardian, sued Eric Hargan, the acting secretary
of health and human services, on behalf of J. D. and other women in her position.

Judge Kavanaugh weighed in on the case when an appeal reached the United States Court of Appeals for
the District of Columbia Circuit. At a moment of great urgency — abortion restrictions in Texas leave a
narrow window for the procedure — Judge Kavanaugh and two other judges would have permitted the
Office of Refugee Resettlement to force the woman to delay her abortion even further. That delay would
have exacted a significant cost, not just to the woman’s bodily autonomy but also to her access to the
procedure, since delaying it further limited the providers who would have performed it.

Judge Kavanaugh’s reasoning provides a perfect example of how judges can whittle down the right to
decide to end a pregnancy so that it is practically unavailable to women even without outright
overruling Roe v. Wade. Upholding needless restrictions on abortion can make safe and legal abortion
unavailable to women, too. (Ultimately, other judges on the District of Columbia Circuit ruled that the
resettlement office could not prevent or further delay J. D.’s obtaining an abortion.)

In Garza, one conservative judge went further than Judge Kavanaugh and wrote that contrary to the text
of the due process clause, noncitizens entering the United States have no due process rights at all. The
Trump administration has argued that they possess, at most, only very limited ones, and it has used that
argument to defend its forcible separation of families at the border, among other things.

Judge Kavanaugh did not join the judge’s opinion embracing that argument, but neither did he reject it.
He also did not reject the administration’s reasoning: He merely wished it away by pretending the
administration had not made the argument at all and said that the government had “assumed,
presumably based on its reading of Supreme Court precedent,” that undocumented women do enjoy
the constitutional protections of the due process clause. That reasoning does not reveal what Judge
Kavanaugh might do with the Supreme Court precedent once he is on the court and in a position to
change it.

But it is not just about the debates raging in the court this year. For the next several decades,
the federal courts could be available to strike down policies that progressives
obtain in the halls of Congress, the presidency or the states.
Imagine a future Democratic Congress wants to offer remedies for victims of police violence that
disproportionately affects minorities. Conservative justices have questioned the constitutionality of laws
that prohibit policies where the burden falls on some races more than others. Just a few years ago,
Justice Anthony Kennedy broke with his more conservative colleagues to allow lawsuits under the Fair
Housing Act to proceed where a policy disproportionately affected one race more than others, even if
unintentionally. Under Justice Kavanaugh, that would probably not happen; his supporters are already
trumpeting the fact that Judge Kavanaugh will probably invalidate race-conscious
remedies.
Or consider a Democratic Congress that wants to limit a future president’s ability to detain or separate
families for immigration proceedings. What is to stop a conservative majority of the court from
invalidating the law as an unconstitutional limitation on the president’s powers under Article II of the
Constitution?

Judge Kavanaugh has written extensively about the force of Article II and how it limits the extent to
which Congress can restrain the presidency. As a judge, he wrote a dissent (later adopted by a 5-4
majority of the Supreme Court) that gave the president more power over the regulatory body that
oversees the financial services industry. He wrote a similar dissent about another agency this year.
Congress had attempted to make those bodies independent of the president; Judge Kavanaugh said they
could not do so.

These possibilities are not necessarily hypothetical. The Trump administration is already attempting to
use the federal courts as a bludgeon to invalidate popular progressive laws that could not be repealed
through the normal legislative process. In a recent lawsuit, Mr. Trump’s Department of Justice is arguing
that the federal courts should invalidate the Affordable Care Act provisions that prevent insurance
companies from charging higher prices to people with pre-existing conditions and from refusing to issue
policies to people willing to pay for them.

Progressives have very limited options at their disposal. One option would be to use state courts and
state constitutional law to protect rights that the federal courts will not. For example, the Iowa Supreme
Court recently held that the Iowa Constitution protects women’s ability to decide to end a pregnancy,
and the United States Supreme Court generally does not review state court decisions on matters of state
law.

But that solution has its limits, because rights would vary by region and because the election or
appointment of progressive state justices may seem out of reach in some areas. The Supreme Court can
defang progressive state laws with regressive federal ones. Take the court’s recent decision in National
Institute of Family and Life Advocates v. Becerra, which invalidated a pair of California regulations
designed to warn women that unlicensed crisis pregnancy centers were unlicensed, among other things.
The court held that the state laws violated the First Amendment.

President Trump was always going to nominate conservative judges, and his selection of the well-
credentialed and very smart Judge Kavanaugh is no exception. But there is no point to pretending that
Judge Kavanaugh is something he is not, and no use in feigning uncertainty about the substance of Judge
Kavanaugh’s views on certain legal issues.

Democrats may think the courts were meant for better things, but they are in the minority. While they
are there, they might ask themselves whether the federal courts are worth fighting for or against, and if
so, how. And they might even learn a thing or two from the people who decided that they are, and by
any means necessary — Mitch McConnell and the Republican Party.
 Internal Link – Climate

Conservative court will invalidate climate control policies

Kilgore, 19 (9/16/19, Ed, “Another Obstacle for Climate Action: A Conservative Supreme Court,”
https://nymag.com/intelligencer/2019/09/a-conservative-supreme-court-could-prevent-action-on-
climate.html, accessed on 5/1/2020, JMP)

But until now nobody’s talked a lot about the Court as a potential stumbling block to increasingly urgent
efforts to stop — and, if possible, reverse — climate change. As the Washington Post’s Greg Sargent
explains, that could change thanks to an academic study of conservative legal thinking and how it might
collide in the Supreme Court with legislation like the proposed Green New Deal:

What makes the study interesting is that it uses the justices’ past rulings, as well as other conservative
legal scholarship, to elaborate a picture of the specific legal doctrines they might employ to strike down
efforts to legislate against global warming. The study concludes that their records clearly demonstrate
they will have many such doctrines to weaponize in this fashion.

Here are some specifics from the study itself:

The Court’s conservative justices have an array of dubious legal interpretations at their disposal for
dismantling climate change legislation , including an exceedingly narrow interpretation of statutes that
empower federal agencies, an expansive reading of the Takings Clause and the Tenth Amendment, and a
preferential application of the Commerce Clause. Given the Roberts Court’s track record of applying
doctrine arbitrarily to suit preferred policy outcomes, it seems unlikely that climate change legislation
would survive judicial review.

The study (conducted by Samuel Moyn of Yale Law School and Aaron Belkin of San Francisco State
University) focuses on the views of Trump appointees Gorsuch and Kavanaugh, and of Chief Justice John
Roberts, who has been carefully but steadily leading the Court into a position to protect conservative
interests on a broad range of issues — most particularly those involving economic privilege. Some of the
issues they raise — particularly the hostility of conservative jurists to delegation of congressional
authority to agencies or state governments — illustrate opportunities the Roberts Court could have to
slow down or hamstring climate-change action even if it declines to make a frontal assault.

It should be noted that Moyn and Belkin are both associated with a progressive group — Take Back the
Court — that advocates radical solutions to obstruction by the Court, including expansion of the number
of Justices serving on SCOTUS. But they credibly cite the urgency of the climate-change challenge to
point to an earlier occasion — the Great Depression — when reactionaries on the Court became an
immovable object resisting the irresistible force of the original New Deal, as Sargent observes:

In the end, we face a situation that’s in some ways similar to the New Deal. The country faced an
emergency at the time, yet proposed government responses were blocked by a Supreme Court driven
by doctrinal opposition to many such actions (not to mention fealty to plutocratic interests) until the
dam was broken.
Perhaps progressives should save their proposals to impeach Justices like Brett Kavanaugh for that
contingency.

Conservative court will undermine climate control policies

Blumenthal, 18 --- reporter at HuffPost, previously worked as the senior writer for The Sunlight
Foundation (11/25/18, Paul, “Kavanaugh And Gorsuch Confirmations Force Progressives To Rethink The
Supreme Court; The new debate is about how best to challenge the court’s power,”
https://www.huffingtonpost.com/entry/supreme-court-kavanaugh-
gorsuch_us_5bf806e3e4b0771fb6b8489a, accessed on 12/18/18, JMP) ***Todd Tucker is a legal
scholar at the progressive Roosevelt Institute

What Might Spur Action

The current Court led by chief justice John Roberts has been known for rulings rolling back progressive
legislation, including the 2010 Citizens United ruling that legalized unlimited corporate spending on
independent political efforts. That decision has animated progressives across the country along with the
2013 Shelby County decision overturning part of the Voting Rights Act, which similarly drew broad
condemnation. But the post-Anthony Kennedy court has yet to issue a ruling, much less one that defines
its perfidy to progressives. That time will come, though.

Caroline Fredrickson, the ACS president, is most concerned about rulings that deal with democracy like
the Shelby County and Citizens United decisions. Future rulings further limiting the Voting Rights Act,
preventing states from limiting gerrymandering or gutting campaign finance laws could be easily seen as
partisan attempts to help the party that appointed the five conservative justices and, thus, destroy trust
in the judiciary.

For Tucker, the scholar at the Roosevelt Institute, the big worry comes from this conservative court
striking down progressive legislation meant to deal with climate change .

“Once you start to look at the aggressive Green New Deal policies that climate scientists say are
necessary to head off these irreversible impacts over these next 10 or 20 years, that is where you’re
going to see the rubber hit the road,” Tucker said. “Some of that is going to inevitably interfere with
property rights, and you have to have a court that’s willing to accommodate that.“

And if the court doesn’t agree, progressives will at least have started this policy discussion years earlier
to help guide them towards a forward.
 AT: Courts are Progressive / Can Be Reformed

The plan is at best a small progressive victory --- it creates the perception that the
Court is legitimate and helpful but does nothing to change its underlying conservative
orientation. Progressive goals take one step forward to inevitably take two steps back.

Courts are regressive, not progressive --- any positive decisions have followed a
change in public opinion --- the ballot box is the best way to preserve democracy
Sprigman, professor at NYU School of Law, 18 (10/11/2018, Christopher Jon Sprigman, “The
Supreme Court Is a Historically Regressive and Presently Expendable Institution,”
https://slate.com/news-and-politics/2018/10/supreme-court-bad-history-reform.html, accessed on
11/28/18, JMP)

The Kavanaugh hearings were a disaster, for the individuals involved and for the country. Most people
on the left focus on the fact that a man who may well have committed sexual assault is now set to spend
the next 30 or more years on the Supreme Court. That’s undeniably bad. But the problem is deeper than
that.

What we saw in that hearing room is that our nation has splintered into two camps that increasingly
despise one another. We see also that battles over who sits on the Supreme Court reflect—or perhaps
have contributed to—this breakdown of American civic culture. In our national mythology, loyalty to our
Constitution, and respect for the Supreme Court that is charged with interpreting it, is part of what
unites us. But what if that isn’t true? What if the court and the Constitution are part of how the right
fixes the game in its favor?

There are two immediate ways in which right-wing judges and justices might help tilt the playing field in
the GOP’s direction. The first is the prospect that Trump judges will move to protect the man who
appointed them from criminal prosecution. That worry has only worsened with Brett Kavanaugh’s
confirmation—in a 2009 law review article, Kavanaugh advocated for a “temporary deferral of civil suits
and criminal prosecutions and investigations” for sitting presidents. To be clear, there is nothing in the
Constitution that prohibits criminal prosecution of a sitting president. But the absence of an explicit
constitutional bar may not stop partisan judges from discovering one.

The second immediate problem has to do with voting rights. The GOP’s voting base is white, old, and
shrinking. A new liberal coalition—younger, more diverse, more urban, more educated—is set to
displace it. But not if a right-wing judiciary turns a blind eye to the GOP’s hydra-headed voter
suppression strategy. Using aggressive gerrymandering, voter ID laws, restrictions on early voting, and
moves as blunt as shuttering voting sites in neighborhoods dominated by minority voters, the GOP
works tirelessly to delay—and potentially halt—the demographic reckoning that it knows it faces.

The federal judiciary is already too indulgent of the GOP’s anti-voting programs. Back in June, the
Supreme Court upheld, by a 5–4 vote, Ohio’s practice of purging its voter rolls. And although in 2017,
the Supreme Court let stand a federal appellate court decision striking down a GOP-engineered North
Carolina voter suppression law that, in the words of the appeals court, targeted black voters “with
almost surgical precision,” North Carolina Republicans have already put a new set of restrictions in
place, and with the Supreme Court’s conservative majority bolstered by the Kavanaugh confirmation, we
may see them upheld this time around.

The federal judiciary, in short, is unlikely to save our democracy. In fact, it’s more likely to join in the
attack. The question for progressives and defenders of small l liberal values alike is this: How should
they respond as highly partisan, anti-majoritarian rulings only increase by a firmly ensconced
conservative majority for the coming decades (plural).

The temptation, of course, the next time Democrats are in power will be to shrink the power of the
courts to reverse democratic decisions.

That is a double-edged sword—a reduced judiciary will no longer have the same power to curb a future
Republican Congress or GOP-controlled state legislatures either. It could also lead to a never-ending tit-
for-tat escalation, with the final blow perhaps coming from the next leader with the authoritarian
instincts of Trump but a bit more cunning. That first trade-off would be worth it, but the latter is
admittedly harder to grapple with.

Still, progressives must now at the very least reckon with the fact that the Supreme Court never was the
progressive champion that the left believed it to be and plot a path forward from that premise. The left’s
previous embrace of the myth of the court as a force for social good tends to come from the general
view of the Constitution and the Supreme Court largely as a force for progress. The reality is that on the
major civil rights decisions of the past 60-plus years, the court has followed rather than led public
opinion and has often been ineffectual in the championing of progressive ideas.

This particular brand of the court as progressive institution myth focuses on a small subset of its
decisions, and especially those of the Warren court era of the 1950s and ’60s, including Brown v. Board
of Education, which declared segregated schools unlawful. The left also focuses on more recent
decisions such as Lawrence v. Texas (2003), which overturned state laws banning sodomy (which, in
practice, were enforced mainly against gay men). But those decisions, and others like them, make a
weaker case for the courts, and for the Constitution, than many on the left believe.

Think first about Brown: There, the court ordered that schools be desegregated “with all deliberate
speed.” More than a half-century later, are America’s public schools actually desegregated? No, they are
not.

The progressive effect of Lawrence is similarly oversold. In its 1986 decision in Bowers v. Hardwick, a 5–4
majority of the Supreme Court upheld a Georgia statute banning oral and anal sex, holding that the
Constitution did not confer “a fundamental right to engage in homosexual sodomy.” What changed
between 1986 and 2003, when the court issued its opinion in Lawrence overruling Bowers?

Prior to 1963, sodomy was a felony in every state. But by 2002, the year before the Supreme Court
handed down its decision in Lawrence, sodomy laws had been repealed by the legislatures of 27 states
and the District of Columbia, and overturned by state courts in another nine states—all with virtually
zero public opposition. The 14 states that still had sodomy laws on the books almost never used them.
The court wasn’t leading in Lawrence. It was following. It was tidying up after the democratic decisions
of millions of Americans had already fundamentally improved the nation’s disposition toward gay
people.

If the left tends to overestimate the court as a force for progress, it perhaps
even more seriously underestimates the court’s tendency toward regress. On
balance and over the span of American history, the court has in fact done far
more to retard progress than to advance it. Most horribly, the court upheld in its decision
in Dred Scott the sanctity of slavers’ property interest in other humans. The court likewise approved in
its Korematsu decision the World War II–era imprisonment of Japanese Americans based on nothing
more than fear and paranoia. The court recently claimed to overturn Korematsu, but in the context of
the Trump v. Hawaii decision in which the court upheld the constitutionality of Trump’s Muslim travel
ban. In the Citizens United case, meanwhile, the court turned back legislative efforts to rein in the
corruption of our politics that follows inevitably from our First Amendment–sponsored orgy of special
interest contributions.

These are just a few examples of a general tendency. The Supreme Court has, time and again in our
past and our present, turned the Constitution against both democracy and decency.

And then there’s Roe. The left views Roe as a victory that it must preserve, but Roe has actually been a
slowly unfolding disaster for the left, and for the country. Unlike in Lawrence, where the court’s
decision followed progressive democratic change, in Roe the court pre-empted it. Roe liberalized
abortion law nationwide before the nation had achieved a democratic consensus favoring liberalization.

As no less an advocate for reproductive rights as Justice Ruth Bader Ginsburg has argued, the results
have been politically catastrophic. Roe birthed a militant pro-life movement that has been completely
co-opted by the right. The net result has been a durable rightward tilt in American politics.

The left has Roe (for now). But it secured that victory at a terrible price. Opposition to Roe is the glue
that holds together America’s dominant right-wing political coalition. The price of Roe is all the
progressive change we gave up when Roe helped push the center of American politics to the right.

The reality is that the court has never been a progressive institution. And it’s not
going to be one for the foreseeable future. In particular, the courts aren’t going to save us from the
GOP’s voter suppression efforts—it is, in the end, voters who are going to have to protect the right to
vote. And in states where voter suppression efforts go hand in hand with popular Republican legislative
majorities (and sometimes unpopular but gerrymandered legislative majorities), voters will not be
willing or able to turn the tide. The only way to address that will be for the Department of Justice to get
back into the business of enforcing voting rights, and that will require new legislation and Democratic
control of the executive branch. Again, the courts aren’t going to help. Nor are the courts up to the job
of protecting us from a determined turn by the GOP—or, for that matter, by some future left-wing
demagogue—toward authoritarianism. The surest protection against undemocratic politics is a vibrant
culture of democratic politics.

Ultimately, the left would be well-advised to get over its unrequited crush on courts and judicial
review, as well as the delusion that our old, terse Constitution has much to say about modern problems .
It does not, and in any event, too much constitutionalism, like too much democracy, can be dangerous
to self-governance and can even destroy a society. The surest and most durable route to progressive
change is through the ballot box, and not the courthouse doors.

The question, then, becomes how to shrink the power of courts. There are many valid ways to
accomplish that—even without amending the Constitution itself.

The Court has a long history of undercutting progressive goals --- Trump will make it
worse by packing courts with conservatives
McElwee, 18 --- writer and researcher based in New York City and a co-founder of Data for Progress
(5/4/18, Sean, “Democrats Are In Denial About The Supreme Court,”
https://www.huffingtonpost.com/entry/opinion-mcelwee-supreme-
court_us_5aeb317ae4b041fd2d23f8db, accessed on 12/19/18, JMP)

On issues from racial justice and reproductive freedom to money in politics, the U.S. Supreme Court
has been a key impediment to progressive goals.

In President Barack Obama’s first term, the Supreme Court crippled his signature legislative
achievement, the Affordable Care Act, allowing Republican governors to deny millions of people health
care and thereby weakening the law’s health care exchanges. The court then accepted an entirely
frivolous challenge to the law and came within one vote of striking it down on grounds that even many
Republicans found absurd. The Supreme Court has made it harder for women to access contraception,
ended voluntary desegregation programs and crushed state-level public financing laws.

Despite all this, Republicans are far more mobilized on the court than Democrats, something true among
both the general public and activist elites. Despite his rank incompetence in every branch of
government, Trump has managed to create an efficient pipeline of far-right judges to the federal
bench, filing it four times faster than Obama through his first year. However, even as the court has
become a reactionary institution, my analysis of Cooperative Congressional Election Studies reveals a
disturbing pattern: Democrats mostly have positive views of the court and see it as a centrist institution
rather than one that explicitly seeks to advance the Republican agenda.

Progressives Are Misguided About The Court

Despite the Supreme Court coming down on the side of corporate power and against progressives on
issues such as school busing, corporate money in politics, gun control, public financing, women’s
reproductive freedom, health care and green energy, progressives’ perspective of a centrist court has
grown in recent years.

For the last several years, the Cooperative Congressional Election Studies survey has asked individuals to
place various institutions, including the Supreme Court on a 1 to 7 scale, with 1 being “very liberal” and
7 being “very conservative.” As the chart below shows, there was a recent spike in the share of
Democrats believing the court was “middle of the road,” increasing from 2014 (28 percent) to 2016 (43
percent), with “don’t knows” excluded.

[image of graph omitted]

The chart below shows the full spectrum of attitudes toward the Supreme Court’s ideology in the most
recent survey (2016), with individuals who said they were “not sure” excluded (Democrats were
somewhat more likely to say they were not sure, and independents were far more likely). Democrats are
much more likely to indicate that they believe the court is a centrist institution. In addition, while a
quarter of Republicans see the court as “very liberal” or “liberal,” only a fifth of Democrats see the court
as “very conservative” or “conservative.” Given that the court is majority Republican appointees and
most scholarly assessments place it to the right of center, these results suggest a strong partisan
asymmetry in views toward the court. Republican voters believe the court is working against them and
are willing to fight against it, while Democrats mostly see it as a neutral arbiter of law (though this
survey was completed before Neil Gorsuch was added to the court).

[image of graph omitted]

This dynamic extends to partisan approval of the court. Even as the Supreme Court struck down much of
Obama’s first-term agenda and decided the Hobby Lobby, Citizens United, Shelby County and other
cases anathema to progressive values, there was a durable pro-court approval gap. Democrats were
more likely to approve of the court than Republicans by an average of a 14 point margin from 2010 to
2014. This gap increased only to a 32-point margin in 2016 (the chart excludes “don’t knows”), even
while the court decided cases like Trinity Lutheran, in which the court required the government to
subsidize churches.

[image of graph omitted]

Young Democrats are more likely to approve of the court, with 69 percent of 18- to 29-year-old
Democrats favoring it (excluding “don’t knows”) compared with 55 percent of Democrats 70 or older.
Even among “very liberal” Democrats, the court has strong approval.

Fight Fire With Fire

In the infamous Lochner era of the early 20th century, the Supreme Court was controlled by
reactionaries who invented legal doctrines whole cloth so they could strike down laws limiting the
length of the workweek, laws banning child labor, minimum wage laws and other progressive legislation.
Now, as we enter a new Lochner era, most Democrats believe the court is a neutral arbiter of law and
norms, an umpire calling balls and strikes (a view Roberts has promoted in word but not in deed).

The Lochner era ended in part because progressives like Franklin Delano Roosevelt
condemned the court’s interventions. Today, progressives can, and should, take steps to
inform their voters and activists about the court. Senators like Michael Bennet (D-Colo.), who are willing
to empower the reactionary right despite living in bluish states, should be held accountable for voting to
confirm conservative justices. Progressives should also make voters aware of the reality that
Republicans have explicitly fought to keep women, gay people and people of color off the federal bench
through blue slipping.

In addition, the power of video has been shown, from the embarrassing grilling in December of federal
judicial nominee Matthew Petersen (leading to his withdrawal) to nominee Wendy Vitter refusing to say
last month whether she thought Brown v. Board of Education was correctly decided. We need young
progressives to see Justice Sonia Sotomayor roasting conservatives and the ways that conservative male
justices abuse their female colleagues with rude interruptions and petty comments. Too often,
conservatives treat the court like a dorm room bull session, and voters should see that ― so we should
have video in the court.

In the meantime, we can demystify the court by demanding same-day audio for all arguments; currently,
the court releases audio only on Friday afternoons, when the news cycle is over. Same-day audio has
been granted for just two cases in recent years, Obergefell and the Trump travel ban case. If
progressives called on media to routinely request same-day audio, the court might feel compelled to
comply.

Conservatives have powerful, well-funded organizations, such as the Federalist Society and Judicial
Watch, that seek to create another generation of conservative justices. The Federalist Society, for
instance, is largely responsible for the rapid clip of Trump appointees: Behind the scenes, they vet and
prep Trump nominees and grease the wheels on the process. They have gone as far as to fund college
programs to create a new generation of conservative judges. Progressives have institutions like the
American Constitution Society that are meant to replicate the Federalist Society, but these institutions
tend to be less explicitly partisan. Progressives need an institution like Judicial Watch on the right that
can be an attack dog, combing Trump judges for inappropriate quotes, calling out conservative judges
acting improperly, collecting the offensive and homophobic statements by judges like John Roberts and
documenting the partisan nature of the court.

We are in a second Lochner era, in which the court threatens to strike down a progressive agenda
with the slightest pretense. There is some evidence this is changing, with the rise of groups like
Demand Justice that aim to mobilize Democrats on court issues. These groups need attention from
Democratic donors and activists, because there is a real chance that whatever progressive gains on
voting rights, health care or gun control Democrats create post-2020 will be rolled back by an
emboldened court.

The court feels comfortable because they are seen as a nonpolitical institution. Voters must understand
that judges are politicians in robes, and that, right now, conservatives have an unchecked majority. It’s
time for progressives to start taking the court seriously.
 AT: Democracy Resilient

Democratic backsliding possible in the U.S. --- partisan packed court makes it more
likely
Huq & Ginsburg, 17 --- professors of law at U Chicago (2/21/2017, Aziz & Tom, “How to lose a
constitutional democracy,” https://www.vox.com/the-big-idea/2017/2/21/14664568/lose-
constitutional-democracy-autocracy-trump-authoritarian, accessed on 12/21/18, JMP)

As the Trump administration finds its feet, a fear of autocracy is in the air. Some spy the beginning of a sustained assault on our
democratic order — envisioning a world in which “keeping the president happy” becomes a widespread corporate goal, as the president metes out warnings on Twitter to companies that
threaten his business interests. They sense disdain for constitutional limits on presidential power in Trump’s attack on a “so-called judge” who dared to issue a stay against his hastily issued
executive order banning refugees. And they wonder if he will comply if the courts eventually rule against him.

plenty of
Others worry about the powers the bellicose Trump might assert — and be granted by a supine Republican Congress — in the event of a terrorist attack. On the other hand,

conservatives accuse liberals of crying wolf, confident that no such democratic crisis is imminent.

One reason for the uncertainty is that Americans don’t really know what backsliding from
Who’s right?

democracy looks like, at least not firsthand. The United States has the world’s oldest democratic Constitution still in force. Despite the Civil War, two world
wars, and countless emergencies, national elections have never been postponed. Britain, by contrast, canceled elections during World War II.

It is true that Lincoln suspended the writ of habeas corpus while waging war against the South, that antiwar activism was effectively criminalized in World War I, and that human and civil rights

we lack a history of the systematic corrosion of the three main pillars of our
have been violated during other crises. But

democratic institutions: elections, the rule of law, and freedom of speech. As a result, we lack the
historical experience needed to evaluate the current risk to key national institutions.
The rest of the world, however, hasn’t been so lucky — and it is there that we can turn for hints about the dangers of the current situation. In the past decade, an increasing number of
seemingly stable, reasonably wealthy democracies have retreated from previously robust democratic regimes toward autocracy. These states are literally all over the map: They range from
Eastern Europe (Hungary and Poland) to the Mediterranean (Turkey) to Latin America (Bolivia and Venezuela). Once-anticipated democratic gains in Russia and China haven’t materialized.
Meanwhile, a hoped-for “fourth wave” of democracy in the Arab Spring’s wake has dissipated into bitter civil war or authoritarianism.

It was once thought that when a reasonably wealthy country achieved democracy, it would almost certainly maintain it. No more.

Democratic backsliding is far less rare than political scientists used to believe. In a recent academic paper, we identified 37 instances in 25 different countries in the postwar period in which
democratic quality declined significantly (though a fully authoritarian regime didn’t emerge). That is, roughly one out of eight countries experienced measurable decay in the quality of their
democratic institutions.

Scholars used to argue that democracy, once attained in a fairly wealthy state, would become a
permanent fixture. As the late Juan Linz put it, democracy would become “the only game in town.” That belief
turned out to be merely hopeful, not a reality.
As a result, the global trend for democracies — the other categories being partial or complete autocracies — does not look positive, as the following chart shows. While we are not yet to the
point where democracies are rare, as in the 1970s, it is quite possible that the “third wave” of democratization has peaked. And the recent de-democratization trend stands out:

[graph omitted]
Does the experience of the rest of the world matter for the United States? That might seem like an odd question. But since at least the time of Alexis de Tocqueville, commentators have
argued that our country has a distinctly strong democratic tradition and temperament. Indeed, the phrase “American exceptionalism” emerged in US communist circles in the 1920s in the

American exceptionalism has since become

course of efforts to explain the apparent immunity of the United States to proletarian revolution.

something of national credo. It’s all but obligatory , at least in political circles, to say that the founders created a
marvelous system of checks and balances that would defeat any attempt at a power grab.

having carefully studied the experiences of other countries as well as our own Constitution , we think
But

complacency is unwise. The United States is not exceptional. It is instead vulnerable to the most prevalent form of
democratic backsliding — a slow descent toward partial autocracy .
Coups are rare (and growing rarer). Democratic “backsliding” is common.
In at least one regard, however, those who worry about an overreaction to Trump are correct. The sudden and dramatic end of democracy in the
US, as in a military coup, is highly unlikely , even if this has often been the engine fueling dystopian fiction and film.
Coups, of course, do happen. In May 2014, for example, the Thai military suspended that country’s constitution and ended democratic rule. A year earlier, the Egyptian military ousted then-
President Mohamed Morsi in favor of Gen. Abdel Fattah el-Sisi. By contrast, an attempted coup against Turkish President Recep Tayyip Erdoğan in 2016 failed.

But despite these high-profile examples, coups are in fact increasingly rare. A 2011 study of democratic backsliding identified 53 historical cases of democratic decline. Out of those, only five
involved coups or other sudden collapses into authoritarianism.

What’s more, since the 1950s, coups have become increasingly infrequent. And they usually take place in a context quite different from the American situation. Full-on democratic collapse
tends to occur in recently established, relatively impoverished democracies, in which civilian control of the military is tenuous. None of those conditions apply in the US (despite economic
problems such as rising inequality).

What about the quick strangulation of democracy using emergency powers? The use of such powers is not uncommon. From 1985 to 2004, 137 countries invoked state-of-emergency
procedures at least once. Commentators who worry about Trump’s behavior after a terrorist attack have something like this in mind.

It is certainly true that the Constitution lacks the careful restrictions on emergency powers that other countries’ constitutions employ. They typically place constraints on the length and scope
of extraconstitutional behavior, and they name the constitutional actors who must sign off on the emergency measures. Not so the US Constitution.

Rather, American presidents and judges have inferred vague emergency powers into many of the Constitution’s key clauses and phrases — such as “Commander in Chief,” which is one basis
for the president’s power to respond to sudden attacks, or the president’s power to “take Care” the laws are enforced, which has been used to justify expansive executive power under both
Democrats and Republicans.

But this drafting failure in the Constitution may paradoxically work to democracy’s advantage. The very fact that government has a great deal of legal discretion in responding to perceived
crisis — often to the detriment of important liberty and dignity interests — means there is far less plausible justification for calling off the regular processes of elections to deal with a crisis.

The Constitution, in other words, often fails to protect individuals when an emergency occurs, as it failed to protect Japanese Americans from internment, and failed to protect some foreign
nationals from torture after 9/11, but in so doing it may be saving democracy writ large.

The most important reasonthe sudden collapse of democracy is rare — and a key reason it is unlikely in the US — is that a sudden derogation of democracy
simply isn’t necessary. Would-be autocrats have a cheaper option to hand, one that is far less likely to catalyze

opposition and resistance: the slow, insidious curtailment of democratic institutions and traditions.
Autocrats often target the three pillars of democratic society using tools permissible under law

To understand democratic backsliding, it’s important to understand the essential components of a democracy. First, there must be elections, which must be both free and fair. Elections by
themselves are not enough: Both Russia and China, after all, have elections that formally reflect the choice of the people, but allow only limited choices.

Second, democracy needs liberal rights of speech and association so those with alternative views can challenge government on its policies, hold it accountable, and propose alternatives.

Finally, democracy can’t work if the ruling party has the courts and bureaucracy firmly in its pocket . The rule of
law — not just the rule of the powerful and influential — is essential.

Take away one of these attributes, and democracy might wobble. Sap all three, and the meaningful possibility of democratic competition recedes from view.

Comparative experience shows that would-be autocrats find it critical first to control the public narrative, often by directly attacking or intimidating the press. Libel suits — Putin notably
recriminalized libel, after it had been decriminalized in 2011 under Dmitry Medvedev — drummed-up prosecutions, and vise-like media regulation accomplish the same ends.

Conjuring or overemphasizing a national security threat creates a sense of crisis, allowing would-be autocrats to malign critics as weak-willed or unpatriotic. Other rhetorical moves are
common: Leaders who wish to roll back democratic institutions tend to depict those institutions’ defenders as representatives of a tired, insulated elite.

An independent judiciary and checks such as legislative oversight of administrative activity can prove
significant barriers. Hence, we often see would-be autocrats trying to pack the courts or intimidate judges
into getting with the program.
When the state bureaucracy insists on rule-of-law norms, it too must be bullied into submission. Weakening civil service tenure protections is an underappreciated way for an executive to
aggrandize power. When government workers hired on the basis of merit are replaced by partisans, this not only removes one potential source of opposition to the executive branch; it
enables a would-be autocrat to direct formidable prosecutorial and investigative apparatuses against political foes. The recent fraud conviction of Putin opponent Alexei Navalny shows how
such tools can be used against an opponent who threatens to amass power through electoral popularity.

Finally, political competition must be stanched, even if elections proceed in some form as a way of enabling leaders to claim a mantle of legitimacy. Modifying term limits is a common move, as
is changing the rules of elections to permanently lock in temporary majorities.

Two case studies in de-democratization: Hungary and Poland

To see the full panoply of these measures being deployed against democracy, there are no better contemporary case studies than Hungary and Poland. Populist governments in both countries
have straitjacketed independent courts, dismantled independent checks on political power, used regulation to muzzle the media or stack it with cronies, and conjured supposed security
threats from immigrants and minorities as a justification for centralizing power and dismantling checks.

In Hungary, the Fidesz government used constitutional amendments to entrench its slim (53 percent) majority beyond easy electoral challenge by changing the composition and operation of a
previously independent electoral commission. The result was that in 2014, it won two-thirds of the parliamentary seats with 45 percent of the vote.

In 2015, the Polish Law and Justice Party did not need a constitutional amendment in order to remake the judiciary in its image. It simply refused to seat judges that had been appointed to
Poland’s highest court by the outgoing party. The Law and Justice Party declared those appointments unconstitutional, then named its own slate. The party also raised the voting threshold for
the court to strike a law (to two-thirds), but this change was declared unconstitutional by the constitutional court itself. The government then refused to publish this and other rulings of the
constitutional court, creating legal confusion and leading the outgoing chair of the court to say that Poland was “on the road to autocracy.”

Hungary and Poland are hardly unique. In Turkey, President Erdoǧan leveraged the 2016 coup attempt to deepen his massive purge of almost every state institution, leaving regime loyalists
firmly in control. As of this writing, more than 135,000 soldiers, judges, police, university deans, and teachers have lost their jobs, in some cases without due process. His AK party has also
suspended and manipulated media licenses, and arrested journalists on national security grounds.

In Venezuela, the Chávez regime has notoriously aggregated executive power, limited political opposition, attacked academia, and stifled independent media — a classic example of “de-
democratization” under the color of law. Some moves have been especially creative. When a political opponent won at the municipal level, the Chávez regime responded by gutting the powers
wielded by the new mayor.

examples of democratic backsliding proceeded through formally constitutional legislation or

Many of these

administrative processes. Alarm in response to each of them can thus be condemned as excessive or
histrionic. But the cumulative effect of many small weakening steps is to dismantle the possibility of
democratic competition, leaving only its facade. It is a death by a thousand cuts , rather than the clean
slice of the coup maker.
This is what makes the slow road from democracy so alluring to seekers of power, and so dangerous for the rest of us. Because it can be masked with a veneer of legality, it can be cloaked with
plausible deniability. It is always possible to justify each incremental step.

Can we rely on the Constitution?

the US Constitution may be good at checking coups or the anti-

So could it happen here? Looking to these recent examples suggests that

democratic deployment of emergency powers, but it isn’t well-suited to stall the slow decay of
democracy. Our 18th-century Constitution lacks provisions necessary to slow down a would-be autocrat bent on the slow dismantling of the republic.
To be sure, the cumbersome American process of constitutional amendment shuts off one avenue for a president who wishes to amass power — say, by ending term limits. But other much-
cited checks and balances have been overrated.

James Madison thought the divergent “ambitions” of the legislative and executive branches would cause those institutions to balance one another. But he failed to anticipate the rise of
parties, and how they would reshape incentives. Congress members today may have little reason to investigate or otherwise rein in an aggressive president of their own party, as we are now
witnessing. That Republicans are not eager to investigate President Trump’s financial dealings, or his contacts with Russia, is entirely predictable, from an institutional standpoint.

Other constitutions give minority parties rights to demand information and make inquiries, but the US Constitution does not.

Where other nations have independent election officials, too many of our election rules depend on the good faith of the party in power. As the omnipresence of gerrymandering shows, good
faith may not be enough. After the 2010 redistricting in Wisconsin, the GOP was able to win 60 of 99 seats in the state legislature, despite winning less than half of the statewide vote. (A case
challenging Wisconsin’s gerrymandering will be heard by the Supreme Court.)

North Carolina Republicans tried a strategy that was straight out of the Chávez playbook when their party’s candidate lost the governor’s race: They cut the governor’s staff by 80 percent,
eliminated his ability to name trustees of the state university, and required that cabinet appointees be approved by the legislature. They also restructured the elections board so that they
would hold the chairmanship during all statewide elections. These moves remain tied up in court.

a growing acceptance in American jurisprudence of “deference” to

The courts are critical in upholding the rule of law. But there is

the political branches. That ideology, in combination with aggressively partisan appointments — Trump is in a
position to fill 112 federal judicial vacancies, out of 870 seats — could erode public confidence in
judges’ ability to stand up to government overreach, and thus lead to democratic retrogression .

In a less polarized time, the US

The independence of even of the Supreme Court is dependent on “norms,” not constitutional rules — and norms can change.

Senate would have held confirmation hearings for Merrick Garland, President Obama’s last Supreme Court nominee, yet by playing
hardball, Republicans may end up reshaping how laws are interpreted for decades to come .
Similarly, in the United States, the civil service, which scholars understand as a bulwark against autocracy, is protected largely by tradition. That is why the Republican move to lay off federal
workers and reduce the benefits of those who remain is so significant, as is a gratuitous revival of a rule that lets them punish individual bureaucrats by slashing their pay. US attorneys also
serve “at the pleasure” of the president; it is largely self-restraint (not always exercised) that prevents presidents from punishing them or rewarding them for partisan legal attacks.

Yet other constitutions create independent ombudsmen offices to monitor corruption or human rights compliance. Not so ours.

While the First Amendment (currently) limits the misuse of libel law, it does not hedge the risk of partisan media regulation by the Federal Communications Commission or other agencies.
Media companies seeking to keep regulators’ favor have now lots of reasons to trim the sails of their political coverage. And the First Amendment, for good or ill, arguably protects sources of
outright propaganda — sites spreading lies about politicians, for example — which could in tandem with presidential attacks on the media as an “enemy of the American people” lead citizens
to distrust all news sources.

There is, in short, nothing particularly exceptional about the American Constitution — at least in any positive sense. Because
of its age, the Constitution doesn’t reflect the learning from recent generations of constitutional
designers. If anything, it is more vulnerable to backsliding than the regimes that failed in Poland, Hungary,
Venezuela, Turkey, and elsewhere.
What will prevent backsliding from occurring here?

Whether or not the United States moves away from its best democratic traditions doesn’t rest on the
Constitution or on simple fidelity to constitutional institutions. Those won’t be enough. Nor will it be
enough to belabor the technical legal merits or demerits of specific executive actions, or their
opponents’ responses. To do so misses the forest for the trees.

the degree to which democratic norms and practices are lost in the United States over the next four years will depend
Rather,

on how both politicians and citizens react. The quality of our democracy will depend on what happens
on the streets, what happens in legislative backrooms (especially on the Republican side), and, most importantly, what happens at the polls. But it won’t
depend, in any simple way, on the Constitution. And at least in this regard, there is nothing exceptional about our current predicament.

The founders
Surveying democratic backsliding around the world, the clear lesson is: Not every wolf threatening democracy howls and bares its teeth. Many threats are stealthy.

not devise autocrat-proof institutions, but they were keenly aware of politicians’
certainly knew that. They did

autocratic tendencies, and felt a great trepidation about whether American democracy should endure.

We would do well to reject feel-good talk about American exceptionalism and embrace some of the
founders’ trepidation.
 AT: Populism Thumps

***note when prepping file --- this could also be a response to “Trump thumps” –
Yglesias says the problem is not specific to Trump – rather he is just a piece of the
larger conservative institutions.

Majoritarian populism is the solution to current democratic decline – radical

opposition is necessary to force changes in conservative institutions
Yglesias, 18 --- written columns and articles for The American Prospect, The Atlantic, and Slate,
currently an editor and columnist for VOX (12/10/18, Matthew, “The Trump-era threat to democracy is
the opposite of populism; The rhetoric and practice of majoritarian populism is the solution,”
https://www.vox.com/policy-and-politics/2018/12/10/18126132/trump-populism-democracy-threat-
minority-rule, accessed on 1/2/19, JMP)

There is a very real threat to liberal democracy in Trump’s America, but it has nothing to do with
populism. In fact, populism — an insistence that government authority reflect the will of the people —
could be a big part of the solution to the current crisis.
Trump looks and sounds like a populist, a leader who whips up his supporters into chanting anti-democratic slogans like, “Lock her up!” But behind the horrible spectacle is a very different
threat: the tyranny of an unaccountability minority.

The most egregious examples are playing out right now in states ranging from North Carolina to Michigan to Wisconsin, where the GOP increasingly has an answer to the problem of what you
do if you lose elections — ignore the outcome and just change the rules to avoid giving up power. Even more alarmingly, in both of the aforementioned Midwestern states, the GOP has been
confirmed in its legislative majorities despite large popular vote losses, due to gerrymandering.

Trump’s governing agenda, meanwhile, has been an unpopular set of initiatives supported by members of Congress who believe themselves, often correctly, to be insulated from popular will

Trump’s greatest policy impact is almost certainly coming from lifetime appointments to the
by electoral maps.

federal judiciary, which will help further entrench conservative policies in places where it is beyond
political control.

The resistance to Trump — the largest and most powerful social movement in
Democrats took the House in a blue wave, but their ability to change policy is limited.

generations — needs to enter a more radical stage that goes beyond electoral advocacy to include civil

disobedience and direct action.

Civil rights advocates registered voters and encouraged

American political history is a story of the fight to live up to our founding ideals.

people to go to the polls, but given the fundamental repressive reality of Jim Crow, they employed acts
of civil disobedience from sit-ins to marches to boycotts that shut down commerce. They made life
uncomfortable for the ruling Southern class and forced institutional change.
Now the resistance is going to have to find opportunities to do something similar, and make the rolling crisis Trump and Republicans have unleashed on American democracy something that’s
discomfiting in tangible ways for the business executives and economic elites who are the real beneficiaries of Trump’s politics.

There has always been more to democratic self-government than “majority rules,” but the notion of will of the people is a powerful one, one that asserts democratic accountability as the core
to a free society. The anti-Trump resistance is bewitched by the specter of populist autocracy. But they need to deploy the rhetorical and organizational tools of a populist movement.

The menace of populist authoritarianism

The specter of majoritarian tyranny has long stalked Western political thought. The founding generation of the American Republic was deeply troubled by the notion of a charismatic
demagogue who might gain the allegiance of the people and use the legitimacy they bestowed upon him to undermine the rule of law and the liberal order.

That’s why they devised a system of government that not only featured separation of powers between branches but also eschewed the direct election of either the president or the US Senate.

Their fears were realized shortly after the Constitution’s promulgation when the charismatic young general Napoleon Bonaparte seized power in a coup d’état that he followed up with a quick
plebiscite to demonstrate his popular support. Plebiscitary dictatorships of this kind became an entrenched aspect of the political scene in later decades.
In today’s world, a number of leaders broadly fit the model of Fareed Zakaria’s mid-1990s warning about the rise of “illiberal democracy.” From Orbán in Hungary to Duterte in the Philippines
to Erdogan in Turkey, there are leaders who ride to power on a wave of genuine popular support and then wield that popularity to trample on the institutional constraints on their power.
Brazil’s newly elected president, Jair Bolsonaro, has not yet gone down this path, but his track record of statements praising Brazil’s former military dictators unquestionably raises the
prospect that he will.

Faced with the threat of populist authoritarianism, the appropriate response really is to retreat to institutionalism and legalism as defenses of the liberal order against the passing madness of
the crowd. The title of Yascha Mounk’s Trump-era book The People vs. Democracy: Why Our Freedom is in Danger and How to Save It captures the spirit of this well.

in the United States. Here, the forces curbing

But while that may describe the situation in Europe or Brazil, it is most definitively not what is happening

democracy do not have popular support . They are relying, instead, precisely on their control of institutions
and constituted legal authority. They do so with the enthusiastic blessing of the Chamber of Commerce and the bulk of the business community.
Populist authoritarianism, in short, is not a phantom, and it’s absolutely true that the practice of durable democratic self-government has always involved more than majority will or occasional

even though Trump strongly echoes many of these populist authoritarians in his personal
elections. But critically,

style, the actual crisis of democracy playing out in the United States has essentially nothing to do with
this.
Establishment Republicans are leading the charge against democracy

While populist autocracy is a real phenomenon in global politics, it happens to be the No. 1 problem the authors of the US Constitution had in mind when designing our system of government.
That system, for all its considerable flaws, is quite robust to resisting efforts to create a personalist dictatorship.

The Senate’s large “advise and consent” role is particularly critical. It’s fairly clear from Trump’s public statements and his conduct vis-à-vis the Department of Justice that he would like to staff
both the executive branch and the judiciary with personal loyalists who have few if any ideological commitments. But he can’t actually accomplish this.

To fill posts on a permanent basis, Trump needs a working majority in the Senate, and that means appointing slates of ideologically reliable conservative Republicans. Trump does try to find
and exploit loopholes in this system — hence acting Attorney General Matthew Whitaker — but by and large, “the system works.” Trump is delivering appointments to both judicial and
regulatory agencies drawn from the same basic Federalist Society and Heritage Foundation lists that anyone plugged into Republican Party establishment institutions would deliver.

The problem is that those institutions themselves are deeply hostile to democracy:

When Democrats won the North Carolina governor’s mansion in 2016, the state GOP used the lame-duck legislative session to strip the governor’s office of powers.

When Democrats won the Wisconsin governor’s mansion in 2018, the state GOP rolled out the same playbook — this time expanding the power-stripping to the attorney general’s office,
which Democrats also won.

They are now doing the same thing in Michigan, where they are also engaging in shenanigans to avoid implementing a minimum wage increase that the legislature passed earlier in the year
specifically to prevent a minimum wage increase from appearing as a ballot initiative.

Meanwhile, there appears to have been systematic election fraud committed on behalf of the Republican candidate in a House election in North Carolina, and zero national figures in the
GOP have anything to say about it. They’ve used hysteria about the basically nonexistent problem of ineligible voters trying to impersonate eligible voters to enact a series of voter suppression
laws in states all around the country.

Of course, interbranch conflict laced with partisanship is not new in America. But the typical remedy for a legislature acting to defy popular will would be to mobilize the public backlash to
their unpopular actions and beat them at the ballot box. But Republicans already lost the popular vote for state legislature in both Wisconsin and Michigan, and they nonetheless won
majorities of seats because of gerrymandering. In North Carolina, the GOP won a narrow majority of votes but has carried a larger majority of seats thanks again to gerrymandering.

Reformers were once optimistic that the Supreme Court might act to curtail these kinds of partisan
gerrymanders, but in a key case last year , former swing Justice Kennedy sided with the four more conservative
justices to decline to act. Then Kennedy retired in a manner timed to ensure that he’d be replaced by an even more conservative justice.
Meanwhile, following Democrat Doug Jones’s victory in the 2017 Alabama special Senate election, Senate Majority Leader Mitch McConnell basically gave up on trying to advance a legislative
agenda since he knew House Republicans’ ideas were too unpopular to be viable in a narrow Senate.

Instead, he focused on confirming as many Federalist Society judges as possible. And with the House now in Democratic control, this trend will only continue. Once installed on the court,
Republican appointees will rule reliably in favor of business interests in litigation against labor groups, consumer plaintiffs, or regulatory agencies while greenlighting the mix of
gerrymandering, vote suppression, and procedural hardball that has entrenched Republican control over the preponderance of American state governments.

this is not a personalistic story about

Trump is, of course, a big part of this story. If Hillary Clinton were in the White House, things would be going differently. But

Trump at all. The attacks on democracy are consensus views in the institutional Republican Party and the
larger conservative movement. The trouble comes not from a populist demagogue trampling on
institutional constraint but from countermajoritarian institutions being deployed to stymie popular
will.
A countermajoritarian crisis

The backdrop to this entire affair is that Trump got elected to the White House after losing the popular vote 46-48. That made him the second Republican presidential candidate in recent
history to secure the White House thanks to an Electoral College quirk, rather than support among the mass public.

House gerrymandering was not enough to save the GOP majority in 2018, but the extent to which gerrymandering “mattered” remains striking:
 In 2010, Republicans won 51.7 percent of the vote and got 242 seats.

In 2014, Republicans won 51.2 percent of the vote and got 247 seats.

In 2018, Democrats won 53.4 percent of the vote and got 235 seats.

It’s not, in other words, that gerrymandering makes it impossible for Democrats to win. But it puts a consistent skew on the political system. Narrow majorities of popular support translate
into big majorities of seats for Republicans, while a larger majority of votes translates into a narrower majority of seats for Democrats.

In the Senate, things are much worse, and Democrats would need to win an enormous landslide of votes to secure even the barest majority of seats.

[image of tweet deleted]

None of these individual circumstances are, on their own, unprecedented in American history. A 2-point edge here in the Electoral College, a Supreme Court majority that can advance a policy
agenda while insulated from popular backlash there, a skew in Senate geography here, a helpful gerrymander or two — these are all the kinds of things that happen under the American
constitutional system. But the 21st century has unfolded — in part by coincidence and in part by design — in a way that has lined them all up in a single direction.

And the basic pattern continues. The most procedurally outrageous aspect of the lame-duck Wisconsin GOP power grab is the post-election limitation of the powers of the governor’s office.
But lawmakers are also adopting changes to voting rules design to limit participation and thus help Republicans win in the future. Florida’s Republican-held state legislature, meanwhile, is
currently hard at work on strategies to undermine a recently passed ballot initiative that is supposed to restore voting rights to felons.

This is an important matter for the state GOP because implementing the felon enfranchisement law may have been enough to reverse the result of the 2018 Senate race and possibly the
gubernatorial election as well.

The steady erection of a system of minority rule that Republicans are implementing is not as dramatic as a populist putsch. But it’s actually happening before our eyes. And it’s led not by the
rabble-rousing president or the unwashed masses who thrill to his rallies, but by the elite network of donors, operatives, and politicians who run the Republican Party and the conservative
movement.

Populism is the answer

The truth about America is that rigged elections are not new.

For nearly a century after the collapse of Reconstruction, the political order in the Jim Crow South was
maintained by the systematic disenfranchisement of the region’s large African-American population.

Electoral politics was certainly an important part of the process that led to that system’s demise, but it
was only a part. Direct action and civil disobedience — not just marches and protests, but systematic
efforts to make life difficult for Southern institutions and power structures — were famously integral to
forcing change.
The wave of sit-ins that struck Southern branches of national chains in 1960, for example, sought to force both store employees and local police to engage in the costly hassle of actually
enforcing unjust laws — massively raising the cost of segregation and inducing executives in the home office to rethink their commitments. A nonviolent 25-day occupation of the Department
of Health, Education, and Welfare office in San Francisco in 1977 helped force the hand of then-HEW Secretary Joseph Califano to finally promulgate long-promised, long-delayed regulations
protecting the rights of Americans with disabilities.

Across 1987 and 1988, ACT UP activists disrupted everything from Broadway plays to the New York Stock Exchange to the main Manhattan post office, eventually forcing a one-day shutdown
of the Food and Drug Administration and successfully pressuring both the private sector and the government to cut prices and boost availability of HIV treatments.

This month, as Republicans in Wisconsin and Michigan were working to undo the people’s will as expressed at regularly scheduled elections, the elder statespeople of the Democratic Party
were gathered in Washington for the funeral of George H.W. Bush — a funeral that, as such funerals do, served as a bipartisan sanctification of the American political system. In its
bipartisanship and dignity, the funeral (like John McCain’s funeral before it) was widely read in the press as a rebuke of Trump’s crassness and outlandish behavior. And it certainly was that.

The face of anti-democratic rule in America is President George W. Bush appointing Supreme Court justices who
handed down a Citizens United ruling whose substance would have been far too unpopular to enact
legislatively. It’s the flood of money unleashed by Citizens United increasing the average GOP share of seats in state legislatures by 5 percentage points. It’s GOP state legislatures
using the conjunction of that bonanza with the 2010 census to redraw maps in a way that lets them continue to hold power with a minority of votes. And it’s gerrymandered, minoritarian
legislatures restricting the voting franchise and aggrandizing their power over popularly elected statewide officials.

But there’s an impulse to rebuke the Trump-specific aspects of the contemporary political crisis while
bolstering the overall legitimacy of the American political order, and it’s counterproductive to the actual
crisis facing American democracy.

Because this process is being carried out in accordance with the law and the institutional order, the
appropriate response is extra-institutional and extralegal appeals to the sovereign authority of the
people. That, in turn, requires popular mobilization not just with appeals to abstract democratic “norms” but
in showing who benefits from minority rule (rich people) and why (to advance their material interests).
In a word, it needs to be defeated with populism.

a populism that is self-confident enough to proclaim that

Not the populism of lawlessness and oppression of cultural minority groups, but

the will and interests of the majority has a special claim to political legitimacy . A claim over and above the formalism of what’s
“allowed” in a world of gerrymandering and lifetime political appointments.
 AT: Raban Ev / Congress Can Check The Court

Raban admits that judicial decisions about voter ID and gerrymandering can’t be
remedied by congress or state courts
Raban, 18 --- Professor of Constitutional Law, University of Oregon (11/24/18, Ofer, “Kavanaugh’s
impact on the Supreme Court and the country may not be as profound as predicted; Supreme Court
rulings are often not the last word on a matter,” https://www.salon.com/2018/11/24/kavanaughs-
impact-on-the-supreme-court-and-the-country-may-not-be-as-profound-as-predicted_partner/,
accessed on 12/18/18, JMP)

There is an important qualification to this general rule. While Supreme Court decisions that declare laws
to be constitutional can be made irrelevant by legislatures or by state courts, things are trickier when it
comes to laws that distort our democracy - like onerous voter ID requirements or gerrymandered
voting districts.

After all, such decisions impact the composition of the very institutions that could remedy the issue.
Officials elected thanks to voter suppression or political gerrymandering are not likely to repeal such
measures. Thus, Supreme Court decisions that uphold antidemocratic measures should also count as
potentially irremediable.
Other Courts Disads
 DA Court Politics – Roberts is Swing Vote

Roberts has become the swing vote on the death penalty

Ford, 18 (7/19/18, Matt, “America Is Stuck With the Death Penalty for (at Least) a Generation; With
Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go
local,” https://newrepublic.com/article/150036/america-stuck-death-penalty-at-least-generation,
accessed on 4/29/2020, JMP)

With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty
for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a
reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump
himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death
penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears
death-penalty cases compared to the other federal appellate circuits.

As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices
Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil
Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar
manner, the court’s posture toward the death penalty would shift decisively away from limiting its
scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s
now whatever Chief Justice Roberts decides that it is,” Dunham said.

Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also
joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the
2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the
sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though
the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too
much. “Some toxins are deadly in small doses,” he wrote.
 DA Court Legitimacy – Link

Political branches should decide the future of the death penalty --- the plan will be
perceived as the Court imposing its beliefs on society
Mitchell, 17 --- Visiting Professor of Law at Stanford (5/10/17, Jonathan F. Mitchell, “Capital
Punishment and the Courts; Death Penalty Commentary Series,”
https://harvardlawreview.org/2017/05/capital-punishment-and-the-courts/, accessed on 4/16/2020,
JMP)

Perhaps the most troubling aspect of the Supreme Court’s regulation of capital punishment has been its
failure to persuasively explain why the Court’s judgments surrounding the use of capital punishment
should prevail over the decisions made by the political branches. Judgments surrounding the proper
scope of the death penalty rest on empirical and philosophical disputes on which reasonable people
disagree — so it is not apparent why the Supreme Court (of all institutions) should have the final word
on any of these matters. None of the Court’s opinions conclusively refute the empirical or
philosophical beliefs of those who support the widespread application of capital punishment, and
until the Court can do so it will remain vulnerable to the charge that it is simply imposing its beliefs on
the rest of us. The Steikers are right to critique the Court’s efforts to regulate capital punishment, but
the problems go beyond what they identify in their thorough and comprehensive book.

The plan would undermine public support for the Court --- it wants the death penalty
retained as a response to terrorism
Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)

Also, for what it's worth, I never thought the Supreme Court was going to take on the constitutionality
of the death penalty any time soon. I didn't think it was going to happen a year ago, when I had little
doubt that Trump would never get elected - so obviously I'm not much of a prophet. But the reason
wasn't Trump, or the things he was saying. It was terrorism.

Americans support the death penalty for terrorists more than they support the death penalty in
principle. We have seen this repeatedly in opinion polls. When asked in 2001 if they support the death
penalty, 62% said yes - but 75% said that Timothy McVeigh, the Oklahoma federal building bomber,
should be executed. The same thing happened again in 2015, in polls about Dzhokhar Tsarnayev, the
Boston Marathon bomber.

There have been several terrorist attacks in the United States in the last few years. They could get
worse, as everyone knows. In July 2016, a terrorist in a truck killed eighty-six people and injured more
than 450 in Nice, France. The same, or worse, could happen any time in Miami Beach or in Portland. If
the Supreme Court chose to abolish the death penalty, it would make that decision in March or April of,
say, 2019, and then issue an opinion abolishing the death penalty in late June of that year - knowing all
along that in May or in July there might be a terrorist attack of that magnitude somewhere in America. I
can't imagine the Court doing that.
 AT: Courts Reducing Death Penalty

The Court won’t abolish the death penalty --- too fearful of backlash
Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.226-228,
JMP)

Will the Supreme Court Abolish the Death Penalty?

“Welcome to Groundhog Day,” wrote Justice Antonin Scalia, always the most fervent death penalty
defender on the Supreme Court, in response to calls that the court abolish the death penalty. This was in
2015, when, yet again, a death row inmate was arguing that the death penalty violated the Eighth
Amendment, and yet again, “a vocal minority of the Court . . . insist that now, at long last, the death
penalty must be abolished for good.”31 Could this time be different? Perhaps the Supreme Court could
do it again, as they did in Furman v. Georgia, which abolished the death penalty nationwide. The justices
must remain chastened by what happened after Furman , though, when the court made its
embarrassed about-face just four years later, with public support for the death penalty resurgent and a
backlash against the court’s interference materializing. Once bitten and twice shy, perhaps.

When “a country of over 200 million people inflicts an unusually severe punishment no more than 50
times a year, the inference is strong that the punishment is not being regularly and fairly applied,” wrote
Justice William Brennan when the court struck down the death penalty in 1972.32 The story of the great
death penalty decline raises complex constitutional questions. The Supreme Court has long been
concerned with arbitrariness as evidence that the death penalty is a cruel and unusual punishment
under the Eighth Amendment. Today we are a country of over 320 million, and we are imposing it less
than fifty times a year. We now have about ten thousand murders a year—and only a few dozen result
in death sentences. Most of the remaining death sentences are imposed in states like California that are
not carrying out executions. The American death penalty is now arbitrary in the extreme. “These death
sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,”
Justice Potter Stewart famously wrote in his opinion in Furman v. Georgia. Today, in fact, the odds of a
death sentence for a convicted murderer are not so different than the odds of being struck by lighting.

Supreme Court Justices still talk about abolishing the death penalty. Some do it only when they are
about to retire or have retired. Supreme Court Justice Harry Blackmun did that, then Justice David
Souter and then Justice John Paul Stevens. Breaking that pattern, in his 2015 opinion in Glossip v. Gross,
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, suggested categorical opposition to the
death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in
public opinion, and the decline in death sentences across the country. Justice Breyer added concerns
about wrongful convictions, arbitrariness, and delay—and so he called for full briefing on whether the
American death penalty violates the Eighth Amendment.33 In 2016, Justice Sonia Sotomayor noted that
many have questioned the fairness and reliability of the death penalty, and in a sharp dissent she argued
that for defendants “whose lives are marked by extensive mitigation circumstances that might convince
a jury to choose life over death,” it is crucial that the jury be given the chance to “make the weighty—
and final—decision whether such a person is entitled to mercy.”34
The research I have presented provides new reasons to be concerned with the constitutionality of the
death penalty. The death penalty is an outlier phenomenon in a small number of counties. Furthermore,
if one of the drivers of the decline is improved lawyering, then there is an added concern over the right
to counsel protected under the Sixth Amendment, as well as the Eighth Amendment right to be free
from cruel and unusual punishment. If people are sentenced to death because the state gives them the
worst lawyers, and not because they are the worst murderers, then today’s death penalty becomes all
the more troubling. Where race and arbitrary differences among county prosecutors play a driving role
in death sentencing, then the punishment exists only as a bigoted relic of our past.

Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it
ourselves. Some law professors think the courts provide false hope, and only by changing public opinion
and the law on the ground can meaningful and lasting change occur. Then again, the pace of social and
legal change in recent years on other constitutional issues has surprised many observers. None thought
that same-sex marriage would be so quickly adopted in states and then found constitutionally protected
by the Supreme Court. Are there lessons from the same-sex-marriage movement, which resulted in a
victory in the Supreme Court, for the anti–death penalty movement? The same-sex-marriage litigators
achieved victories in many lower courts before they took their case to the Supreme Court , building a
substantial factual record in the process. They also achieved victories in statehouses. Anti–death
penalty forces have done the same, actually, with more states abolishing the death penalty and
vanishingly few death sentences on the ground.

Groundhog Day will repeat itself many times in the years ahead. Death row inmates are filing briefs,
heeding Justice Stephen Breyer’s call to bring to the Supreme Court the question whether the entire
death penalty is unconstitutional. Some law professors argue that the courts have constructed the
American death penalty since the 1970s, and that it must be the courts that finally reckon with their
creation. Still, it is not at all clear that many on the Supreme Court would make such a bold move after
decades of incremental regulation of the death penalty. The justices may be too invested in the
modern death penalty they created.

The Court won’t overturn the death penalty --- public wants to retain it as a response
to terrorism
Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)

Also, for what it's worth, I never thought the Supreme Court was going to take on the constitutionality
of the death penalty any time soon. I didn't think it was going to happen a year ago, when I had little
doubt that Trump would never get elected - so obviously I'm not much of a prophet. But the reason
wasn't Trump, or the things he was saying. It was terrorism.

Americans support the death penalty for terrorists more than they support the death penalty in
principle. We have seen this repeatedly in opinion polls. When asked in 2001 if they support the death
penalty, 62% said yes - but 75% said that Timothy McVeigh, the Oklahoma federal building bomber,
should be executed. The same thing happened again in 2015, in polls about Dzhokhar Tsarnayev, the
Boston Marathon bomber.

There have been several terrorist attacks in the United States in the last few years. They could get
worse, as everyone knows. In July 2016, a terrorist in a truck killed eighty-six people and injured more
than 450 in Nice, France. The same, or worse, could happen any time in Miami Beach or in Portland. If
the Supreme Court chose to abolish the death penalty, it would make that decision in March or April of,
say, 2019, and then issue an opinion abolishing the death penalty in late June of that year - knowing all
along that in May or in July there might be a terrorist attack of that magnitude somewhere in America. I
can't imagine the Court doing that.

The Courts has limited the death penalty but abolishing it is unlikely
Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

At the same time, the United States Supreme Court seems to similarly disfavor the death penalty, having
narrowed its scope over the past few decades. The Court even brought it to a halt briefly for a few years
in the mid-1970s. 12 But permanent abolishment is unlikely to occur there.

In a recent opportunity to end the death penalty, only Justices Breyer and Ginsburg would have done
so. 13 They believe it is unconstitutional under the Eighth Amendment, which prohibits "cruel and
unusual punishments" 14 because of the "(1) serious unreliability, (2) arbitrariness in application, and (3)
unconscionably long delays." 15 Justice Breyer, authoring the dissent, proposed that "rather than try to
patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic
question: whether the death penalty violates the Constitution." 16

Justice Scalia countered in a scathing concurrence: "It is impossible to hold unconstitutional that which
the Constitution explicitly contemplates." 17 His successor appears to hold a similar view. 18 This makes
it doubtful that the present Court would reach the [*3] five votes necessary to find that the death
penalty violates the Eighth Amendment.

Yet, the Court regularly faces capital punishment cases, often siding for the criminal defendant. 19 As I
write this essay, the Court has taken up eight cases involving death penalty issues during the 2017-18
Term. 20

Court declined to hear recent case that would have directly presented the
constitutionality of the death penalty
Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

B. Supreme Court Jurisprudence

That the Supreme Court tolerates the death penalty does not mean it has not established limits.
Numerous challenges have been brought arguing that various aspects of the death penalty are
unconstitutional under the Eighth Amendment's prohibition against "cruel and unusual punishments."
33 In fact, at one point in the early [*6] 1970s, the Court declared the death penalty itself
unconstitutional 34 only to find that it is not a few years later, as long as the sentencing body has
sufficient guidance to account for both aggravating and mitigating factors, and a review procedure exists
to prevent discrimination in imposing a death sentence. 35 (So, for example, where a mandatory death
penalty for a wide range of homicides would be unconstitutional, 36 a sentencing procedure with some
mandatory features might not be, such as a requirement that a jury impose death if an aggravating
factor exists and mitigating factors are absent. 37) The Court soon thereafter took capital punishment
off the table in the case of adult rape, 38 non-homicidal kidnapping, 39 and felony murder. 40 Similarly,
the Court has held that the death penalty cannot be imposed on an individual who is deemed insane at
the time of punishment 41 or who is mentally disabled. 42 More recently, in 2005, the Court decided it
is cruel and unusual to execute a person under the age of eighteen at the time of the crime. 43 The rape
of a child was excluded from the death penalty in 2008. 44

[*7] The Court regularly hears death penalty appeals and requests for stays of execution. 45 Concerns
raised include mitigating factors, 46 racial discrimination, 47 methods of execution, 48 and ineffective
assistance of counsel. 49 Many of these determinations are part of the so-called "shadow docket"
without the public argumentation and opinion writing typically associated with the Court. 50 In the
2016-17 Term alone, the Court considered seven cases involving the death penalty, siding with the
criminal defendant more often than not. 51 The Court took up eight cases for the 2017-18 Term, 52
declining to hear one that would have directly presented the constitutionality of the death penalty;
Hidalgo v. Arizona. 53 The case involved a challenge to the sentencing scheme utilized by Arizona have
directly presented the constitutionality of the death penalty courts, which includes [*8] numerous
aggravating factors, so many that the scheme makes most, if not all, first-degree murder convictions
eligible for the death penalty. 54

The Court's struggle with death penalty cases mirrors the data revealing the flawed application of this
form of punishment.

Court won’t rule it unconstitutional

Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

[*10] Despite the decrease in death penalty sentences and executions, despite the empirical studies
undermining any support for the death penalty as a deterrent or less costly punishment, and despite the
number of wrongful convictions and exonerations in death penalty cases, a majority of the Supreme
Court appears unlikely to conclude that the death penalty is per se unconstitutional under the Eighth
Amendment. But, the death penalty would be unconstitutional if an amendment made it so.
Nuclear Deterrence DA
 1nc DA Nuclear Deterrence

Death penalty sustains credibility of U.S. nuclear deterrence

Yin, 03 --- Associate Professor, University of Iowa College of Law (Fall 2003, Tung, “Disposable
Deontology: The Death Penalty and Nuclear Deterrence,” 55 Ala. L. Rev. 111, Nexis Uni via Umich
Libraries)

As an aside, notice that the United States' bloodlust for the death penalty may have the curious side
effect of bolstering the credibility of the threat of American nuclear deterrence . Given that the death
penalty has not been demonstrated to have a deterrent effect, it obviously has no meaningful
rehabilitative potential, and it costs more to implement than life imprisonment, 175 what emerges is
that Americans are willing to pay a premium to exact retribution . If that is so, then any nuclear
adversary of the United States must take into account the retributive character of Americans in deciding
whether American nuclear deterrence is just a "bluff."

Nuclear deterrence is the bulwark against great power wars. Russia, China, Iran, and
North Korea are all avenues for escalation.
Carter, 17 - former Secretary of Defense (Ash, Nuclear Deterrence: Still the Bedrock of US Security,
April 6th, https://www.the-american-interest.com/2017/04/06/nuclear-deterrence-still-the-bedrock-of-
us-security/)

While much has changed in the more than 35 years since I first served in the Pentagon, nuclear
deterrence remains crucial to our nation’s defense and to strategic stability. Even if nuclear weapons
fortunately make fewer headlines than they did during the Cold War and immediate post-Cold War
days, the people, capabilities, and systems that comprise America’s nuclear force remain the bedrock of
the nation’s security. In light of dramatic changes in the nuclear security environment against an
unchanged backdrop of the terrible destructiveness of nuclear weapons and the ineffectiveness of
defenses against them, the Defense Department took steps in recent years, culminating in my time as
Secretary of Defense from 2015 to 2017, to recapitalize the nation’s nuclear force to ensure safe, secure,
and effective deterrence well into the future.

These investments and this recapitalization are not intended to stimulate competition with anyone else;
and it is clear they are not having that effect. Indeed, those worried about the start of a new arms race
miss the lesson of the past two decades: Despite decades of American and allied reserve—for 25 years
our nations have refrained from building anything new—many countries, including Russia, North Korea,
and more, have been doing just that. And some of these nations are even building some new types of
weapons. So those who suggest that the U.S. recapitalization is a major stimulus to other powers to
build more do not have the evidence of the past 25 years on their side.

The Enduring Role of Nuclear Deterrence

It is a remarkable achievement that in the more than seven decades since August 1945, nuclear
weapons have not been used again in war. But that is not something that can ever be taken for granted.
Nuclear weapons remain the single most fearsome and dangerous technology created by humankind.
And for that reason, the Defense Department’s highest priority mission is nuclear deterrence. To that
end it has long devoted enormous resources, thought, and energy to prevent their use in war.

In all the years since the Manhattan Project, no one has ever found a perfect defense against these
weapons. As a result, only through our own nuclear enterprise can we hope to deter nuclear attacks that
would result in enormous devastation. Deterrence is a simple concept, at once elegant and crude, but it
rests on a complicated, human-intensive, and technology-intensive system of systems. As a result, the
Defense Department dedicates some of its best people and most advanced technology to this mission.

As to the human inputs, thousands of men and women across the country, in uniform and as civilians,
contribute to the nuclear deterrence mission. The workforce that keeps the nation’s nuclear enterprise
safe, secure, and effective is composed of operators, enablers, maintainers, planners, communicators,
security forces, engineers, and facilities personnel on Defense Department bases and installations;
scientists, engineers, and technicians in the Department of Energy weapons labs; and many more,
including in the defense industry. Each member of that workforce is key to the nation’s deterrence
effort.

Technologically, there are also many different pieces to this system. It is built on the bedrock of the
“triad:” the nation’s ICBMs, bombers, and sea-launched ballistic missiles.1 Just as critical to the mission
is the network of capabilities that enable nuclear command and control, communications, and
integrated tactical warning and attack assessment—satellites, radar systems, ground stations, command
posts, control nodes, communications links, and more—that ensure the triad all works assuredly but
only on command, and cannot misfire either by mistake or by the deliberate act of a malevolent insider.

Together, this system of systems provides the one person whom the nation has entrusted with the
immense nuclear decision-making responsibility—the President of the United States—the best possible
picture of information, so that the President can make the most informed decision possible to keep our
country safe and prevent nuclear war. The confidence—of Presidents and Washington policymakers,
the nation’s allies and partners, and our potential adversaries—that every part of this system is
working as smoothly as it should is what makes nuclear deterrence effective. Ensuring that knowledge
demands unparalleled excellence from every person involved with the Defense Department’s nuclear
force.

Much has changed since the end of the Cold War, and for that we can be grateful. Through extensive
negotiations with Russia, the U.S. nuclear stockpile is 85 percent smaller than it was at its Cold-War
peak. And in today’s security environment, which is dramatically different from that of the past
generation and still more different from the generation before that, the United States faces a nuclear
landscape that continues to evolve. Many of these changes, however, are adverse, and are also less
predictable going forward than during the Cold War.

One feature of the landscape that has assuredly not changed is the nature of nuclear deterrence itself: It
still depends on the perception of America’s potential adversaries about our will and ability to act. At
a strategic level, the Defense Department’s nuclear forces are still intended to deter large-scale nuclear
attack against the United States. And U.S. security commitments to our allies in the Asia-Pacific, the
Middle East, and Europe, and as part of the North Atlantic Treaty Organization (NATO) have not altered.
The nuclear posture also continues to do much more. It contributes to convincing potential adversaries
that they will not be able to escalate their way out of a failed conventional aggression . It helps ensure
that, in a regional conflict, a losing state will not be tempted to build and escalate to nuclear weapons
use in order to cause the United States and its allies to back down. The U.S. nuclear posture also
assures allies that extended deterrence guarantees are credible , which enables many of them to forgo
developing nuclear weapons themselves , despite their own strategic predicaments and the relative
technological ease of developing these weapons. And should deterrence ever fail despite our best
efforts, the Defense Department’s nuclear posture provides the President with options to achieve U.S.
and allied objectives, a responsibility that every President must take with the utmost seriousness.

In some other respects, however, today’s nuclear landscape is dramatically different than it was during
the Cold War. Our deterrent must adapt accordingly to continue to preserve strategic stability and
nuclear restraint in this new landscape and ensure that the threshold for nuclear use does not lower.

While the United States has built no new types of nuclear weapons or delivery systems for the past 25
years, and while our allies in Asia, the Middle East, or NATO have not either, many other states have
done just that. Russia has long been a nuclear power, but Moscow’s recent saber-rattling and building of
new nuclear weapons systems raises serious questions about its leaders’ commitment to strategic
stability, their regard for the long-established abhorrence of the use of nuclear weapons, and their
respect the profound caution that Cold War-era statesmen—Russian and American alike—showed with
respect to brandishing nuclear weapons.

Russia is investing in new ballistic missile submarines, heavy bombers, and the development of a new
ICBM. These investments by themselves would not be novel, even if they necessitate continued, strong
American deterrence. But they are also paired with novel concepts for how nuclear weapons could be
used and some entirely new and even bizarre types of nuclear weapons systems, suggesting an increase
in Russia’s reliance on nuclear weapons in its strategic planning instead of the decrease that the
United States has long sought.

Meanwhile, North Korea continues to proceed with a 15-year breakout of nuclear weapons and
missiles that will likely pose an increasing threat to the United States and its allies. North Korea has
conducted tests of land-based ballistic missiles and submarine-launched ballistic missiles. It continues to
develop its KN08 road-mobile ballistic missile, which, while still untested, could become capable of
delivering a warhead to the continental United States. And in 2016 alone, North Korea conducted its
fourth and fifth nuclear tests.

In view of North Korea’s breakout, the United States and its allies have continued to build more robust
ballistic missile defenses to stay ahead of the North Korean threat, including deploying additional and
improved Ground-Based Interceptors in Alaska, and agreeing with our Korean allies to deploy the
Terminal High-Altitude Area Defense system, or THAAD, in the Republic of Korea, enhancing existing
defenses in the Republic of Korea, Japan, Guam, and afloat. While not a perfect protection against
nuclear attack, missile defenses contribute to deterrence by complicating the analysis of a potential
adversary that a nuclear attack will succeed. The United States must continue to back up those defenses
against North Korean missile attack with extended deterrence: the commitment that any attack on
America or its allies (in this case South Korea and Japan) will not only be defeated, but that any use of
nuclear weapons will be met with an overwhelming and effective response. The United States also
maintains ever-improving conventional defense forces on the Korean Peninsula, which reinforce South
Korean forces that also continue to improve.

Russia and North Korea are two countries that, albeit very different in kind and capabilities, stand out in
today’s evolving nuclear landscape. There are others as well. While China has generally conducted itself
professionally in the nuclear arena, refraining from saber rattling, at the same time it has increased its
arsenal in both quality and quantity. China is developing a road-mobile ICBM capable of carrying
multiple reentry vehicles, an intermediate-range ballistic missile that will likely have both nuclear and
conventional variants, and it is constructing an additional nuclear-powered ballistic missile submarine to
join the four that it has already commissioned.

Iran’s nuclear aspirations have been constrained at least temporarily, and transparency over its activities
has been increased, by the 2015 nuclear accord. The Joint Comprehensive Plan of Action, as long as it
continues to be implemented and honored, will verifiably prevent Iran from acquiring a nuclear weapon.

India has shown responsible behavior with its nuclear technology generally over several decades but
continues to expand its arsenal. Pakistan’s nuclear weapons, meanwhile, are entangled in a history of
tension with India. The United States works with Pakistan to ensure stability, yet its nuclear arsenal also
continues to grow in scale and scope. As the breakup of the Soviet Union and the subsequent Nunn-
Lugar program illustrate, in all states and emphatically in Pakistan, both internal political turmoil and
command-and-control shortcomings are a constant source of danger.

Despite the actions of some states, today’s nuclear environment is not nearly as bad as it might have
been. Indeed, non-proliferation and arms control initiatives, including President Obama’s Nuclear
Security Summits and the Nunn-Lugar program, have slowed the wider spread of nuclear weapons and
prevented the dangers of loose nuclear weapons. Such actions have contributed measurably to the
nuclear peace that uneasily settled over the world in 1945.

Nevertheless, the changing nuclear landscape and significant investments by many other countries in
new nuclear weapons systems pose challenges to that peace . While other actions in defenses and non-
proliferation are critical, it will also be necessary to ensure nuclear deterrence on behalf of the United
States long into the future. To that end, the United States must stay the course on the plan of correcting
decades of underinvestment in its nuclear deterrent dating back to the end of the Cold War, when
funding for the nuclear enterprise dropped dramatically.2
 2nc Perception / Credibility Key

Credibility of nuclear strike capability is the key – alternatives invite enemy first
strikes
Feaver 17 (Peter, professor of political science and public policy and Bass Fellow at Duke University,
and director of the Triangle Institute for Security Studies and the Duke Program in American Grand
Strategy, “Statement to the Senate Foreign Relations Committee On the Authority to Order the Use of
Nuclear Weapons,” Senate Foreign Relations Committee, 11/17/2017,
https://www.foreign.senate.gov/imo/media/doc/111417_Feaver_Testimony.pdf)

First, at
the heart of the nuclear command and control system is what might be called the always/never
dilemma. For nuclear deterrence to work, we must have a high assurance that the country will always
be able to present a credible nuclear strike capability to our adversaries, even in the most-dire scenarios. Otherwise,
if others believe that some sort of massive or cleverly designed first strike could render our nuclear
arsenal unusable, adversaries will have a powerful incentive to strike us first and early in any unfolding
crisis.

Perception is key to U.S. deterrence – it outweighs other internal links

Perry, 09 – Chairman of the Congressional Commission (William J. Perry, James R. Schlesinger – Vice
Chairman, Other members include: Harry Cartland, Fred Ikle, John Foster, Keith Payne, John Glenn,
Bruce Tarter, Morton Halperin, Ellen Williams, Lee Hamilton, and James Woolsey, America’s Strategic
Posture: The Final Report of the Congressional Commission on the Strategic Posture of the United
States, http://media.usip.org/reports/strat_posture_report.pdf, JMP)

With those broader aspects of deterrence in mind, we can return now to the narrower question of how
to design a nuclear force that can be effective in influencing the cost-benefit calculus of the leaders(s) of
a state contemplating possible challenges to and attacks on U.S. vital interests.

It is important to underscore that deterrence is in the eye of the beholder (as is assurance). Whether
potential adversaries are deterred (and U.S. allies are assured) is a function of their understanding of
U.S. capabilities and intentions. Those capabilities must be sufficiently visible and sufficiently impressive.
But deterrence is more than a summary calculation of cumulative target kill probabilities. And it is not
simply a function of technical characteristics of the nuclear force. It derives also from perceptions of
U.S. intent and credibility, and the declaratory policy that embodies these factors. // pg. 22

The perception of nuclear deterrence is key to prevent and contain conflicts

General Habiger, 97 --- commander in chief of the U.S. Strategic Command (General Eugene E.
Habiger, USAF, Joint Forces Quarterly, “Strategic Forces for Deterrence,” Winter 1996–97,
http://www.dtic.mil/doctrine/jel/jfq_pubs/strat.pdf, JMP)
Deterrence is based on perception, so that a potential enemy will calculate that the likelihood of
success is so uncertain and risks so excessive that there is no incentive to attack. If warfighting
capabilities exist but are not apparent , or if vulnerabilities negate those capabilities at the outset of conflict, or if we appear
unwilling to employ them, deterrence is more likely to fail. Thus effective deterrence requires a range of credible
warfighting capabilities— suited to the circumstances, threat, and interests—with the clearly communicated determination to use them in the
event of aggression. As experienced in countless cases, this requirement applies to both nuclear and nonnuclear forces.

If a conflict breaks out despite our best efforts to prevent it, deterrence does not cease to be a strategic
objective. We seek to “control escalation and terminate the conflict on terms favorable to the United
States and its allies.” 2 Regardless of the nature of the difficulty, the United States seeks to deter an enemy from escalating the intensity
or scope of any conflict and, once our objectives are met, to deter it from continuing hostilities at all. In the case of the Persian Gulf War, for
example, President Bush told Saddam Hussein that the United States would not tolerate the use of chemical or biological weapons. And though
never explicitly threatened, Iraq
believed that the United States was prepared to use nuclear weapons if it did not
heed America’s warning. This demonstrates that deterrence is inherently strategic, aimed at directly
influencing enemy decisions on using force even in the midst of conflict. Warfighting also must not be understood
in only operational or tactical terms—vis-à-vis its effect on opposing forces in the battlespace—but in terms of its strategic effect on enemy
leaders, where the ultimate decision is made on using force.

In considering military strategy and doctrine, planners legitimately emphasize conventional warfighting. For example, having recognized the
contribution of nuclear weapons to deterrence, JV 2010 argues that “we will largely draw upon our conventional warfighting capabilities . . . to
deter, contain conflict, fight and win, or otherwise promote American interests and values.” Such a position is understandable, especially given
that developing, training, and sustaining the requisite conventional forces consumes the largest share of the defense budget. It also highlights a
desire to reduce reliance on nuclear weapons. But the experience of the past few years confirms that nuclear
weapons continue to
provide an essential complement to conventional forces. Notwithstanding new technology, the strategic end is the same
—to convince an enemy that the result of aggression against the United States or its interests is dangerous.
 2nc Controls All Conflicts

Deterrence controls all causes of conflict

Kehler 17 (C. Robert, retired United States Air Force general who served as Commander, U.S. Strategic
Command from January 28, 2011 to November 15, 2013, “STATEMENT OF GENERAL C. ROBERT KEHLER
UNITED STATES AIR FORCE (RETIRED) BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE 14
NOVEMBER 2017, pp. 2-3,
https://www.foreign.senate.gov/imo/media/doc/111417_Kehler_Testimony.pdf)
While the end of the Cold War allowed the US to diminish the role and prominence of nuclear weapons in our defense planning and to
dramatically reduce both the number of deployed weapons and the overall size of the stockpile, nuclear deterrence remains
“crucial to our nation’s defense and to strategic stability ”.i Although no longer needed to deter a conventional attack
from the massed armored formations of the now extinct Soviet Union and Warsaw Pact, nuclear weapons continue to prevent
both the coercive and actual use of these weapons against the US and its allies (their primary purpose),
constrain the scope and scale of conflict , compel adversary leaders to consider the implications of
their actions before they act, and (via extended deterrence) obviate the need for additional allies and
partners to acquire their own . Nuclear weapons are only one of many important instruments that must be
orchestrated for maximum deterrent credibility and effect in the 21st Century; however, today no other weapon
can replace their deterrent value.

To remain a credible deterrent tool, the US nuclear force must present any would-be attacker with little
confidence of success and the certainty of an assured response against his highest value targets. Therefore,
the US must continue to take the necessary steps to field a modern nuclear force that presents an adversary with insurmountable attack and
defensive problems, demonstrates resolve and commitment to allied security guarantees, provides the president with a range of options to
deal with crisis or conflict, and serves as an effective hedge against technical failures or geopolitical uncertainty. Central to this force is an
upgraded nuclear command, control, and communications (NC3) system that ensures the president always remains linked to his critical
advisors and the nuclear forces for positive control.

The potential for an American first strike doesn’t hurt strategic stability. US nuclear
superiority prevents war by reducing power parity and preventing the initiation of
conflicts.
Kroenig 18—Matthew Kroenig, Associate Professor in the Department of Government and the
Edmund A. Walsh School of Foreign Service at Georgetown University, Ph.D. in Political Science from UC
Berkeley (“Strategic Stability,” Chapter 6 in The Logic of American Nuclear Strategy: Why Strategic
Superiority Matters, Oxford University Press, pages 131-142)

Over the years, the

idea that military nuclear advantages might increase the risk of war has come to be
applied not only to a perfect first-strike capability , but to any development that might improve one’s
counterforce capabilities or limit one’s vulnerability to nuclear war . Quantitative nuclear warhead advantages, MIRV
warheads, accurate or prompt delivery systems, counterforce doctrines and policies, missile defenses, civil defenses, conventional prompt
global strike, and hypersonic glide vehicles have all been opposed for this reason.9 In short, many of the very elements of a robust
nuclear posture that the United States has long maintained and pursued are thought to be
“destabilizing” according to strategic stability theorists.

These criticisms continue to the present day . For example, in 2010, Michael Gerson argued that the United States
should adopt a nuclear “ no first use ” policy because if adversaries fear a US nuclear first strike, then
they might have an incentive to go first, undermining strategic stability.10 In 2016, Charles Glaser and Steve Fetter argued that
the United States should abandon a counterforce strategy for China, because “U.S. damage-limitation capabilities and efforts to preserve and
enhance them are likely to create pressures that increase . . . the overall probability of nuclear war between the United States and China.”11 In
2017, Caitlin Talmadge argued that Chinese fears of US counterforce strikes could lead to Chinese nuclear escalation.12 And The New York
Times reported in August 2017 that President Trump’s plans to modernize the US nuclear arsenal could be “destabilizing.”13 These arguments
have always been controversial. Indeed, perhaps the central divide in debates over US strategic policy is often over the question of whether the
desired end state is superiority or mutual vulnerability. On the side of vulnerability, one often finds Democrats, the US Department of State,
arms control advocacy (p.131) groups, and a majority of international relations scholars (who, it bears noting, also tend to be on the left side of
the political spectrum). On the side of superiority, one generally finds Republicans, the US Department of Defense, the national laboratories in
the Department of Energy, the defense industry, and right-leaning think-tank experts.

Yet, despite these debates, the United States has tended to develop and maintain a robust nuclear force
in the face of unrelenting criticism from opponents. We see these fights playing out again today as
Washington continues to improve its missile defense capabilities, test hypersonic weapons, and
modernize its nuclear arsenal in spite of outside pressures to stop.14

This then returns us to the central question of the book: is US nuclear strategy illogical ? Is Washington increasing the
risk of nuclear war in a quixotic quest for illusory strategic advantages? Or is it rather notions of strategic stability
themselves that are unsound?
International Relations Theory, Causes of War, and Nuclear Strategic Stability

This section explores the concept of strategic stability through the prism of international relations theory. It shows that, contrary
to the
claims of strategic stability theorists, state-of-the-art i nternational r elations research would suggest that
nuclear superiority is stabilizing and it is in fact nuclear parity that is destabilizing .
When considering a specific problem, a good international relations scholar will often ask: what is this a case of? When trying to understand the
ongoing insurgencies in Iraq and Afghanistan in the mid-2000s, for example, many smart analysts recognized these as cases of the broader
phenomenon of interethnic civil war and turned to the academic literature on this subject for guidance.15 This section makes a similar move.
Arguments about military nuclear advantages and nuclear strategic stability are essentially arguments about how the military balance of power
affects the likelihood of war. What then does the international relations scholarship tell us about this subject?

I nternational r elations scholars have long debated the effects of balances of power or preponderances of
power for international stability. Traditional realist arguments have maintained that the balance of power is a near law-like
phenomenon in international politics. As Jean-Jacques Rousseau wrote, “It maintains itself without effort, in such a manner that if it sinks on
one side, it reestablishes itself very soon on the other.”16 Taking the balance of power as a given, structural realists have theorized about
whether different distributions of power balances are more or less stable. Kenneth Waltz, for example, theorized that multipolar (p.132)
worlds, with several great powers, are less stable than bipolar worlds, made up of only two major powers.17

Other international relations scholars, however, did not take the balance of power for granted. They theorized that preponderances of power
are possible and may be more stabilizing than power balances. In 1973, for example, Geoffrey Blainey famously argued that the
fundamental cause of war was, in fact, disagreements about the balance of power .18 He argued that in order for
two states to choose to go to war, leaders on both sides must believe that they have at least some shot of
winning. And he argued that both sides were likely to believe they had a shot of winning when they were close to evenly matched. On the
other hand, according to Blainey, a clear preponderance of power is the surest guarantor of peace .

James Fearon has further developed this line of thinking in what has become the dominant theoretical paradigm for understanding
international conflict in contemporary international relations theory: the bargaining model of war.19 Fearon conceives of war, and much of
international politics, as a bargaining problem. Two states have a significant disagreement over some issue (whether it be territory, policy, or
something else), but fighting a war over the dispute is suboptimal, because wars are costly and states would be destroying some of what they
are fighting over. It would be much better to simply come to a negotiated settlement and avoid the costs of conflict. War, therefore, according
to Fearon, should be understood as a breakdown in bargaining. He argues that among rational states there are three causes of bargaining
failure: private information and incentives to misrepresent that information, issue indivisibility, and problems of credible commitment.

The first cause, private information and incentives to misrepresent, is most relevant to the question of strategic stability. Fearon maintains that
if the balance of military power and the balance of resolve were perfectly known, then war would
never occur . States would assess the likely outcome of conflict based on which side was stronger and which side cared more about the
issue at stake. Then they would cut an appropriate deal that reflected the bargaining power of the two sides as determined by the underlying
balances of power and resolve. Rather
than fight a costly war in what was bound to be a losing effort, the weaker
state would simply concede the contested issue. It would be better off with this bargain than it would be to fight and lose a
war only to arrive at a similar outcome. According to this perspective, therefore, in a world with perfect information and rational states, war
would never occur. The problem is that states do not have perfect information about the power and resolve
of their adversaries, and this can lead to bargaining failure . As Blainey argued decades before, wars result from
disagreements about which side will win.

Even the imperfect information problem could be resolved in theory, according to Fearon, because states
could simply reveal
information about their power (p.133) and resolve in order to clear up any misperceptions . The problem with
this solution, however, is that both sides have an incentive to misrepresent their power and resolve . In order to get
the best possible bargain short of war, states have an incentive to portray themselves as more powerful and more
willing to fight over the contested issues than they actually are. How many times have leaders promised that “all options are on the table”
when they really had no intention of ever using force? This prevents states from accurately revealing true information about their power and
resolve and obstructs peaceful resolutions to conflicts. Since all states have an incentive to say they are willing and able to fight if necessary to
get their way, their opponents have no way of knowing who is sincere and who is bluffing. So, if a state assumes wrongly that its opponent is
bluffing, then bargaining can break down and war can occur even among “rational” states. In sum, according to Fearon, private
information about the balance of power and the balance of resolve and incentives to misrepresent that
information are a cause of war.

When are states most likely to make mistakes about the balance of power (our focus in this chapter)? Holding other factors constant, war is
most likely when there is military parity . When there is a rough balance of power, the outcome of
conflict is less certain and bargaining failure more likely . When, on the other hand, there is a clear
preponderance of power , the outcome of conflict can be predicted with greater confidence. The more
lopsided the balance of power, the less likely states are to misperceive it , and the more likely they will
be to reach a bargain short of military conflict .

This theoretical logic has also been supported in recent empirical research . Scholars have consistently shown a tight
correlation between rough parity in the balance of power and the frequency of militarized interstate disputes. Contrariwise, imbalances

of power are associated with peace .20 As Douglas Gibler writes in a recent issue of the American Political Science Review,
“study after study finds that equally-capable states experience higher rates of conflict .”21

Bringing this discussion back to the question of strategic stability, therefore, contemporary international relations theory suggests that a
lopsided nuclear superiority should enhance strategic stability and nuclear parity should be
destabilizing . Would China’s leaders be more likely to believe that they could prevail in a nuclear conflict
with Washington if Beijing possessed 2,000 nuclear weapons capable of reaching the United States, rather than the 65 or
so it possesses today? Intuition would suggest that they would , but this is diametrically opposed to the arguments of
strategic stability theorists. This suggests either that traditional arguments about strategic stability are mistaken, or that nuclear
conflict operates according to its own special logic. It has been argued, for example, the high cost of nuclear war convinces leaders facing a
nuclear-armed opponent that they have no shot of winning at an acceptable cost, thus eliminating (p.134) uncertainty about the balance of
power. This is plausible, but it is not the case made by strategic stability theorists. Rather, strategic
stability theorists argue the exact
opposite. They claim
that nuclear-armed states may intentionally choose to start nuclear wars with nuclear-
armed states when there is an imbalance of nuclear power . As we will see in the next section, this argument does
not hold up under interrogation , even in a nuclear specific context.

Why Strategic Instability Is Not a Cost of US Nuclear Superiority

This section will reevaluate the traditional notions of nuclear strategic stability and show that the logic of these arguments is quite weak and
rests on many questionable assumptions. Moreover, a more careful consideration suggests that, if anything, US
nuclear superiority
enhances instability that works in Washington’s favor and diminishes problematic instability . In sum,
therefore, strategic instability is not a cost of US strategic superiority.

In theory, there
are two possible pathways by which US nuclear superiority could increase the risk of
nuclear war: either a nuclear superior United States may strike first , or a nuclear inferior US adversary
may have an incentive to initially pull the nuclear trigger . We explore each of these possibilities in turn.
A Nuclear Superior United States Strikes First

Strategic stability theorists argue that a US first-strike advantage is destabilizing, but this section shows that, in fact, a US first-strike
advantage is just that: an advantage .
Typically, strategic stability theorists argue that a US nuclear advantage is destabilizing because it could entice an enemy to strike first. I will
cover this argument later in the chapter. Logically, however, the first reason that nuclear superiority might increase the risk of nuclear war is
that the side with nuclear superiority (in this case the United States) might initiate a nuclear war because its leaders assess that they could
initiate a “splendid” first strike.22 In other words, they may believe that they could conduct a nuclear attack that would succeed in disarming an
adversary, allowing them to fight and win a nuclear war while avoiding retaliation altogether, or suffering only acceptable levels of damage in
return.

The strategic stability paradigm assumes that first-strike advantages are destabilizing regardless of which side
possesses it, but from Washington’s point of view , there is a clear difference between a US ability to
conduct a first strike and (p.135) an adversary’s ability to conduct a first strike on the United States. Namely,
the latter is much more threatening .

It is obvious that a
US nuclear posture that renders the United States vulnerable to an enemy first strike
would be dangerous for the United States . That position of extreme weakness could invite an enemy
nuclear attack on the United States and its allies, or render them vulnerable to nuclear coercion . Fortunately, as the first
state to develop nuclear weapons, the United States has never faced this situation, and, if it did, it would be motivated to take whatever steps
necessary to expand and strengthen its nuclear forces in order to deter potential enemy nuclear attacks. On this point, therefore, strategic
stability theorists and I agree: an extreme imbalance of power (in favor of US enemies) is problematic (for the United States).

Let us then consider the possibility of a US first strike. The United States currently possesses a splendid first-strike
advantage against roughly 190 states. This list includes all of the nonnuclear weapon states in the international system and the
three nuclear-armed states (Israel, Pakistan, and India) whose nuclear delivery systems currently prevent them from launching a nuclear attack
against the US homeland. (Of course, it is nearly impossible to imagine the United States conducting a nuclear attack on any of these countries,
but it does have the capability.) At present, the
United States can conduct, or threaten to conduct, a nuclear attack against
these countries without worrying about the possibility of nuclear retaliation against US territory. As we
saw in the first part of the book, this
nuclear superiority provides a significant source of strategic advantage .
Would the United States be more secure if it possessed a more “stable” nuclear deterrence relationship
with North Korea, Venezuela, Iran, or other states ? Would the United States be better off if Iran had a reliable means of
holding US cities hostage with nuclear threats? It is hard to answer this question in the affirmative. The United States would be worse off in
such a scenario. The United States would have less leverage over these states and be vulnerable to nuclear coercion and even nuclear attack.
For decades, therefore, there has been a bipartisan consensus that the United States must work to stop the spread of nuclear weapons to
additional states.

Some scholars, known as proliferation optimists, challenge these views, but as I have argued at length elsewhere, they work from an
unsophisticated understanding of deterrence theory and their arguments contain internal, logical contradictions.23 Moreover, their arguments
have never found favor in the corridors of power.24

To be sure, US superiority may tempt Washington to use nuclear weapons first, undermining stability as defined in this chapter. Indeed, the
United States was the only country to use nuclear weapons in wartime, against a nonnuclear (p.136) Japan in World War II. For this reason, a US
first strike advantage likely does increase the risk of US nuclear use, but this is not a problem for the United States. After all, the United States
won a world war with the help of its nuclear superiority over Japan. Instability due to the possibility of US first use is, therefore, instability that
is desirable from Washington’s perspective. It is good instability. It certainly is not a reason for Washington to refrain from pursuing military
nuclear advantages. //

The same is true when considering America’s relations with established nuclear powers, such as Russia and China .
With a large margin of superiority over these rivals, Washington might be tempted to launch a splendid first strike. This would certainly be
“destabilizing” in the sense that it would increase the risk of nuclear war, but, again, this is a nuclear war of the United States’ choosing. The
purpose of US national security policymaking is often, and should be, to provide the president with a range of
options. While any US president should be extremely cautious about employing nuclear weapons, there
are conceivable scenarios in which a US president might want the ability to conduct a nuclear first
strike . Indeed, the 2010 US Nuclear Posture Review explicitly states that the United States reserves the right to use
nuclear weapons against nuclear weapon states and against nonnuclear weapon states in
noncompliance with their nonproliferation obligations .25 In the event that these states engage i n
major conventional aggression , or a c hemical or b iological w eapons attack against the United States or its
allies, for example, a US president might decide to use nuclear weapons first . Moreover, even if the president
never chooses to conduct a nuclear first strike, the ability to credibly do so is necessary in order to deter
adversaries and reassure allies . Although the United States does not possess a splendid first strike capability over Russia and China,
such a capability would very much be in the US national interest.

A possible objection may be that a US nuclear attack on a nuclear power would be dangerous because it might not fully succeed in disarming its
opponent. Since Russia and China have delivery vehicles capable of reaching the United States, any US nuclear first strike that failed to destroy
every single Russian or Chinese warhead could result in nuclear retaliation against the US homeland.

This is an important consideration and the primary reason why any

US president would be extremely hesitant to conduct
a nuclear first strike against a nuclear-armed country . Indeed, it is nearly impossible to imagine a US
president launching a nuclear first strike on Russia or China . But, if in an extreme scenario, a US president still chose to
launch a nuclear attack knowing full well the likely consequences, this would be a deliberate choice because he or she believes the attack is in
America’s interests and that the alternatives are even worse. Furthermore, and as demonstrated throughout this book, the ability to
credibly do so , even if the option is never employed, enhances Washington’s bargaining leverage in
scenarios short of war.

(p.137) The fear of possible retaliation following a US nuclear first strike , therefore, is not a good reason why
the United States should not maintain a nuclear advantage over rivals . Indeed, the principal fear in this
scenario is that a disarming strike might not work . The concern, therefore, is one of insufficient US superiority, not too much.
In sum, a nuclear balance of power that provides the United States with a first-strike capability may very well be destabilizing, but it is instability
in America’s favor and, therefore, not a good reason why Washington should not pursue the capability.

A Nuclear Inferior Adversary Strikes First

The second, and more common, argument as to why nuclear superiority might be destabilizing is because the
state in the position of nuclear inferiority (in this case, America’s adversaries) may feel “ use ’em or lose ’em” (UELE)
pressures, but this argument also withers under interrogation.26

According to strategic stability theorists , a US nuclear advantage increases the danger of nuclear war because the inferior
opponent may fear that its nuclear arsenal is vulnerable to a first strike. Rather, than wait for the adversary (in this case the United States) to
move first and wipe out, or seriously blunt, its strategic forces, the argument goes, the
inferior state may decide to
intentionally launch a nuclear war early in a crisis in order to avoid suffering a disarming first strike . This
is the logic most often invoked by strategic stability theorists when they claim that US nuclear
advantages are destabilizing. This is also the precise problem identified and inspired by Wohlstetter’s basing studies.

Use ’em or lose ’em enjoys a certain superficial plausibility, but, upon closer inspection, there are two fundamental reasons why the logic
simply does not hold up . First, it ignores the fact that the superior state retains a healthy ability to
retaliate . So, even if the inferior state is worried about having its nuclear weapons eliminated in a first
strike, the decision to launch its nuclear weapons first as a coping mechanism would be a decision to
intentionally launch a nuclear war against a state with at least a secure, second-strike capability . This
means that even if the inferior state launches its nuclear weapons first, it will be virtually guaranteed to suffer
devastating nuclear retaliation . Moreover, given that it is in a situation of extreme inferiority (so extreme that it
might even be vulnerable to a preemptive nuclear strike), this would mean intentionally launching a devastating nuclear
war that will likely turn out much worse for itself then for its opponent . It would simply be irrational for a state to
intentionally launch a nuclear war against a state with an assured retaliatory capability.

Let us consider a concrete example. The United States maintains nuclear superiority over China , as we have seen in
previous chapters. Strategic stability (p.138) theorists want us to believe that if the United States takes additional steps to
further enhance its superiority, then China would face even greater temptations to launch a nuclear first strike

against the US homeland in the event of a serious crisis. In other words, strategic stability theorists hold that China would
be so worried about losing a devastating nuclear war against United States that it would intentionally
choose to start a devastating nuclear war against the United States . The argument does not make
sense .
But academic deterrence theorists and other critics of American nuclear strategy try to have it both ways. They attempt to argue that a second-
strike capability is sufficient to deter any nuclear-armed state from launching a nuclear attack. Therefore, they advocate that the United States
need not build a nuclear force that goes beyond this requirement because a second-strike capability is more than enough. But, then they warn
that if Washington strengthens its nuclear forces too much, other countries will be tempted to launch a nuclear attack against a United States
armed with a second-strike capability. So, which is it? Does a second-strike capability reliably deter intentional nuclear attack, or not? If not,
then they cannot maintain that a second-strike capability is more than enough for deterrence. If so, they cannot claim that a second-strike
capability-plus will provoke a nuclear attack.
Some readers may retort that my argument also attempts to have it both ways too, but they would be mistaken. As the attentive reader will recall, this book has consistently argued that a second-strike capability is sufficient to
deter an intentional nuclear attack and that nuclear superiority contributes to a state’s national security goals in other ways: limiting the damage of nuclear war, deterring lower-level disputes, and enhancing bargaining leverage in
high-stakes crises. In sum, the argument of this book is internally consistent, but the claims of strategic stability theorists contain a logical contradiction.

Furthermore, UELE arguments are unpersuasive for a second reason. These arguments overlook the fact that the inferior state has a more attractive option at each stage of the crisis: backing down and living to fight another day. A
state in a position of inferiority involved in a high-stakes crisis always has a choice between three options: (1) intentionally launching a nuclear first strike in a devastating nuclear war that it will almost certainly lose; (2) playing
brinkmanship, escalating the crisis, and raising the risk of nuclear war in a contest that it is also likely to lose; or (3) simply de-escalating the crisis and avoiding any further danger. Faced with this menu, option 1 is by far the least
attractive, but this is precisely the option we must believe leaders will purposely choose in order for the UELE logic to hold. This is untenable. Indeed, much of nuclear deterrence theory and strategy as it has developed over the
past 70 years is based on the premise that option 1 is simply unacceptable. Contrary to the claims of strategic stability theorists, therefore, UELE does not pose a problem to strategic stability.

(p.139) To be sure, if a nuclear war were preordained to occur with 100% certainty, then an inferior state might have good reason to go first, but the risk of nuclear war is never certain. Indeed, the risk of nuclear war is in the
control of both states. To avoid any risk of nuclear conflict, all they must do is capitulate. While an unattractive option, it is more desirable than intentionally launching a devastating nuclear war that it is bound to lose. Indeed, even
the highly stylized game theoretic model in chapter 1, which relies on a spontaneous risk of nuclear war, assumes that states can avoid any further risk of catastrophe by submitting at any stage of the crisis.

There are five possible counterarguments to these claims, but none of them are persuasive. First, one could argue that the above case against strategic stability theory rests on states making rational calculations, but the leadership
of future US adversaries might not be fully rational. Kim Jong Un in North Korea, for example, may be irrational or extremely risk acceptant and may be willing to run great risks of, or even to intentionally fight, a nuclear war. This is
possible. But, if this is the case, then, we should not expect strategic stability through mutual vulnerability and nuclear parity to discourage him from starting a nuclear war either. Surely, the subtleties of strategic stability theory
would be lost on a lunatic. Moreover, even madmen and excessive risk takers have some understanding of power. If anything, a future reckless leader should be even more willing to launch a catastrophic nuclear war from a
position of parity (i.e., a situation of so-called strategic stability), than from a position of inferiority.
Second, one might counter that states will refrain from UELE in most circumstances, but in truly dire straits, when their backs are against the wall and they have nothing left to lose, then we cannot rule out the possibility of inferior
states lashing out with nuclear strikes. For example, they might claim, a state on the verge of being overrun in a conventional invasion might use nuclear weapons rather than lose everything.27 Some analysts believe that Russia or
North Korea, for example, may conduct limited nuclear “de-escalation” strikes rather than lose a conventional war against the United States.28 This is a compelling argument, but note that this is not an argument about UELE, or
about the nuclear balance of power. Rather, this is an argument about the dangers of putting an opponent’s back against the wall in international politics. This is a cardinal rule of diplomacy, but it is not a reason to avoid military
nuclear advantages. Indeed, if anything (and as above), a country in a dire position would likely be even more tempted to gamble for resurrection through nuclear use from a position of parity, rather than from a position of severe
inferiority. Once again, the idea that US nuclear superiority somehow increases the risk of nuclear war against the United States does not add up.

Third, and related, my colleagues have argued that it is possible that a US adversary might pursue a limited nuclear war strategy with a vulnerable nuclear (p.140) force. Rather than lose the opportunity to “escalate to de-escalate,”
therefore, the state may conduct a limited nuclear strike early in a crisis to shock the United States into suing for peace, before the United States succeeds in wiping out its nuclear forces. This would be a true UELE situation, they
maintain, because the enemy is incentivized to escalate early precisely in order avoid losing the option. This argument, however, solves one logical contradiction only to create another. Theories of limited nuclear war do not
maintain that limited nuclear strikes are decisive in and of themselves. Rather, they have coercive power because they signal the threat of more devastation to come. It is one of the highest rungs on brinkmanship’s escalation
ladder. If a state is vulnerable to a first strike, however, then it cannot credibly threaten that there is more devastation to come. The United States would have little incentive to sue for peace in response to a limited strike from
such a state. It could simply retaliate (with the full moral and legal authority that would follow victimization in a nuclear attack) and disarm the enemy’s remaining nuclear forces. Again, this state would be better off simply backing
down than inviting the disarming nuclear strike it was trying to ward off. If, on the other hand, the state has a survivable force, then it would not have needed to escalate early for fear of UELE in the first place.

The only possible exception to this logic would be for a state with a vulnerable force, following a limited nuclear war strategy, that believes that Washington’s stake in the crisis is so insignificant, that the United States would prefer
to back down after suffering a limited strike, rather than follow through with a disarming retaliatory strike of its own. This would be one rational pathway to nuclear escalation due to UELE, but it is a bit of a stretch. A number of
unusual conditions must be necessary to make this scenario possible. It is certainly not the broad class of instability problems often portrayed by strategic stability theorists. Moreover, it is a problem that can be addressed. In these
cases, Washington can simply take additional steps to demonstrate its stake in these scenarios and to disabuse adversaries of the notion that Washington would simply buckle after a limited nuclear attack from a state with a
vulnerable nuclear force.

Fourth, one Washington DC-based colleague has argued that the theory of this book itself provides a reason for superiority to undermine stability. He argued that a state in an inferior position may conduct a massive counterforce
nuclear strike on the United States in order to vault itself into the superior position and then use its newfound superiority to deter US retaliation. This is certainly an interesting idea. But it would again require us to believe that the
state would intentionally launch a massive nuclear war against a state with a second-strike capability. This is a notion that is contrary to every major theory of nuclear deterrence, including strategic stability theory itself. In addition,
this argument would have to maintain that this hard-to-fathom scenario would be more likely if the United States enjoys superiority. But, if anything, an enemy attempt to (p.141) conduct a nuclear first strike and then “deter our
deterrent” should be more attractive to an enemy in a position of parity than one in an inferior position.29

Fifth, and finally, some might object that UELE does not cause leaders to intentionally launch nuclear war, but rather, in a bid to ensure the survivability of their arsenals, they might be forced to take steps to ensure, should the
need arise, that they can use them before they are wiped out. They might be tempted, therefore, to adopt launch on warning nuclear postures, put their nuclear forces on hair-trigger alerts in a crisis, or delegate nuclear launch
authority to low-level commanders. While these steps might be logical to ensure the survivability of the force, they also might make it harder for national leadership to control exactly when and how nuclear weapons are used and,
therefore, increase the risk of accidental or inadvertent nuclear exchange. In other words, this line of argument essentially holds that inferior states will be more willing to run risks of nuclear war in serious crises.

Note, however, that this logic runs exactly counter to the expectation of the superiority-brinkmanship synthesis theory. The central argument of this book maintains that inferior states will be much more cautious in games of
brinkmanship. Theoretically, the argument of this book demonstrates that there is good reason why inferior states should be less willing to run nuclear risks—because they will suffer disproportionality should things escalate. Which
perspective is correct? To some degree, this is a debate that cannot be definitively settled in the empirical realm. We therefore finish this chapter with a consideration of the empirical record.

Strategic Stability: The Evidence

If the UELE argument from strategic stability theory is correct, then we should expect that nuclear inferior
states will intentionally launch nuclear wars against states with superior nuclear arsenals . We should also
expect that inferior states will engage in risky behavior in high-stakes crises to ensure that their nuclear
weapons can be launched before they are destroyed . If, on the other hand, the argument of this book is correct,
then we should expect that nuclear inferior states should never intentionally launch nuclear wars and
they should be hesitant to run risks of nuclear war against nuclear superior adversaries.

Turning back to the empirical record reviewed in the first half of the book, we see that nuclear inferior states
have frequently backed down in high-stakes crises with nuclear superior opponents . Nuclear inferior
states have placed forces on alert in crises and have otherwise run risks of nuclear war , but they have
been less , not more, likely to do so than their superior opponents . Nuclear inferior states have never
issued a compellent threat against a nuclear superior opponent . (p.142) And nuclear inferior states have
never intentionally launched a nuclear war against a superior opponent due to UELE fears or for any other reason.
It is certainly possible that some future leader may intentionally launch nuclear weapons in order to avoid the risk that they will be destroyed in
a nuclear attack. But logic and over 70 years of evidence give us strong reason to be skeptical that this is a
likely outcome.
Conclusion

This chapter examined the effect of the nuclear balance of power on strategic stability. Specifically, it examined past arguments about how US
nuclear superiority might undermine strategic stability and increase the risk of nuclear war. By reviewing international relations theories on the
causes of war, examining the specific logic of strategic stability theory, and considering the available evidence, this
chapter did not find
any support for the idea that imbalances in nuclear power cause dangerous strategic instability . In fact, if
a preponderance of power reduces the risk of war . Moreover, this chapter
anything, theory and evidence suggested that
showed that US nuclear superiority increases instability that works in Washington’s favor and dampens problematic
instability.
As it relates to US nuclear strategy, therefore, this chapter suggests that nuclear
strategic stability is not a downside to the
maintenance of a robust nuclear posture . These findings, therefore, provide further support for the logic of
American nuclear strategy.
 2nc Prevents Miscalc

Credible U.S. nuclear deterrence substantially reduces the risk of miscalculation –

essential to prevent nuclear conflicts around the globe
Spulak, 99 - Senior Analyst at the Strategic Studies Center (Robert, Weapons of Mass Destruction:
Opposing Viewpoints, p. 53-4)

The need for nuclear deterrence will not disappear. There are still powerful nations in the world which are potential
adversaries, both immediate and future. The interests of these other nations will, at times, be in conflict with the interests of
the United States. It is inevitable that another great power or a coalition of powers will  arise to oppose the
hegemony of the United States. Although the Cold War is over, Russia still has the capability to destroy the
United States; the strong showing of the nationalists and communists in the Russian elections, the obvious failure of reforms, the desire
of Russia to be recognized as a great power, and replacement of the reformers in the Russian government with officials from the communist era
have refocused our concerns on this point. In a few years Japan, a Western European state, or China could pose a strategic
threat to our broad security interests; China is rapidly modernizing its arsenal and could soon be a strategic nuclear threat. Since
we will be cautious about attacking any nuclear power with conventional forces, it will be difficult to deter even smaller
nuclear powers such as North Korea, Iran, or Iraq if our nuclear threat to them is not  credible. Credibility
is important for deterrence because the conditions under which the United States would actually use
nuclear weapons, and therefore the conditions under which nuclear deterrence even exists, depend on limitations we place
on ourselves. Credibility has been one of the most important aspects of nuclear policy from
the beginning. For example, the lack of credibility of the U.S. policy of massive retaliation led to the more limited U.S. doctrines that
were then developed. The development of warfighting capabilities as a contribution to deterrence was based on the need to demonstrate
that there was a likelihood that nuclear weapons would actually be used. Minimizing
and stigmatizing our nuclear weapons
can create a self-imposed taboo with respect to even nuclear adversaries, thereby  delegitimizing
deterrence and inviting threats to our interests. This self-injury to our nuclear deterrence is not the delegitimization of all
nuclear weapons that the proponents of nuclear stigma hope for. It is neither reciprocal with our potential enemies nor permanent, even for
ourselves. Credible nuclear deterrence is robust, not delicate. Policies and actions that establish credibility couple with our nuclear arsenal to
create the possibility that in a war with the United States an enemy may face a risk of annihilation. A
potential enemy need not
even be very rational to be deterred from actions that  ensure his own destruction. (This is not to argue for
belligerence; we can keep the threshold for nuclear use high without undermining credibility.) This creates extreme caution in the
behavior of other states if they wish to threaten vital U.S. security interests, and it  substantially
reduces the likelihood of miscalculation.

Deterrence empirically prevents miscalculation and great power wars – checks rogue
aggression
Tepperman, 09 (9/7/09, Jonathon, Newsweek, “Why Obama Should Learn to Love the Bomb,”
http://www.newsweek.com/id/214248, JMP)

Why indeed? The iron logic of deterrence and mutually assured destruction is so compelling, it's led to
what's known as the nuclear peace: the virtually unprecedented stretch since the end of World War II in
which all the world's major powers have avoided coming to blows. They did fight proxy wars, ranging
from Korea to Vietnam to Angola to Latin America. But these never matched the furious destruction of
full-on, great-power war (World War II alone was responsible for some 50 million to 70 million deaths).
And since the end of the Cold War, such bloodshed has declined precipitously. Meanwhile, the nuclear
powers have scrupulously avoided direct combat, and there's very good reason to think they always will.
There have been some near misses, but a close look at these cases is fundamentally reassuring—
because in each instance, very different leaders all came to the same safe conclusion.

Take the mother of all nuclear standoffs: the Cuban missile crisis. For 13 days in October 1962, the
United States and the Soviet Union each threatened the other with destruction. But both countries soon
stepped back from the brink when they recognized that a war would have meant curtains for everyone.
As important as the fact that they did is the reason why: Soviet leader Nikita Khrushchev's aide Fyodor
Burlatsky said later on, "It is impossible to win a nuclear war, and both sides realized that, maybe for the
first time."

The record since then shows the same pattern repeating: nuclear-armed enemies slide toward war, then
pull back, always for the same reasons. The best recent example is India and Pakistan, which fought
three bloody wars after independence before acquiring their own nukes in 1998. Getting their hands on
weapons of mass destruction didn't do anything to lessen their animosity. But it did dramatically mellow
their behavior. Since acquiring atomic weapons, the two sides have never fought another war, despite
severe provocations (like Pakistani-based terrorist attacks on India in 2001 and 2008). They have
skirmished once. But during that flare-up, in Kashmir in 1999, both countries were careful to keep the
fighting limited and to avoid threatening the other's vital interests. Sumit Ganguly, an Indiana University
professor and coauthor of the forthcoming India, Pakistan, and the Bomb, has found that on both sides,
officials' thinking was strikingly similar to that of the Russians and Americans in 1962. The prospect of
war brought Delhi and Islamabad face to face with a nuclear holocaust, and leaders in each country did
what they had to do to avoid it.

Nuclear pessimists—and there are many—insist that even if this pattern has held in the past, it's crazy to
rely on it in the future, for several reasons. The first is that today's nuclear wannabes are so completely
unhinged, you'd be mad to trust them with a bomb. Take the sybaritic Kim Jong Il, who's never missed a
chance to demonstrate his battiness, or Mahmoud Ahmadinejad, who has denied the Holocaust and
promised the destruction of Israel, and who, according to some respected Middle East scholars, runs a
messianic martyrdom cult that would welcome nuclear obliteration. These regimes are the ultimate
rogues, the thinking goes—and there's no deterring rogues.

But are Kim and Ahmadinejad really scarier and crazier than were Stalin and Mao? It might look that way
from Seoul or Tel Aviv, but history says otherwise. Khrushchev, remember, threatened to "bury" the
United States, and in 1957, Mao blithely declared that a nuclear war with America wouldn't be so bad
because even "if half of mankind died … the whole world would become socialist." Pyongyang and
Tehran support terrorism—but so did Moscow and Beijing. And as for seeming suicidal, Michael Desch
of the University of Notre Dame points out that Stalin and Mao are the real record holders here: both
were responsible for the deaths of some 20 million of their own citizens.

Yet when push came to shove, their regimes balked at nuclear suicide, and so would today's
international bogeymen. For all of Ahmadinejad's antics, his power is limited, and the clerical regime has
always proved rational and pragmatic when its life is on the line. Revolutionary Iran has never started a
war, has done deals with both Washington and Jerusalem, and sued for peace in its war with Iraq (which
Saddam started) once it realized it couldn't win. North Korea, meanwhile, is a tiny, impoverished, family-
run country with a history of being invaded; its overwhelming preoccupation is survival, and every time
it becomes more belligerent it reverses itself a few months later (witness last week, when Pyongyang
told Seoul and Washington it was ready to return to the bargaining table). These countries may be
brutally oppressive, but nothing in their behavior suggests they have a death wish.
 AT: Conventional Deterrence

Allies and adversaries perceive the unique value of nuclear weapons

Payne, 09 – professor in the Graduate Department of Defense and Strategic Studies at Missouri State
University and president of the National Institute for Public Policy (Spring, Dr. Keith B., Strategic Studies
Quarterly, “On Nuclear Deterrence and Assurance,”
http://www.au.af.mil/au/ssq/2009/Spring/payne.pdf, JMP)

The Nuclear Disarmament Vision

Throughout the Cold War and post–Cold War years, various groups and individuals have put forth
initiatives for the long-term elimination of nuclear weapons or their near-term reduction to small
numbers. With the end of the Cold War, many thoughtful people understandably question why the
United States should continue to maintain nuclear weapons, particularly if most plausible adversaries
can be defeated militarily with conventional forces alone. The point here is that, on some occasions,
deterrence and assurance will be the priority goals. Numerous countries— including contemporary
opponents and allies—give every indication that they perceive unique value in nuclear weapons for
those purposes, whether or not US domestic commentators believe it or want it to be true. Those
perceptions alone create the potential value of nuclear weapons for deterring opponents and assuring
allies.

Shift to conventional deterrence increases the risk of nuclear war by blurring the
firebreak with nuclear weapons
Krepinevich & Kosiak, 98 --- Executive Director and Director of Budget Studies at the Center for
Strategic and Budgetary Assessments (Andrew Krepinevich and Steven Kosiak, Winter 1998/99, “The
Military Revolution And The Case For Deep Cuts In Nuclear Forces,”
http://www.csbaonline.org/4Publications/PubLibrary/A.19981100.The_Military_Revol/A.19981100.The
_Military_Revol.php, JMP)

In the absence of a “sanctuary” regime, there is a danger that transitioning to a highly effective
nonnuclear strategic strike capability could actually make nuclear war more likely, by blurring the
distinction, or “firebreak,” between nonnuclear and nuclear capabilities. In other words, there is a
danger that the United States will feel freer than it has in the past to conduct strategic strikes —
because it will be able to do so without resorting to nuclear weapons. However, the country on the
receiving end may not view such a distinction as particularly meaningful and may well feel compelled to
retaliate with nuclear weapons.
 AT: Deterrence Fails

Nuclear deterrence moderates the behavior of great powers and prevents conflicts ---
our argument is backed by decades of support
Miller, 09 – senior counselor at The Cohen Group since March and former special assistant to
President George W. Bush and as senior director for defense policy and arms control on the National
Security Council staff (Frank, Abolishing Nuclear Weapons: A Debate, “Disarmament and Deterrence: A
Practitioner’s View,” ed. by George Perkovich and James M. Acton,
http://www.carnegieendowment.org/files/abolishing_nuclear_weapons_debate.pdf, JMP)
A Rationale for Abolition?

At the outset, the authors indicate that the primary reason for abolishing the nuclear weapon stockpiles of the five nuclear-weapon states and
the other nuclear-armed powers is halting nuclear proliferation. “[T]he problem [is] of states resisting strengthened non-proliferation rules
because they say they are frustrated by the nuclear-weapons states’ refusal to uphold their side of the NPT bargain .…”1 While it is true that
such protests are often made by the professional rhetoricians (many times without their capitals’ knowledge, by the way) in the Conference on
Disarmament and in Non-Proliferation Treaty Review Conferences, a dispassionate look at the facts suggests that the nuclear-weapon states
are indeed fulfilling their NPT commitments. First, even using as a baseline the number of nuclear weapons that existed at the time the NPT
entered into force (let alone the size of the U.S. and Soviet arsenals at the height of the Cold War), the nuclear-weapon states have been
steadily reducing their nuclear forces and stockpiles. The U.S. nuclear arsenal today, for example, is 90 percent smaller than it was in 1972, and,
it will be reduced by an additional 15 to 30 percent (relative to its current size) by 2012. Second, “the nuclear arms race,” whose end is called
for by Article VI of the NPT, was, for all intents and purposes, halted in the late 1980s. While all this was occurring, two new nuclear nations
emerged (India and Pakistan), North Korea repudiated its treaty obligations and developed and detonated a weapon, Iran is on the brink of
developing a weapon, and two other emerging nuclear weapon programs (Iraq and Libya) were terminated by superior force and skillful
diplomacy. Additionally, the actions of regimes motivated by deterring U.S. conventional military forces has nothing at all to do with the U.S.
nuclear arsenal. Nor do the actions of states such as Pakistan, which are motivated by regional considerations. Finally, it is important to note
that rogue states and would-be nuclear terrorists seek to disrupt international stability; their desire for nuclear weapons derives directly from
their own nefarious agendas and are detached completely from any reductions in the arsenals of the nuclear-weapon states. (Indeed, there is a
case to be made that these states’ nuclear capabilities would serve to deter rogues and terrorists from using nuclear weapons should they
actually obtain them.) It is not immediately evident therefore that proliferation is linked to the existing arsenals of the five nuclear-weapon
states or to the fact that four of the five continue to move toward fulfilling their NPT obligations. In fact, the
history of the past few
decades seems to indicate that hard-core proliferators pursue nuclear-weapon programs independent
of other states’ reductions in their arsenals. Thus the prima facie case for abolition remains to be made.
How and in what way would the elimination of all nuclear weapons by the five states make the world a
safer place?
Nuclear Weapons Have Moderated Great Power Interactions

Answering that question clearly and unequivocably must be a sine qua non for the nuclear abolition movement. In this regard, however, the
authors note in passing that the argument that “prohibit[ing] nuclear weapons ‘make[s] the world safe’ for conventional war” … “is not a fair
demand. It is motivated by the assumption that nuclear weapons would never fail to deter major conventional war, and it neglects the
consequences if deterrence fails and nuclear weapons are detonated.” Deterring conventional aggression, however, is and has
always been akey rationale for the existence of nuclear weapons. Since the inception of the U.S. nuclear
arsenal, its primary goal has been to deter enemy attack on U.S vital interests or those of its allies. Put
more starkly, the U.S. nuclear arsenal was developed to prevent a conventional third World War from
occurring on the plains of Europe. NATO’s role was always to deter both conventional and nuclear attack. Noting that since nation
states emerged, the great powers of Europe regularly went to war with each other until 1945 (and that
even the enormous devastation caused by World War I was not sufficient to prevent World War II), one
must ask what changed the situation so that peace has prevailed since then? The nature of governments
has not changed; rather, the stakes of going to war became too great. No longer could an aggressor look to his
military’s genius to defeat the enemy quickly and decisively; nuclear weapons gave the attacked party the capability to turn an aggressor’s
victory into massive defeat. Thefact is that possession of nuclear weapons has moderated the behavior of the
great powers toward one another. This does not suggest that deterrence can never fail, or that if it did nuclear weapons would
not be used without horrendous consequence. But it does suggest that more attention needs to be paid to how the
great powers have acted since 1945 and why. The devastation in Europe during World War II is a stark
reminder that nuclear weapons are not the only cause of massive destruction and loss of life. If the authors
do not believe in nuclear deterrence as the way to avoid such devastation, they need to explain what would take its place.
 AT: Deterrence is Immoral

Deterrence is moral – more proportionate, more responsive, and more just than the
alternatives
Colby, 07 --- former staff member in the Office of the Director of National Intelligence and on the
Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass
Destruction (Summer 07, Elbridge, Orbis, “Restoring Deterrence,” ScienceDirect Database, JMP)
Deterrence is More Moral

One might ask: If deterrence is so effective at providing security, then why has there been a rush to abandon it in the wake of the Soviet Union's
collapse and 9/11? Shouldn’t such a successful policy have earned greater loyalty? The answer to these questions illuminates the serious
divisions among Americans about what the purpose of our foreign policy should be.

Deterrence was not a policy that won out in the Cold War because it was the most loved. It was, instead, the best of a menu of bad options.
Hard right anti-Communists thought deterrence weak, a concession of Soviet hegemony in Eastern Europe and a failure of Western will. They
called for the rollback of Communist suzerainty, even going so far as to advocate preventive strikes against the Soviet Union and China before
they were able to field nuclear weapons. The left, meanwhile, detested deterrence as an immoral use of terror as a
threat, a reliance on weapons whose very existence they decried. Believing that no state objective could justify the use of nuclear weapons,
the left advocated reducing our strategic forces, moving towards abolition , and a conciliatory policy towards the
Soviets. Since neither the right nor the left could win out—fortunately—deterrence arose as an option few liked but all responsible parties
could endorse.20

With the collapse of the Soviet threat, this agreement lost its raison d’être. Interventionists left and right broke free of the restrictive bonds a
deterrence and containment strategy had put in place. For hard-edged advocates for U.S. primacy, like Donald Rumsfeld or Dick Cheney, a
deterrence posture would prevent the United States from exercising regional hegemony in the Middle East or East Asia. For neoconservative
and liberal interventionists like Paul Wolfowitz, Tony Blair, or Michael Ignatieff, anxious to spread democracy, halt genocide and other
humanitarian crises, and “end tyranny in our world,”21 deterrence was too hesitant about such interventions. And for pacifist leftists—and
even a few old hawks—deterrence was a system of terror itself, one that could be discarded at the end of history. They, therefore, called for
abolishing nuclear weapons, the end of using threats for security, and internationalizing security responsibility. Deterrence was left with few
friends.

Its erstwhile friends should now consider returning. Contrary

to the arguments of the pacifist-inclined left, a strategy
of disarmament and conciliation is morally irresponsible in the face of Al Qaeda and its like. Despite what
the neo-conservatives and the liberal interventionists had hoped, the high moral rhetoric of liberating Iraq has yielded to a grimmer sense of
the moral duties of considering consequences, necessity, and proportion. We have relearned the truth of the critiques of revolutionary France
and of Woodrow Wilson—that even the honest pursuit of high-minded liberal aspirations can yield death and chaos. History has its own ways
and means and we should moderate our hope for its coming with a reverential fear of its wrath.

In between these two extremes, deterrence is a security policy that offers a way forward for the United States that is
not only more effective because more tailored, but is also more moral. It is more moral because a
deterrent posture would entail a strategy that is more proportionate, more necessary, more responsive,
and, ultimately, more just. Indeed, deterrence comports with the fundamental human intuition that it is
generally only moral to fight when attacked. In this it complies with the classical conception of just war,
which mandates that wars only be conducted when one's cause is just , waged by a legitimate authority, motivated by
a right intent, fought with a real prospect of success, conducted proportionately, and undertaken only as a last resort. Deterrence
satisfies these criteria. It is a defensive strategy that responds to invasions or attacks, and is therefore just; it sets out relatively clear
guidelines for when it mandates that the government fight, and, therefore, is governed by legitimate authority. It is driven by a desire to
protect, deter, and avenge, and is therefore motivated by right intent; its realistic red lines and threats are backed up by the awesome power of
the United States, and therefore likely to succeed; and it responds when attacked and asks from the rest of the international community only
respect for its marked out positions rather than revolutionary transformation, and is therefore proportional.22 Finally, by its nature it is
undertaken as a last resort rather than preventively.23 It was the fundamental moral attractiveness of this position that continually frustrated
both Soviet efforts to decouple Europe from the American nuclear umbrella during the Cold War and occasional American efforts to roll back
the Soviet empire.

But theorizingabout war and peace cannot remain at the level of abstraction. It must bear moral responsibility for
actual consequence and the power of contingency , as Max Weber pointed out.24 And deterrence, defense by
calculation, uniquely satisfies the moral requirement that leaders , whatever their benevolent intentions, are
basically responsible for the consequences that contingency produces from their actions. This it does by
grounding a nation's security on its own credible threats—not on either changing the world through force, as neo-conservatives advocate, nor
by hoping that a more peaceful world will emerge, as the left proposes . Both of these extremes ground security on
radical changes in the way the world operates, and, therefore, necessarily enmesh us in the rest of the world's affairs, thereby exponentially
expanding our vulnerability to all the permutations that chance and contingency may produce. Deterrence, rather, narrows our profile, and
thereby reduces our exposure to risk.

A deterrent posture follows John Quincy Adams’ adage that America should not go seeking monsters to destroy and the ancient dictum that a
moral act is a proportional one.25 Perhaps the greatest sin of the recent strategy is its disproportion, its confusion of the necessary with the
desirable. It may be desirable to “end tyranny” and distribute the blessings of liberty worldwide, but its desirability must be carefully balanced
against the costs of its enactment. If Iraq teaches us anything, it must be that a moral policy is not only one guided by the best of intentions, but
one that is realistic.

Nuclear weapons are more moral – prevents mass slaughter of innocents in

conventional conflicts
Joseph & Reichart, 98 – director and deputy director of the Center for Counterproliferation
Research at National Defense University and members of the National War College Faculty (Winter
1998, Robert G. Joseph and John F. Reichart, Orbis, “The Case for Nuclear Deterrence Today,” Science
Direct, JMP)

Looking back, one might even argue that those who condemned nuclear weapons as immoral were
simply wrong. The Western alliance’s nuclear weapons were in fact the moral weapon of choice. They
worked precisely as intended by deterring an immoral totalitarian state from attacking Western Europe
and undermining the peace, values, and freedom which the democracies cherished. Indeed, given the
tens of millions of innocent noncombatants killed in two world wars, one can argue that the possession
of nuclear weapons to deter yet another outbreak of mass slaughter by conventional weapons, either
in Europe or Asia, was squarely in the just war tradition.

The argument that the external environment has changed so much with the end of the Cold War that no
ethical or moral basis for nuclear arms remains is likewise unconvincing. American lives and interests
remain threatened. In fact, the proliferation of chemical and biological weapons have made the
likelihood of conflict and the prospect of the use of weapons of mass destruction even greater than in
the past in several key regions. But just as before, sound public and defense policy will emerge only from
a prudent calculation of risks and benefits, not from sweeping generalizations about the morality or
immorality of possession or use of nuclear weapons.

The “new eliminationists” who wrap themselves in the cloak of moral superiority and certainty should
be asked to address the consequences of disarming the great democracies in a world in which advanced
conventional, chemical, and biological weapons (and in some cases nuclear capabilities) continue to
spread among states explicitly hostile to democratic values.
History is on our side – nuclear deterrence has significantly reduced the number of
deaths in conflicts and prevented nuclear use
Murdock, 08 – senior adviser in the CSIS International Security Program who specializes in strategic
planning, defense policy, and national security affairs (March 08, Clark A., The Department of Defense
and the Nuclear Mission in the 21st Century: A Beyond Goldwater-Nichols Phase 4 Report,
http://csis.org/files/media/csis/pubs/080305-murdock-nuclearmission.pdf, JMP)

From a systemic perspective, nuclear deterrence suppressed the level of violence associated with
major power competition: wartime fatalities consumed 2 percent of the world’s population in the 1600s
and 1700s, about 1 percent in the 1800s, about 1.5 percent in World War I and 2.5 percent in World War
II, but about one-tenth during the Cold War (minus the Korean War, which pushed fatalities up to 0.5 percent). A leading
practitioner of the art of nuclear deterrence, Sir Michael Quinlan, aptly observed: “Better a world with
nuclear weapons but no major war, than one with major war but no nuclear weapons.” 17 Despite the
close calls and the now almost inexplicable buildup of nuclear weapons by the superpowers, the fact remains: nuclear
weapons kept the superpower competition from becoming a war.

The violence-suppressive effect of nuclear weapons has not gone away with the end of the Cold War.
Noted Cold War deterrent theorist and Nobel economics laureate Thomas Schelling told a recent World Economic Forum retreat (according to
Thomas Barnett, the Pentagon’s favorite futurist) that (1) no state that has developed nuclear weapons has ever been attacked by another state
and (2) no state armed with nuclear weapons has ever attacked another state similarly armed.18 With his characteristic flair, Barnett observes
that the United States and the Soviet Union learned that nuclear weapons are for having and not using. Due
to the equalizing
threats of mutually assured destruction, these devices cannot win wars but only prevent them.

The same logic has held—all these decades—for powers as diverse as the United Kingdom, France,
China, India, Pakistan and Israel, with North Korea stepping up to the plate and Iran on deck.

Thus we have survived the democratic bomb and the totalitarian bomb, as well as the capitalist bomb
and the communist bomb. In religious terms, we have survived the Christian and atheist bombs, the
Confucian and Hindu bombs and the Islamic and Jewish bombs. Somehow, despite all the
“irrationalities” ascribed to each new member, the logic of nuclear deterrence holds fast. 19
The proposition that nuclear weapons make the world “safe” for great power competition clearly belongs to the ranks of self-fulfilling
prophecies, since it depends on the credibility of each state’s nuclear deterrent. Moreover, while it doesn’t make this author sanguine about
the risks of further nuclear proliferation to states, regimes or individuals that are more difficult to deter, it seems to be the case that, to
date,
possession of a nuclear weapon has made the possessor, and its adversaries, much more cautious about
embarking on courses of action that could escalate to nuclear use.
Constitutional Amendment Counterplan
 1nc CP Constitutional Amendment

The United States should, through a constitutional amendment, prohibit the

imposition of the death penalty by the United States, or by any State, Territory, or
other jurisdiction within the United States.

Counterplan solves the case without forcing the court to rule

Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

[*1] INTRODUCTION

Much of the democratic world long ago abolished the death penalty as a matter of fundamental human
rights, including Canada, Mexico, South Africa, and all of Europe (except Belarus). 2 A majority of the
countries around the globe have done so. 3 One nation is noticeably absent from this list: the United
States.

While a handful of the states embrace the death penalty, many do not. Nineteen prohibit it by statute 4
or in their constitution, 5 with a gubernatorial moratorium in an additional three 6 and state court bans
in several others. 7 The number of death sentences decreased dramatically over the past two decades,
down to just 39 in 2017 [*2] compared with 295 in 1998. 8 Only eight states conducted executions in
2017. 9 Harris County, Texas, once the leading jurisdiction for capital punishment by a substantial
margin, 10 imposed no death sentences and engaged in no executions in 2017. 11

At the same time, the United States Supreme Court seems to similarly disfavor the death penalty, having
narrowed its scope over the past few decades. The Court even brought it to a halt briefly for a few years
in the mid-1970s. 12 But permanent abolishment is unlikely to occur there.

In a recent opportunity to end the death penalty, only Justices Breyer and Ginsburg would have done so.
13 They believe it is unconstitutional under the Eighth Amendment, which prohibits "cruel and unusual
punishments" 14 because of the "(1) serious unreliability, (2) arbitrariness in application, and (3)
unconscionably long delays." 15 Justice Breyer, authoring the dissent, proposed that "rather than try to
patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic
question: whether the death penalty violates the Constitution." 16

Justice Scalia countered in a scathing concurrence: "It is impossible to hold unconstitutional that which
the Constitution explicitly contemplates." 17 His successor appears to hold a similar view. 18 This makes
it doubtful that the present Court would reach the [*3] five votes necessary to find that the death
penalty violates the Eighth Amendment.

Yet, the Court regularly faces capital punishment cases, often siding for the criminal defendant. 19 As I
write this essay, the Court has taken up eight cases involving death penalty issues during the 2017-18
Term. 20
That the Constitution contemplates the death penalty does not, however, mean that it forever remains
constitutional. Indeed, the Framers deliberately designed the Constitution so that the document could
be revisited and adjusted over time. Thus, a constitutional amendment appears to be a more feasible
path to abolishing the death penalty, at least absent a dramatic change in the composition of the
Court.

This essay, written for the Duke Journal of Constitutional Law and Public Policy Symposium, An Even
More Perfect Union: Proposed Amendments to the Constitution, makes the case for a constitutional
amendment to abolish the death penalty and lays out possible routes to enactment. Part one of the
essay opens by recounting one Congress member's unsuccessful efforts at launching a death penalty
amendment. It then describes the present state of the law in the United States regarding capital
punishment, including recent data showing a significant decline in death sentences and executions
among the few states still engaging in the practice. Part two provides an overview of the process
established by Article V for amending the Constitution, and then evaluates the potential paths for a
successful death penalty abolition amendment.
 2nc Solvency

Constitutional amendment can be utilized to abolish the death penalty --- comparative
literature proves its predictable and it doesn’t require a constitutional convention be
convened
Knake, 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

II. A POTENTIAL ROADMAP FOR AMENDING THE CONSTITUTION

"The plan now to be formed will certainly be defective, as the Confederation has been found, on trial, to
be. Amendments therefore, will be necessary and it will be better to provide for them in an easy,
regular, and constitutional way, than to trust to chance and violence." 64

When may the Constitution be amended? Article V provides for two possible approaches.

First, an amendment may come from Congress, and estimates suggest that over 10,000 bills have been
introduced to do so. 65 A two-thirds majority vote is required from the House of Representatives and
the Senate alike. Congress does this via joint resolution, with no formal role for the President. The
amendment is then presented to the States for ratification by the legislature or by a state convention.
66 Congress may specify which route. Three-fourths (or thirty-eight) of the states must ratify an
amendment for it to become effective. Only twenty-seven amendments have made it through Congress
and state ratification, all by state legislatures except for the twenty-first amendment repealing
Prohibition, which was ratified by state ratifying conventions. Congress typically specifies a seven year
ratification period, but this is not required. 67

[*11] Second, two-thirds (or thirty-four) of state legislatures may demand a constitutional convention,
though it is worth noting that of the twenty-seven amendments to the Constitution none stem from this
source. This might lead some to dismiss this route as a likely path for a death penalty amendment. That
said, it seems we may be on the brink of a constitutional convention, even if it is not convened
specifically to address the death penalty. As the Economist recently reported, "there are now 27 states
in which the legislatures have passed resolutions calling for a convention that would propose a balance-
budget amendment." 68 Only seven more are needed for a convention to actually convene. 69

Thus, while it is unlikely that a constitutional convention would be called solely on the issue of death
penalty abolition, it seems quite possible that one could be called on other issues, such as the balanced
budget amendment, and this might open the door to other amendments' consideration. Interestingly,
over time, there have actually been hundreds of Article V applications for a constitutional convention
from forty-nine of the fifty states. 70 According to the count maintained by the U.S. House of
Representatives, there are 116 applications pending. 71 One might ask why, then, have we not yet seen
a convention? After all, the Constitution itself specifies that a convention is to be convened after two-
thirds of the states demand it. At least part of the answer is that there are so many unresolved
questions about the process for holding an Article V convention.

One of these critical, unresolved questions is whether an Article V convention can be convened
generally, or only to address a particular amendment. A related question is whether, once convened if
done so for a specific amendment or amendments, the convention might take up other issues.
Constitutional scholars and experts disagree. 72 The [*12] point of this essay is not to debate the
structural rules for a convening and administering an Article V convention although, to be sure, the
possibilities enthrall and terrify both sides of the aisle. 73 Instead, my purpose here is simply to observe
that in the event a constitutional convention occurs, good arguments exist for presenting any and all
sorts of amendments, whether or not they are part of the original call.

This opens a door to what may be the most plausible path for abolishing the death penalty--an
amendment proposed at a constitutional convention. (Indeed, for death penalty opponents, this
proposal could be the most redeeming aspect of a constitutional convention.) Once convened, there is
nothing in Article V to suggest that a proposed amendment need more than a simple majority to then be
sent to the states for ratification. Would a majority vote to support a death penalty abolition
amendment? This seems at least possible, if not quite likely, given that nineteen states have already
abolished it, an additional four have gubernatorial moratoriums in place, and a total of thirty-six states
have not engaged in executions in at least five years (recall that figure recently reported from the Death
Penalty [*13] Information Center). 74 A death penalty abolition amendment could be passed as part of
a package of amendments, with different components attractive to different states. Of course approval
by the constitutional convention is only the first hurdle. The amendment would still need to be ratified
by thirty-eight states. This number matters because it takes thirty-four states to convene a constitutional
convention, and thirty-eight to ratify an amendment.

It is, of course, impossible to know how legislatures or constitutional convention delegates would vote if
they actually faced a death penalty amendment, though we can perhaps learn something by examining
efforts endeavors at the state level. For example, Nebraska recently overturned a legislative ban on the
death penalty through public referendum vote. 75 So, we can assume that the Nebraska delegation
would be unlikely to support the amendment. (Then again, the legislature did vote to ban it in 2015, so
perhaps popular sentiment could swing back.) On the other hand, public support for capital punishment
is waning. According to a 2017 Gallup poll, "Americans' support for the death penalty has dipped to a
level not seen in 45 years. Currently, 55% of U.S. adults say they favor the death penalty for convicted
murderers." 76 The results from a Pew Research poll conducted in 2016 documents a similar decline:

Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while
42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%. Public support
for capital punishment peaked in the mid-1990s, when eight-in-ten Americans (80% in 1994) favored the
death penalty and fewer than two-in-ten were opposed (16%). Opposition to the death penalty is now
the highest it has been since 1972. 77

[*14] The nation clearly is at a tipping point; whether this galvanizes support for an amendment
remains to be seen. If all 36 states declining to engage in executions over the past five years were to
ratify, only two more would be needed for the death penalty to no longer be contemplated by the
Constitution. This national trend of increased public support for abolishing death suggests the
sentiment, perhaps, could be leveraged to produce a successful constitutional amendment.

CONCLUSION

That the Constitution once contemplated the death penalty does not mean it must endure, and this is
the very sort of issue that Article V was designed by the Framers to address. This essay summarizes
capital punishment jurisprudence and data, and describes potential routes for abolishing death via an
amendment to the Constitution as an alternative to hoping that the Supreme Court might do so via
the Eighth Amendment. Even if a Gonzalez amendment is not revived by Congress, and even if a
proposal at a constitutional convention ultimately might not succeed, inserting the issue into the
national conversation in this context may bring other states to join the increasing number refusing to
impose death sentences and engage in executions.

Constitutional amendment would effectively abolish the death penalty

Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

However, there are many counter-arguments to this theory. For instance, in the United States, the
judiciary may present the only means through which to completely abolish the death penalty. As a
nation consisting of fifty separate states and the federal government, the only way to completely abolish
the death penalty in all states, other than through the Supreme Court, would be to add an amendment
to the Constitution abolishing the death penalty . This is an improbable action. Other than this, the
legislatures of every jurisdiction would have to debate and analyze the need for the death penalty,
which could be a very time-consuming, exhaustive solution, not to mention the fact that certain states,
unless forced, are unlikely to ever abolish the death penalty. 509 [*617]
States Counterplan
 1nc CP States

The fifty states and all territories in the United States should abolish the death
penalty, decommission any execution chambers in their jurisdiction and rescind
protocols for lethal injection.

States can abolish the death penalty AND the Court will eventually model it based on
the evolving standard of decency
Stubbs, 19 --- director of the ACLU’s Capital Punishment Project (3/28/19, Cassy Stubbs, Jeremy Stahl
interviewer - Slate senior editor, “Is the Tide Finally Turning on the Death Penalty? The momentum
gained at the state level might be enough to break through on the federal level,”
https://slate.com/news-and-politics/2019/03/momentum-to-abolish-death-penalty-growing.html,
accessed on 4/5/2020, JMP)

As recently as three years ago, California voters rejected a ballot measure to end the death penalty, but earlier this month California Gov. Gavin Newsom

announced he was ordering a moratorium on executions in the largest state in the country .* Newsom’s order
would offer a reprieve to the state’s 737 death row inmates, making it a landmark day in the history of death penalty abolition in this country.

This is just one event in the quiet revolution against the death penalty that is happening across the
country, says Cassy Stubbs, director of the ACLU’s Capital Punishment Project. The governor in Colorado, which already has an effective moratorium in place,
has been pushing legislators to make a permanent decision about the state’s death penalty before 2021. In New Hampshire, the state Senate is due to vote on a
measure abolishing the death penalty that already passed the House by a veto-proof majority. In Ohio, Republican Gov. Mike DeWine put an effective halt to the
state’s death sentences earlier this year. It’s all part of a nationwide trend that Stubbs sees as altering the landscape of the death penalty in this country in a way
that has not happened in decades. I spoke with Stubbs last week about these events and how the case for abolition is playing out in
courts and statehouses throughout the United States. The conversation has been condensed for length and clarity.
Jeremy Stahl: What background do you think is important for people to understand about Newsom’s announcement and the broader picture surrounding the death
penalty in the United States?

Cassy Stubbs: This year feels like a turning point for the death penalty. Last year, obviously, Washington abolished the death penalty. That was a big victory. But I
think what’s kind of unique right now is that we see a lot of different camps moving in the same direction at the same time. For example, there’s the pope coming
out with the strongest statement in history about the death penalty and the church’s view of the death penalty. We see there are conservative groups that are
really becoming concerned about the death penalty from a religious and moral perspective—and also from cost—while at the same time you have the Democratic
Party announcing that [abolition is] part of their platform.

Kamala Harris just talked about how the death penalty is never appropriate in any case in her view. Newsom just issued that powerful defense about why we can no
longer stand behind the death penalty and it is morally incumbent on us to break from this when it’s been shown to be so racially biased and inherently
discriminatory and unfairly applied. This kind of full-spectrum attack on the death penalty is just reaching a noise level that, to me, at least it feels very different
than I’ve seen in over a decade, in terms of a critical mass of voices.

There was [also] kind of a trajectory [where] we saw a number of governors do things that were good on the death penalty, like issue stays or moratoriums or
commutations, and then survive political attacks. We saw that the electorate was no longer voting on the death penalty. There was not the kind of backlash against
folks who came out saying “we need death penalty reform” that we had seen in the 1980s. That was the first stage. Now, we’re really in this new phase where we
see people both from the right and the left aggressively promoting death penalty repeal.

Who are you thinking of when you talk about recent politicians who have not necessarily faced a backlash?

We saw the governor of Colorado [John Hickenlooper] was targeted around the death penalty and was re-elected [in 2014], despite his granting of reprieves on the
death penalty and despite [an effective] moratorium on the death penalty in Colorado. We saw in Oregon, Gov. Kate Brown was re-elected [last year] with a
moratorium on the death penalty. We saw in Kansas, the Kansas state judges had been very robust in their review and had appropriately overturned death
sentences that [we believe] violated the U.S. Constitution on a pretty regular basis, and they got attacked for that and they survived those challenges. We saw it in
the Washington state Supreme Court, which [last year] wrote this really sweeping opinion finding racial bias in the application of the death penalty under the
Washington state Constitution. They issued that opinion right before the judicial elections, which in the lore of litigator strategy, you’d never expect a state court to
issue a big decision right before judicial elections. There’s no backlash.

What are some of the states where you see potential for the next big moves on this issue?
Ohio is another example where there has been this legal injection litigation for some time that has been really bogged down in questions of whether or not the
defendant has shown and proposed a better way—a less painful way—of killing himself. A lot of the lethal injection litigation has lost sight of the fact that there’s
this enormous compelling record that we are carrying out executions with a drug, midazolam, that is in fact leading to torture of prisoners in a number of states. We
just saw the [Republican] governor of Ohio [Mike DeWine] say, we’re not going to do this.

We have this huge [death] row in California, a row that I think is so much bigger than any other row in the country. So [Newsom’s]
announcement
all alone would be a major development in the history of the death penalty in America. But the fact is
that it’s happening at the same time you have a state like Ohio moving forward with a moratorium, and
you have a state like Pennsylvania that’s got a large [death] row [moving ahead] with a moratorium.

You’re talking a lot about state-level action. Is that because action at the federal level is such a heavy
lift? For advocates of abolition, it seems to me that recent decisions from the Supreme Court may not have been so inspiring. I’m talking about that recent case
before the Supreme Court, where the court let Domineque Ray be executed in Alabama despite being denied access to his imam, and the court deciding not to rule
on the religious discrimination question there.

There is a lot of movement in states and by state executives and state courts, and I think that’s in part
because we haven’t seen enough movement from the U.S. Supreme Court yet. But that does not mean that
I am in any way giving up on federal courts, or giving up on the U.S. Supreme Court abolishing the death penalty. I do think that is
coming.

The Jones case was this case out of California where the federal district court found the death penalty in California unconstitutional because of the incredibly broken
nature of California’s death penalty and the delays there—it’s just absolutely arbitrary who might get executed in California. At the same time, there was a federal
court in New Hampshire that ruled the death penalty unconstitutional a number of years ago. Those cases ultimately did not stand, but the merits of those cases did
not actually reach the Supreme Court.

I think that when

you look at the benchmarks that the Supreme Court has set forward for whether or not the
death penalty today is constitutional under the Eighth Amendment, the evolving standard of decency
says let’s look at what’s happening in the states . Let’s look at the number of executions, let’s look at
the trends, let’s look at the new death sentences. All of those are moving in the same direction. It is just
an incredible downward-sloping number.

We certainly would not have predicted where we are today in terms of the low number of new death sentences, the low number of executions each year. There

is an incredible showing, I think, under the Eighth Amendment, and it is just a matter of time before the
Supreme Court is going to take one of these cases.

I think if
you look at the Supreme Court’s record, it has issued a number of opinions where we’ve seen that
it is concerned about some of these same things that Newsom was talking about, some of these same
things that the Washington state Supreme Court was talking about.

Now, we were very dismayed, and I would not ever defend the Supreme Court’s allowing Ray’s execution
to go forward. I think that that was a coming together of some of the worst ways in which the death penalty plays out, including the fact that, because
of the way that Supreme Court rules work under [deadline] of an execution, it’s very difficult to get a
claim heard that you would otherwise normally get heard . So they had enough votes to hear the briefing and make a reasoned
decision on the merits of the religious discrimination that was going on in that case, but they didn’t have enough votes to stop the execution because of the way the
state rule works. Time and time again, super important legal issues don’t get a real hearing because the push for finality and moving to execution just ends up
outweighing decency and justice. So that was really a setback, and discouraging, but I think that we’ve
seen from this court over the years
—even though they rule against a claim that is brought on the eve of execution, that doesn’t tell you
how they would rule on the merits of the claim.
 2nc Solvency / AT: Permutation Solves the Net Benefit

The counterplan solves the case by eventually spurring the Court to rule that capital
punishment is unconstitutional under its "emerging standards of decency" doctrine –
[-- but the plan still links to _____ by acting too quickly before underlying conditions
can by transformed]
Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

V. Conclusion: Looking Forward

It is one thing to establish commissions to try to find ways to impose the death penalty fairly and
without error and to ban it for the mentally retarded. But it is quite another to come to the conclusion
that capital punishment should be abolished as a matter of principle on the grounds that its
enforcement inevitably involves "cruel and unusual punishment." It remains open for the United States
Supreme Court to make that judgment under its "emerging standards of decency" doctrine. 607

It is indeed a very difficult task to abolish the death penalty in the United States judicially. The majority
of the world has now rejected it as a punishment, but the critical part of the test -- the majority of U.S.
states -- have not. Nonetheless, the Supreme Court remains the best option for complete abolition of
the death penalty in every state, and the "evolving standards of decency" doctrine makes even the
slightest change of opinion in state legislatures relevant to the overall constitutionality of the
punishment in the United States.

However, it is very doubtful that the Supreme Court will declare the death penalty unconstitutional
anytime in the near future. If the death penalty is to be abandoned in the United States, two scenarios
are possible. First, there must be a political response against capital punishment like there was in
England. While the process of abolition in England may seem similar to that of the United States
currently, this similarity is mostly superficial.

The key to abolition in England was the political leadership of the Labour Party, Sidney Silverman, and
others who rose up, outnumbered, and made it their goal to end the death penalty. If anything can be
learned from comparing the histories of capital punishment in the two countries, it is that the United
States needs the kind of leadership that England had in order to abolish the death penalty. American
politicians need to become better informed on the realities of capital punishment, need to quit the
demagoguery on it, and start making conscientious votes to abandon the death penalty in state
legislatures. If this were to happen, there might be the same rejection of the death penalty in
Congress and the state legislatures as there was in England. While the similarities may be mostly
superficial between the two countries, the same deficiencies with regard to the death penalty exist in
the United States as they did in England when the death penalty was abolished. Therefore, there is a
similar need in the United States for political leadership to abolish the death penalty in this country.
[*645]
Second, if the political leadership does not develop, the United States may abandon the death penalty
de facto. Over the past decade, the use of the death penalty has been declining in this country: juries
are imposing it less, prosecutors are seeking it less, and life without parole is becoming more popular as
an alternative to death. This could eventually lead to the death penalty withering away because it is
used so infrequently. This gradual abandonment of the death penalty would not be like the nation-wide
repeal in England, but more like society giving up on it as its flaws are recognized and society realizes
that most of the world has rejected it as a punishment. If this were to happen in a majority of
jurisdictions, it is even possible that the Supreme Court would step in and declare the death penalty
unconstitutional for all offenses.

Until that time, however, the Supreme Court continues to restrict the use of the death penalty in
America. What is next for the Supreme Court? Six states now have enacted laws allowing the death
penalty as a punishment for child sex crimes. The constitutionality of these laws is still at issue, but they
seem to go against the Court's decision in Coker and its progeny. Certiorari has just been granted after
the recent Louisiana Supreme Court decision in Kennedy, 608 ruling that the death penalty for child rape
is not excessive, so the Supreme Court will take up the issue of the constitutionality of these laws soon
and hopefully decide to explicitly limit the death penalty in the United States to murder. While the
complete abolition of the death penalty would be a far better solution, it seems too distant a possibility
for the Supreme Court to make without more significant changes in state legislatures.

The British today look back to the days when the death penalty was debated and note the efforts of
Sydney Silverman and Lord Chancellor Gardiner in bringing together both Houses of Parliament to finally
put an end to capital punishment in England. Perhaps one day in the not too distant future, Americans
will look back on the early efforts of Justices Marshall and Brennan, and the future leaders who stepped
up in state legislatures to make abolition of the death penalty a reality. As Justice Blackmun said many
years after his dissent in Furman, "I feel morally and intellectually obligated simply to concede that the
death penalty experiment has failed." 609
 2nc Solvency

States can play a leadership role despite federal inaction

Arnold, 19 --- co-chair of Arnold Ventures LLC (8/4/2019, Laura, “Death Penalty Return May
Undermine Criminal Justice Reform,” https://www.law360.com/articles/1184431/death-penalty-return-
may-undermine-criminal-justice-reform, accessed on3/19/2020, JMP)

The federal government has often served as a standard bearer for state policy, establishing best
practices and creating momentum for the states to follow. However, when it comes to the death
penalty, the federal government could learn something from the states.

States can invoke human rights norms to justify abolishing death penalty
Barry, 17 --- Professor, Quinnipiac University School of Law (Fall 2017, Kevin M., “2016 SYMPOSIUM:
THE DEATH PENALTY'S NUMBERED DAYS?: THE LAW OF ABOLITION,” 107 J. Crim. L. & Criminology 521,
Nexis Uni via Umich Libraries, JMP)

The human rights linkage, moreover, is not confined to the Court's death penalty jurisprudence. State
legislators have invoked human rights norms in support of repealing the death penalty, 38 as have
governors when imposing moratoria on executions 39 and commuting death sentences. 40
 Federal Modeling

Yes modelling – the Court bases its death penalty decisions on what states have done
Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

Another argument is that the issue of abolishing the death penalty in England was better debated by
elected officials who were forced to stay in touch with public opinion. However, while the House of
Commons is an elected body of Parliament, the House of Lords in England consists of appointed
members not elected by the general public. Further, when the Murder (Abolition of Death Penalty) Act
was passed in 1965, many of the House of Lords members were hereditary peers, whose right to be in
Parliament was passed down from generation to generation. 513 The House of Lords played an integral
role in passing death penalty legislation, as can be seen by the many years it took in England before the
Lords arrived at the same opinion as those in the Commons that capital punishment should be
abolished.

Similarly, the Supreme Court Justices are appointed in America, and thus one might argue that their
power to see the public opinion on an issue restricts them from ultimately abolishing the death penalty.
However, the Supreme Court can be seen as a similar body to the House of Lords, looking over what the
appointed members in the Commons are doing and then rendering its own judgment. The Supreme
Court bases all of its death penalty decisions greatly on what the individual legislatures in each state
have done, thus acting like the House of Lords in England.

As can be seen from the analysis above, the difference between the legislative action in England and the
judicial action in America concerning the death penalty is an important one. However, looking at the
distinction in depth, many similarities exist between the processes in both countries despite this
fundamental difference. [*619]

Uniform fiat solves --- allows a national consensus to form for Eight Amendment
analysis
Millett, 08 --- J.D. Candidate, Franklin Pierce Law Center (Spring 2008, Frederick C., NOTE: Will the
United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?,” 6 Pierce
L. Rev. 547, Nexis Uni via Umich Libraries, JMP)

C. The Death Penalty Debate in the States

1. Generally

In America, a majority of states still have the death penalty, making it very difficult, if not impossible,
to find a "national consensus" for an Eighth Amendment analysis. Thirteen states, plus the District of
Columbia, have completely abolished the death penalty in the United States. 559 In fact, just recently
New Jersey became the thirteenth state to abolish the death penalty in the United States, signing the
abolition bill into law on December 17, 2007. 560 On December 10, the New Jersey Senate voted to
abolish by a vote of 21-16. 561 This was shortly followed by the New Jersey General Assembly, voting
44-36 on December 13 to abolish the death penalty. 562 The Bill was signed into law on December 17 by
Governor Jon Corzine. 563 This legislative action was spurred by a commission report published in
January 2007 recommending complete abolition of the death penalty in New Jersey. 564

There is evidence that momentum is beginning to gain in other states as well. In 2004, New York's
highest court declared its current death penalty [*637] statute unconstitutional. 565 Further action in
the New York legislature has been unable to pass a new bill reinstating the death penalty. 566 Also, on
February 21, 2007, Governor O'Malley urged the Maryland legislature to consider a bill that would
completely abolish the death penalty in Maryland, though this bill was defeated in a Senate committee.
567 On February 8, 2008, the Nebraska Supreme Court declared death by electrocution "cruel and
unusual punishment" in violation of their state constitution, thus voiding the state's only method of
execution. 568 Further, the Supreme Court heard oral arguments on the issue of whether the three-drug
cocktail used in lethal injections is cruel and unusual punishment in January 2008. This has blocked all
executions using lethal injection while the issue has been pending. 569 Prior to this, lethal injection
procedures were being questioned by the courts of many states, causing twelve jurisdictions to halt all
executions and create de facto moratoriums. 570 The main reason for this trend was a recent botched
execution in Florida, where it took an accused individual thirty minutes to die by lethal injection. 571
Arkansas, California, Delaware, Florida, Maryland, Missouri, Nebraska, North Carolina, Ohio, [*638]
Tennessee, and the federal government all halted executions before the U.S. Supreme Court agreed to
hear the issue. 572

Illinois has had a moratorium on the death penalty since 2000, imposed by Governor Ryan after a
number of innocent men were freed from Illinois's death row. 573 Governor Ryan also set up a
commission to study the death penalty in Illinois and in 2002, after two years of deliberation, the
commission members agreed that the death penalty should be significantly changed and restricted. A
majority of the commission even recommended the abolition of the death penalty. 574 One specific
recommendation made by the commission was to limit the number of crimes eligible for the death
penalty to five types of murder: (1) murder of a police officer or firefighter, (2) murder of a prison
correctional officer or inmate, (3) murder to obstruct the justice system, (4) torture during the course of
a murder, and (5) the murder of two or more persons. 575 Governor Ryan immediately announced
legislation to put into effect the recommendations, but the legislature never acted. 576 In a speech in
2003, Ryan commuted all the sentences of the death row inmates to that of life imprisonment, after
noting that the system in Illinois was flawed and unfair. 577

In 2006 there were fifty-three executions in the United States; in 2007 there were forty-two, the lowest
number since 1994. 578 Only fourteen states actually used the death penalty in 2006, followed by only
ten states in 2007. 579 In 2007, Texas accounted for twenty-six executions -- no other state had more
than three executions. 580 In addition, a number of states who still maintain the death penalty have not
even executed anyone since 1976: Kansas, New Hampshire, and New York. 581 South Dakota recently
executed its first person since the death penalty was reinstated in 1976, [*639] after previously
postponing the execution because of concerns with the State's lethal injection procedure. 582

See Figure 1 below for a summary of the death penalty currently in the United States. Added together,
seventeen states (eighteen including D.C.) currently have either rejected or refused to impose the death
penalty in the United States. Time will tell whether the jurisdictions who have currently halted all
executions due to problems with lethal injection will decide to resume executions or abolish the death
penalty, but it seems like momentum may be gaining with the state legislatures showing a rejection of
capital punishment. 583 [*640] FIGURE 1

[SEE FIGURE 1 IN ORIGINAL]

The Death Penalty in America, 2007

 AT: State Rollback

Durable fiat solves – the counterplan abolishes the states’ death penalty. If parts of
the counterplan can get rolled back then so can the plan and you should negative on
presumption.

Other mandates help prevent rollback – California proves

Von Drehle, 19 (3/15/19, David - author of a number of books, including the award-winning bestseller
“Triangle: The Fire That Changed America”, “The death penalty makes a mockery of our justice system.
Abolish it,” https://www.washingtonpost.com/opinions/the-death-penalty-makes-a-mockery-of-our-
justice-system-abolish-it/2019/03/15/fccbcf66-4670-11e9-aaf8-4512a6fe3439_story.html, accessed on
4/5/2020, JMP)

California Gov. Gavin Newsom (D) announced that he will not pursue the execution of any of the 737
death-sentenced inmates at San Quentin State Prison. Calling capital punishment “ineffective,
irreversible and immoral,” Newsom ordered the decommissioning of the execution chamber and
rescinded the state’s protocol for lethal injection. These steps will make it more difficult for future
California governors to reverse course.
Opioid PIC
 Note About Counterplan

The counterplan is a defense of the current administration’s approach to utilizing capital punishment
against the “most culpable defendants, particularly those with ties to criminal organizations who engage
in substantial drug-related criminality and who tend to employ violent means in doing so.”

This counterplan does not create a new federal capital drug-induced homicide law that “imposes the
possibility of capital punishment for manufacturing, distributing, or dispensing an opioid resulting in
death.” The author does discuss whether Congress should enact this new law but outlines serious
reservations, which includes: “Of course, such a law could prove undesirable, even counter-productive.
Numerous commentators, including those in the legal academic community, have criticized the use of
drug-induced homicide prosecutions 45 and outlined a variety of legal challenges to them. 46 Further,
the idea of capital punishment for such a crime has drawn special disapproval. 47 A federal drug-
induced homicide law that imposes the death penalty would surely face significant criticism, opposition,
and litigation hurdles. Moreover, creating such a law may not ultimately result in more death sentences,
or even capital prosecution authorizations, and thus, might not ultimately serve a policy of more robust
use of the federal death penalty in drug cases.”

I did retain a few blocks where Broughton was defending the federal capital drug-induced homicide law
just in case those arguments are leveraged against the counterplan. In most cases those primary
response should be that they don’t apply. Those blocks include “AT: Legality Issues” and “AT: Federal
Death Penalty Act Culpability Provisions” and “AT: Mitigating Factors Prevent Death Sentence.”
 1nc CP Opioid PIC

United States federal government should abolish the death penalty with the exception
of the most culpable defendants with ties to criminal organizations who engage in
substantial drug-related criminality and who tend to employ violent means in doing
so.

Criminal prosecutions are an important part of a multi-prong attack to reduce opioid

related deaths
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

IV. CONCLUSION

Both the general principles of the criminal law and Eighth Amendment capital proportionality
jurisprudence would likely permit both criminal liability and imposition of the death penalty for a limited
class of drug-induced homicide defendants. Still, a capital drug-induced homicide prosecution would
present numerous legal and constitutional hurdles, and would, even if eligibility could be established,
challenge prosecutors to persuade a capital jury that the defendant's culpability for the death was so
significant as to warrant the death penalty.

Consequently, the Attorney General--and those at the Justice Department who would counsel him in his
decision whether to seek the death penalty, including the relevant United States Attorney--may balk at
pursuing the death [*635] penalty in many, if not most, such cases. That hesitation would be prudent
pursuant to the existing death penalty protocol at the Justice Department, which requires the
Department to consider all of the facts and circumstances of the crime, including both aggravating and
mitigating factors. 124 It would also be difficult to reconcile with a Department and Administration
policy of expanding the use of the death penalty for these types of cases. The most likely chief purpose
of the Memo--to encourage federal prosecutors to remain aware of capital punishment options in
drug-related cases and to recommend the death penalty more often in those cases--would therefore
be served best by focusing capital prosecution resources on those cases with the most culpable
defendants, particularly those with ties to criminal organizations who engage in substantial drug-
related criminality and who tend to employ violent means in doing so.

Of course, some critics of aggressive criminal prosecution in opioid-related cases claim that prosecutions
will not solve what amounts to a major public health crisis. 125 Rather, the argument goes, effort and
resources should be expended on treatment, awareness, care, and prevention. 126 There is much to be
said about these other approaches to the opioid crisis, approaches that advisers to the President have
acknowledged. 127 It is almost certainly true that criminal prosecutions alone will not solve the crisis.
However, criminal prosecution, even if insufficient by itself, can nevertheless form an important
element of a multi-prong attack on the opioid crisis, an attack that uses treatment, prevention, and
legal--including criminal--accountability as its chief weapons.
Criminal prosecution may not solve the opioid crisis, but as part of a comprehensive approach to
combating it, criminal prosecution can seek moral condemnation from the political community of
those who use opioids--often for personal gain or profit--to prey upon vulnerable populations. It can
hold [*636] accountable, and subject to public scrutiny, those who are aware of the grave dangers to
human life that the opioid trade creates. It can punish--perhaps, in limited and appropriate cases, even
with death--those who, with awareness of the risks, deliberately ignore those risks and supply fellow
human beings with the very instruments of their ultimate demise.

Fentanyl is the deadliest drug in the U.S. --- killed over 20,000 in 2016 alone
Weixel, 18 (12/12/18, “CDC: Fentanyl is deadliest drug in America,”
https://thehill.com/policy/healthcare/420959-cdc-fentanyl-is-deadliest-drug-in-america, accessed on
416/2020, JMP)

Fentanyl has become the most deadly drug in the U.S., according to a new report from the Centers for
Disease Control and Prevention (CDC).

The CDC said in a report released Wednesday that fentanyl was involved in more deadly drug overdoses
in 2016, the most recently studied year, than any other drug.

There were a total of 63,632 drug overdose deaths in 2016, with fentanyl found to be involved in nearly
29 percent of those cases, according to the report.

By comparison, fentanyl was involved in only 4 percent of all drug fatalities in 2011. That year,
oxycodone ranked first, involving 13 percent of all fatal overdoses.

Lawmakers are struggling to deal with a sweeping opioid epidemic , and the CDC data shows that the
problem goes further than overprescription of drugs.

From 2011 to 2016, cocaine consistently ranked second or third. During the study period, the age-
adjusted rate of drug overdose deaths involving heroin more than tripled, as did the rate of drug
overdose deaths involving methamphetamine.

Heroin was involved in 25 percent of all overdose deaths in 2016 while methamphetamine was involved
in over 10 percent, according to the CDC.

The study, which analyzed death certificates for drug overdose deaths, found that the 10 most
frequently mentioned drugs were often found in combination with each other. For example, nearly one
third of fentanyl-related deaths involved fentanyl in combination with heroin.

In addition, more than one third of the overdose deaths involving cocaine also mentioned heroin, the
CDC found.

The study also found that illegal drugs like fentanyl and heroin were the leading causes of unintentional
overdoses, and prescription drugs were more likely to be involved in suicide overdoses.
 2nc Solvency

Making death penalty available in rare but appropriate drug crimes that result in
death is a critical part to reduce opioid crisis
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

In particular, this Article addresses the significance of these two distinct but interconnected elements of
the Trump Administration's prosecutorial approach to the opioid crisis--the President's announcement
of his stated opioid policy initiatives and the Memo--evaluating their meaning for lawyers and
policymakers on the front lines of opioid prosecution and legislation. I give special attention to use of
the federal death penalty by first examining the Sessions Death Penalty Memo and considering its
meaning and significance in light of existing law and Justice Department policy in capital cases. I then
explain that Congress could lawfully craft a new capital statute targeting opioid trafficking resulting in
death but doing so would also raise a number of difficult legal issues, including potential culpability
issues pursuant to both the Eighth Amendment and the Federal Death Penalty Act (FDPA). I conclude
that, while a strategy of aggressive criminal prosecution and punishment will not alone provide an
answer to the national opioid problem, federal prosecution--including the possibility of death penalty
authorization in rare but appropriate cases--should nonetheless play an important role in a
comprehensive plan of counter-opioid action across government agencies.

Existing drug laws could be effectively applied to focus to most culpable drug
offenders
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

III. IMAGINING A FEDERAL CAPITAL DRUG-INDUCED HOMICIDE LAW

If the Trump Administration's policy is to pursue capital punishment in drug-related cases, then that
policy would best be effected by a focus on the most culpable drug offenders--those whose crimes are
sufficiently [*621] aggravated and insufficiently mitigated--to warrant serious death penalty
consideration. The existing statutes, noted in the Memo, provide a legal basis for targeting such
actors. 44 But Congress could also craft a capital opioid trafficking statute not already in existence, and
not among those outlined in the Sessions Memo, that imposes the possibility of capital punishment for
manufacturing, distributing, or dispensing an opioid resulting in death--and do so consistently with
traditional principles of criminal law and with existing Eighth Amendment jurisprudence. Of course, such
a law could prove undesirable, even counter-productive. Numerous commentators, including those in
the legal academic community, have criticized the use of drug-induced homicide prosecutions 45 and
outlined a variety of legal challenges to them. 46 Further, the idea of capital punishment for such a
crime has drawn special disapproval. 47 A federal drug-induced homicide law that imposes the death
penalty would surely face significant criticism, opposition, and litigation hurdles. Moreover, creating
such a law may not ultimately result in more death sentences, or even capital prosecution
authorizations, and thus, might not ultimately serve a policy of more robust use of the federal death
penalty in drug cases.
 Fentanyl Kills Thousands

Fentanyl killed 29,000 in 2017 alone

Jacobs & Dennis, 18 (Jennifer & Steven T., “Trump Tells Sessions He Favors Death Penalty for
Fentanyl Dealers,” https://www.bloomberg.com/news/articles/2018-08-23/trump-is-said-to-propose-
death-penalty-for-fentanyl-dealers, accessed on 4/16/2020, JMP)

Fentanyl is one of the world’s most dangerous and most profitable narcotics , so powerful that it’s been
studied as a chemical weapon, Bloomberg Businessweek reported in May. It kills more people than any
other opioid, including heroin, because it’s so easy to overdose.

The drug or its analogs killed an estimated 29,000 Americans in 2017, according to the National Institute
on Drug Abuse.
 AT: Death Penalty Fails / Innocents Will be Convicted

***note when prepping file --- a version of this card is also in the case section under
“1nc Abolition Makes Murder, Attempted Murder, Rape More Likely”

Capital punishment is necessary to preserve an effective system of marginal

deterrence that reduces the incidence of the crime --- the benefits outweigh the risk of
executing an innocent person
Zycher, 19 --- Resident Scholar at the American Enterprise Institute (7/30/19, Benjamin, “Capital
punishment and the conservative dilemma: Marginal deterrence vs. the perverse incentives of
prosecutors,” https://www.aei.org/politics-and-public-opinion/criminal-justice/capital-punishment-and-
the-conservative-dilemma-marginal-deterrence-vs-the-perverse-incentives-of-prosecutors/, accessed on
4/15/2020, JMP)

For conservatives the issue of capital punishment, whether imposed at the state or federal level,
confronts a dilemma much more fundamental. On the one hand, an effective system of capital
punishment is necessary to rationalize the system of penalties for greater and lesser crimes, that is, to
preserve an effective system of “marginal deterrence.” On the other hand, the traditional conservative
skepticism of government power generally, and of the perverse incentives of prosecutors in particular,
might lead toward a net conservative opposition to capital punishment, the imposition of which cannot
be limited in those cases in which the innocent are convicted wrongfully. The discussion here attempts
to find a route escaping this dilemma.

With respect to marginal deterrence, consider for example the case in California of Jesse James
Hollywood. (Yes, that is his real name.) He is serving a life sentence (without the possibility of parole) for
the kidnapping and murder of 15-year-old Nicholas Markowitz in August 2000. After Hollywood “called
his lawyer and learned the severe penalty for kidnapping, police say, the young men decided they had to
kill Nicholas” (Los Angeles Times, August 26, 2001).

In other words, since the penalty for kidnapping was a life sentence, or close to it, the marginal (or
“extra”) penalty for murdering the young and innocent Markowitz was perceived to be small or zero, in
that the actual application of capital punishment in California was and remains both unusual and subject
to long delay.

More generally: If a criminal faces a life term for a given crime, and if there is no effective threat of a
death sentence, why not get rid of the witnesses? Stiff penalties and other policies are likely to deter
crimes, as suggested by the scholarly literature, but if the structure of the penalty system makes even
stiffer penalties difficult to impose, that structure actually can encourage crimes even more egregious.

Such crimes as attempted murder, aggravated rape, or kidnapping for ransom are so egregious that they
appropriately carry very stiff penalties approximating life sentences. In the absence of capital
punishment, that necessarily reduces the marginal penalties for offenses even worse, a state of affairs
that can be predicted to increase the rate at which such terrible crimes are committed .
One way around this deterrence problem is to reduce penalties for the large array of lesser crimes so as
to preserve marginal deterrence for the more serious ones. But that would yield an increase in the rate
at which the lesser crimes — many of which are hardly trivial — are committed, and might actually
increase the rate at which the truly serious crimes are observed, in that some offenses, such as
unplanned killings of convenience store clerks, are outcomes of lesser felonies. In short, an attempt to
preserve marginal deterrence by reducing penalties across the board is likely to increase serious crime
generally and the taking of innocent life. Therefore, a society serious about deterring egregious crimes
generally and murders in particular, and anxious to use punishment as a moral expression of the value
of innocent life, must have an effective system of capital punishment.

But: Can there be any doubt that prosecutors have perverse incentives to hide exculpatory evidence, to
suborn perjury, and to use plea bargaining as a hammer to induce the accused to plead guilty so as to
avoid penalties even more severe, including capital punishment? I betray no secret when I report that
many prosecutors are loath to allow new evidence to threaten their prior conviction “victories,” the
pursuit of justice be damned. It often is asserted that prosecutors have an ethical obligation not to
threaten filing of capital charges in order to obtain a plea bargain in exchange for, say, a life sentence.
How this ethical constraint is to be implemented in practice is far from obvious. More generally: That
prosecutors often are elected and have ambitions for higher office create incentives far from salutary in
the context of the fundamental pursuit of justice rather than convictions.

In the absence of capital punishment, a second conceptual solution to the problem of marginal
deterrence would be a Soviet-style system of general-, strict-, and special-regime prisons offering
inmates declining standards of comfort in inverse proportion to the seriousness of the crimes
committed. Even the general-regime prisons were brutal, and it is not obvious that inmates would prefer
years in a special-regime facility to a quick execution. Obviously, such a prison system would violate
traditional norms of American morality, and the courts would be unlikely anyway to uphold it as
consistent with the 8th Amendment.

The goal is to preserve marginal deterrence while limiting the effects of perverse prosecutorial
incentives. A third solution to this conundrum — consistent with the moral pursuit of justice and the
preservation of political support for capital punishment — would be that those accused of capital crimes
be given the resources, say, $750,000 or whatever the funding necessary for a serious defense and
appellate process. (Whether such funding would be need-based and other administrative details are not
of direct concern here.) This hardly would be an important fiscal burden in an economy with a GDP
approximating $20 trillion. Such a political compromise restoring an effective system of capital
punishment might also include a new state or federal court of appeal specializing in capital cases,
combined with strict time limits on the number and length of appeals. This new court would be
subordinate to the Supreme Court, but it is likely that the latter would accept few or no appeals from
the former.

The common argument that a humane society cannot risk even one execution of an innocent is
misguided: Just as most of us risk death daily in order to drive automobiles, participate in extreme
sports, or watch the Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the
infinitesimal risk of wrongful execution in order to obtain the far more important reductions in serious
crime that an effective system of capital punishment makes possible . Capital punishment is an
extremely difficult business. The alternative is worse.
And, yes deterrence --- majority of studies prove and each execution results in 18
fewer murders
Muhlhausen, 14 --- Ph.D. & Research Fellow in Empirical Policy Analysis at the Heritage Foundation
(9/30/2014, David B., “How the Death Penalty Saves Lives,” https://www.heritage.org/civil-
society/commentary/how-the-death-penalty-saves-lives, accessed on 3/11/2020, JMP)

On Sept. 10, Earl Ringo Jr. was executed in Missouri. Before you decide whether or not this is right,
consider what Ringo did.

In July 1998, Ringo and an accomplice planned to rob a restaurant where Ringo had previously worked.
Early one morning, they followed delivery truck driver Dennis Poyser and manager-in-training Joanna
Baysinger into the building before shooting Poyser to death and forcing Baysinger to hand over $1,400.
Then, Ringo encouraged his partner to kill her. A jury convicted Ringo of two first-degree murders.

Some crimes are so heinous and inherently wrong that they demand strict penalties – up to and
including life sentences or even death. Most Americans recognize this principle as just.

A Gallup poll from May on the topic found that 61 percent of Americans view the death penalty as
morally acceptable, and only 30 percent disagreed. Even though foes of capital punishment have for
years been increasingly vocal in their opposition to the death penalty, Americans have consistently
supported capital punishment by a 2-to-1 ratio in murder cases. They are wise to do so.

Studies of the death penalty have reached various conclusions about its effectiveness in deterring crime.
But a 2008 comprehensive review of capital punishment research since 1975 by Drexel University
economist Bijou Yang and psychologist David Lester of Richard Stockton College of New Jersey
concluded that the majority of studies that track effects over many years and across states or counties
find a deterrent effect.

Indeed, other recent investigations, using a variety of samples and statistical methods, consistently
demonstrate a strong link between executions and reduced murder rates. For instance, a 2003 study
by Emory University researchers of data from more than 3,000 counties from 1977 through 1996 found
that each execution, on average, resulted in 18 fewer murders per county. In another examination,
based on data from all 50 states from 1978 to 1997, Federal Communications Commission economist
Paul Zimmerman demonstrated that each state execution deters an average of 14 murders annually.

A more recent study by Kenneth Land of Duke University and others concluded that, from 1994 through
2005, each execution in Texas was associated with "modest, short-term reductions" in homicides, a
decrease of up to 2.5 murders. And in 2009, researchers found that adopting state laws allowing
defendants in child murder cases to be eligible for the death penalty was associated with an almost 20
percent reduction in rates of these crimes.

In short, capital punishment does, in fact, save lives. That's certainly not to say that it should be
exercised with wild abandon. Federal, state and local officials must continually ensure that its
implementation rigorously upholds constitutional protections, such as due process and equal protection
of the law. However, the criminal process should not be abused to prevent the lawful imposition of the
death penalty in capital cases.
Moral indignation is an appropriate response to inherently wrongful conduct, such as that carried out
by Earl Ringo Jr. While the goal of lower crime through deterrence is worthwhile, lawmakers need to
place special emphasis on the moral gravity of offenses in determining the proportionality of
punishment.

The execution of Ringo was morally just. And it may just save the lives of several innocents.
 AT: President Expanded the Death Penalty

The Attorney General’s Memo did not propose any new legislation --- just relied on
several existing capital statutes relevant to drug-trafficking crimes
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

Although not reflected precisely in the President's New Hampshire remarks, the White House later
released its plan for combatting the opioid crisis and stated specifically that the President's opioid
initiative will "strengthen criminal penalties for dealing and trafficking in fentanyl and other opioids" and
that the Justice Department "will seek the death penalty against drug traffickers, where appropriate
under current law." 10 The White House [*613] proposed no new federal death penalty legislation in
this document. Indeed, when the White House released a new fact sheet on the President's initiative in
October 2018, that document retained the same language with respect to the death penalty for drug
traffickers as the March 19, 2018 fact sheet. 11 Notably, the original initiative was released shortly after
the reporting on the Administration's consideration of new legislative approaches to a federal death
penalty connected to opioid trafficking. 12 And the amended initiative was posted shortly after more
public reporting that the President had suggested seeking the death penalty for dealers of large
quantities of fentanyl--reporting that also cited one United States Senator as saying that such legislation
would have to be separated from existing criminal justice reform efforts in Congress. 13

The day after the President's New Hampshire speech and release of the opioid initiative, then Attorney
General Jeff Sessions sent a memorandum (the Memo) to all United States Attorneys to explain the
Justice Department's next steps in implementing the President's initiatives. 14

The Memo directed prosecutors to "consider every lawful tool at their disposal" to combat the opioid
epidemic. 15 In addition to designating opioid coordinators and seeking criminal and civil penalties for
unlawful opioid manufacturing and distribution, the Memo said that prosecutorial tools "should also
include the pursuit of capital punishment in appropriate cases." 16 The Memo did not propose new
legislation, but it listed several existing capital statutes relevant to drug-trafficking crimes, and
"strongly encourage[d] federal prosecutors to use these statutes, when appropriate, to aid in [the
United States'] continuing fight against drug trafficking and the destruction it causes [the] nation." 17
 AT: CP Applies Death Penalty in All Drug Related Homicides

The Attorney General is not requiring that federal prosecutors seek the death penalty
in all drug-related homicides – only that it is considered and used when appropriate
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

II. THE MEMO

The Memo appears, at first, to look like a directive to federal prosecutors to seek the death penalty in
cases involving death resulting from certain drug trafficking crimes. Indeed, that is the way that the
news media characterized it. That reading, however, misunderstands federal criminal law and Justice
Department policy in federal death penalty cases. The Memo is better [*616] understood as a reminder
to federal prosecutors about the seriousness with which the Department is taking these death-resulting
drug crimes, as well as the seriousness of the opioid crisis more broadly. But it should also be
understood as seeking to achieve one--and perhaps two--other goals: encouraging federal prosecutors
to recommend the death penalty more often in drug-related cases, and perhaps, appeasing the
"audience of one."

A. Understanding the Directive to Federal Prosecutors

The Memo says that the Attorney General "strongly encourage[s] federal prosecutors to use [the capital
drug trafficking] statutes, when appropriate, to aid in our continuing fight against drug trafficking and
the destruction it causes in our nation." 22 The statutes cited include the Violent Crimes in Aid of
Racketeering (VICAR) statute, which punishes, among other things, murder in aid of racketeering activity
(which can include drug trafficking); 23 the firearm enhancement statute, which punishes using or
carrying a firearm during or in relation to, or possession of a firearm in furtherance of, a federal drug
trafficking crime; 24 the Continuing Criminal Enterprise (CCE) statute, which targets those who are
principal administrators, organizers, or leaders of large-scale drug trafficking organizations; 25 and the
drug kingpin provisions of the Federal Death Penalty Act (FDPA), which allows the Government to seek
the death penalty for a CCE-related offense under specific conditions involving very high quantities of
drugs or attempts to kill a public officer, juror, or witness, or their family members, in order to obstruct a
prosecution or investigation into an enterprise offense. 26 Although the other statutes require that
death result from the predicate drug offense, the drug kingpin provision of the FDPA--section 3591(b)--
does not. Also, special statutory aggravating factors apply to a section 3591(b) prosecution. 27

After the Memo's release, many in the news media characterized it as urging federal prosecutors to seek
the death penalty in drug-related homicides. "Following Trump's Lead, Sessions Urges Federal
Prosecutors to Seek the [*617] Death Penalty Against Major Drug Dealers," read the headline in the Los
Angeles Times. 28 A piece in the National Review was titled, "Sessions Instructs Prosecutors to Seek
Death Penalty for Drug Dealers." 29 Salon touted the Memo this way: "Jeff Sessions to Prosecutors: Seek
Death Penalty for Drug Dealers." 30
This characterization, however, is not entirely accurate. Contrary to the interpretation implicit in these
attention-grabbing and surely well-meaning headlines, the language from the Memo cannot be a
directive to United States Attorneys to unilaterally seek the death penalty, or even to seek it after
internal office review in the district. Pursuant to the Justice Department's death penalty protocol, only
the Attorney General can authorize the government to seek the death penalty in a federal criminal
case. 31 United States Attorneys can merely recommend that the Department seek (or not seek) the
death penalty after submitting the case to the Capital Review Committee for Main Justice review. 32

Thus, the Attorney General's choice of the word "use" to describe an action related to the capital drug
trafficking statutes cannot have the meaning that has been ascribed to it. Instead, the Memo is better
understood as reminding the United States Attorneys to be cognizant of these statutes and their
importance to the Administration's policy goals with respect to the opioid crisis.

Pursuant to the Memo, then, United States Attorneys should be prepared to seek indictments for
offenses using these statutes in cases where the facts satisfy the requisite elements and to pursue
capital prosecution where the Attorney General authorizes them.

But even this is an odd reminder. First, federal prosecutors presumably are already cognizant of the
death penalty components of these offenses. And second, federal prosecutors must already submit
cases to the Attorney General's Review Committee for Capital Cases where there is the possibility
[*618] of a federal death penalty. 33 So regardless of the United States Attorney's recommendation (to
seek or not to seek), every case in which the death penalty could be sought must be submitted to Main
Justice in Washington for review. Even if the United States Attorney believes that the death penalty
should be sought, the Attorney General can refuse to authorize it. 34

As such, the Memo should not be interpreted as requiring United States Attorneys to unilaterally issue
notices of intent to seek the death penalty in drug-related prosecutions. Rather, it should be read in
conjunction with the existing Justice Department death penalty protocol, in which all death-eligible
cases receive Main Justice review and which permits only the Attorney General to authorize capital
punishment in a given case--and then, only after a careful review of the facts and circumstances
underlying the individual case. 35

B. Objectives of the Memo

Rather than serve to displace existing protocol review and arm United States Attorneys with unilateral
death-authorization powers in drug cases, the Memo was likely designed to achieve other objectives.

First, the tone of the Memo--an aggressive prosecutorial posture toward drug trafficking, generally, 36
and toward drug trafficking resulting in death, specifically--makes clear to federal prosecutors that the
Administration takes the federal death penalty seriously as an option in these cases. Moreover, the
Memo should be understood in the larger context of Administration policy on the death penalty
generally, reflecting a preference for more robust use of capital punishment. 37

[*619] With these contexts in mind, and understanding that United States Attorneys already have an
obligation to submit for review any possible federal death penalty case, United States Attorneys' Offices
may be more likely to recommend the death penalty in a greater number of drug-related cases.
Although the Attorney General need not agree with the United States Attorney's recommendation, his
decision to seek the death penalty in a given case may be less complicated where he and the United
States Attorney are in agreement about pursuing capital punishment. The Department would be
speaking with one voice about the death penalty for a particular defendant, and this could mitigate any
tensions that might otherwise exist, or be created, between Main Justice and the relevant district.

Second, the Memo may also have been designed to appease the so-called "audience of one"--the
President. 38 The President, on multiple occasions, has made no secret of his affinity for capital
punishment, though his public statements on the death penalty have at times been intemperate,
misinformed, and poorly timed. 39 He also made no secret of his disdain for Attorney General Sessions,
specifically, and for the Justice Department more generally. 40 In [*620] light of this strained
relationship, the Attorney General's Memo could, in addition to other motives, also have been a way of
regaining the confidence of the President by showing the Attorney General's steadfast commitment to
the President's publicly-stated goal of pursuing the death penalty for drug traffickers. 41 Although
Attorney General Sessions resigned at the President's request in November 2018 and was eventually
replaced by now-Attorney General William Barr, there is no indication yet that General Barr will alter the
guidance set forth in the Memo. 42

It is important, then, that the Memo does not alter the existing death penalty protocol, empower
United States Attorneys to unilaterally seek the death penalty, or signal that the Department will
uncritically pursue capital punishment in every case involving death resulting from a drug trafficking
crime. Nonetheless, consistent with the evidence suggesting that the Trump Administration has thus far
favored robust use of the federal death penalty, 43 it is sensible to view the Memo as a signal to federal
prosecutors that pursuing the death penalty in drug-related cases would be in line with general Justice
Department attitudes--and those of the President--toward capital punishment.
 AT: Will Get Applied to Low-level Distributors Who are Also Addicts

Policy could be implemented to ensure that only distributors which have sufficient
culpability are eligible for capital punishment
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

[*614] Here, then, is the import of the President's ambiguity: when the White House said that the
Justice Department "will" seek death penalties for drug traffickers "where appropriate under current
law," did that statement mean that only current federal criminal laws would be employed in doing so, or
that the death notices would have to be appropriate in light of current Justice Department standards for
seeking the death penalty? If the former is true, then this means that the President's initiative
contemplates no new statute. But if the latter is true, then this means that the Attorney General would
simply be relying on existing standards pursuant to the Department's death penalty protocol in deciding
whether to seek the death penalty in any given case, but the underlying substantive criminal law that
may authorize the death penalty would not be limited to those already in existence. Indeed, if
understood this way, it is conceivable that federal criminal law could be altered to include a new
statutory scheme that would provide the death penalty for a drug-induced homicide in which the end
user dies from voluntarily ingesting a drug transferred to him by another.

Such a change would be consistent with a more aggressive movement among federal prosecutors'
offices in addressing the opioid crisis 18 as well as the growing popularity of drug-induced homicide laws
at the state level, 19 some of which permit the imposition of the death penalty. 20 However, critics
contend that those laws are too often applied against low-level distributors who are also addicts or are
otherwise closely connected to, and simply shared [*615] the drug with, the victim. 21 Consequently,
adopting this approach would force Congress, the President, and the Justice Department to make
critical policy choices about which drug distributors would be the targets of such legislation and
eventual prosecutions, and which distributors would bear sufficient culpability to warrant capital
punishment.
 AT: Legality Issues

The counterplan could be implemented in a way consistent with the 8 th Amendment

--- it could be constitutionally proportionate
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

B. Culpability and the Eighth Amendment

In addition to creating questions about the meaning and reach of the applicable statute, any
congressional effort to create capital liability for a drug-induced death will also raise potential questions
about whether imposition of the death penalty is constitutionally proportionate, based on notions of
culpability that could be related to the degree of participation--especially in light of the victim's
voluntary conduct--or even attenuated causation.

The easier case is one in which the distributor or direct transferor of the opioid gives the drug to the
victim and the victim dies. Though easier, it is not uncomplicated because the victim has presumably
ingested the drugs voluntarily. But even more complicated questions arise when the defendant is not
the person who directly provided the opioid that produced the death. For example, assume that Walter
provides a supply of opioids to Jesse, who then distributes the drug to Jane, who dies. We have already
discussed Jesse's liability. But what about Walter's? Assume further that Walter manufactures a drug
laced with an opioid, such as fentanyl. Walter transfers the supply to Jesse, who then transfers a small
amount of his larger supply to Pete, who then distributes to Jane, who dies. Who is responsible for
Jane's death?

In each scenario, we can imagine a result in which the criminal law would be implicated. For example,
Walter and Jesse may be responsible based on principles of complicity, either for assisting the crime that
resulted in Jane's death or as co-conspirators with Pete, using conventional Pinkerton liability principles:
guilt for any substantive crime committed by any member of the [*626] conspiracy, where reasonably
foreseeable and within the conspiracy's scope. 73

Yet in both the simpler example and the more complicated one involving defendants who are somewhat
attenuated from the transaction between the direct distributor and the victim, once we include capital
punishment as part of the equation, questions of culpability arise that could trigger litigation about
whether the death penalty is a constitutionally proportionate punishment for the crime.

The Supreme Court has placed a number of categorical limits on the power of the government to
impose the death penalty where the Court has deemed that punishment to be disproportionate to the
crime or to the culpability of the individual defendant. 74 More specifically, these Eighth Amendment
proportionality principles have been applied to defendants when the prosecution is based on a theory of
felony murder or complicity. 75 These opioid-induced homicides raise potential questions about
whether the defendant is sufficiently culpable for the resulting death to justify imposition of the death
penalty. In the case of drug sellers, one may sensibly argue that they do not intend to kill--killing the
person who buys one's product is bad for business. In the case of those even further removed from the
victim (such as Walter and Jesse above), those defendants would likely argue that their culpability is
reduced by the sheer distance from the death-resulting conduct. And in both cases, the defendants
could argue that the victim's own conduct--that is, voluntarily engaging in the conduct that results in the
death--not only mitigates the offense but precludes the death penalty as a matter of constitutional law.
These are considerable problems, but they are ultimately not insurmountable obstacles.

In Enmund v. Florida, 76 the United States Supreme Court considered whether the death penalty could
be imposed upon a defendant, Earl Enmund, who was a passenger in the vehicle that was used to arrive
at and flee the scene [*627] of a murder that occurred in the course of a robbery. 77 Enmund was
prosecuted for first-degree murder, essentially on a felony murder theory combined with Florida's
complicity law. 78 Although Enmund remained in the vehicle while Sampson and Jeanette Armstrong
entered the home of two elderly victims, killing and robbing them, the jury found that Enmund was a
constructively present aider and abettor. 79 This was enough to bring him within Florida's first-degree
capital murder law as a first-degree principal. 80

Following its now-familiar two-pronged capital proportionality analysis under the Eighth Amendment,
81 the Court first surveyed the legislative landscape and concluded that the objective legislative
evidence weighed against permitting the death penalty for a defendant who does not personally kill,
intend to kill, or attempt to kill. 82 The Court then stated that, regardless of the objective evidence, in its
own judgment the death penalty is disproportionate for a defendant who does not personally kill, intend
to kill, or attempt to kill. 83 Considering Enmund's culpability only as to the underlying robbery, his
culpability did not extend to the killings perpetrated by the Armstrongs and the Eighth Amendment did
not permit the two acts to be treated the same. 84 Robbery, the Court noted, is a serious crime, but it
does not equate to murder. 85 Consequently, the Eighth Amendment bars the death penalty for those
like Enmund, whose participation in, and culpability for, the predicate crime does not extend to the
ensuing homicide. 86

Following this Eighth Amendment reasoning, one could argue that the distributor of an opioid that
results in death is culpable, only for the drug distribution but not the death. Whether criminal liability is
predicated on a traditional felony-murder theory, a "death-resulting" statute, or complicity, the
defendant can plausibly argue that his connection to the ensuing death is [*628] sufficiently attenuated
and that he lacks the kind of culpability that the Enmund Court envisioned for imposition of capital
punishment. That is, he did not personally kill, intend to kill, or attempt to kill (attempted murder, of
course, usually requires the specific intent to kill). 87

That is a problematic constitutional argument. In Enmund, discussing the penological value of

deterrence as it relates to the Eighth Amendment's coverage, the Court specifically stated that "[i]t
would be very different if the likelihood of a killing in the course of a robbery were so substantial that
one should share the blame for the killing if he somehow participated in the felony." 88 There, the Court
determined that the evidence showed only a slight chance of a homicide resulting from a robbery,
negating the deterrence value of the death penalty. 89 However, the Court appeared open to a capital
punishment regime for perpetrators of predicate crimes where an ensuing death seems more
foreseeable or likely.

Five years after Enmund, the Court decided Tison v. Arizona, 90 which further clarified the opening left
by Enmund. Brothers Ricky, Raymond, and Donald Tison helped their father, Gary, and another inmate,
Randy Greenawalt, escape from an Arizona prison by arming them with weapons smuggled into the
facility in an ice chest. 91 On the run in the Arizona desert and stranded with a disabled vehicle, the
brothers, their father, and Greenawalt flagged down a passing motorist, John Lyons, who stopped to
help and was traveling with his wife, two-year-old son, and fifteen-year-old niece. 92 After Raymond and
Donald drove the disabled car farther into the desert--with the Lyons family in the backseat--the Lyons
family was ordered to stand in the headlights of the vehicle. 93 Sometime thereafter, after John Lyons
begged for his life, and after Gary told his sons to go for water at the Lyons's vehicle, Gary and
Greenawalt killed the Lyons family with shotguns. 94

Ricky and Raymond Tison were later convicted of capital murder pursuant to a felony murder theory
(using kidnapping and robbery as predicate felonies) and a complicity theory. 95 They were sentenced
to death and [*629] challenged their death sentences pursuant to Enmund. 96 The Supreme Court
rejected the challenges. 97

According to the Court, even though the Tison brothers did not personally kill any member of the Lyons
family, nor attempt to do so, nor possess an intent to kill, Enmund did not protect them. 98 In Enmund,
the Court was concerned with actors at two distinct extremes: one, a minor actor, not at the scene of
the killing, who lacked a culpable mental state as to the killing; and the other, a felony murderer who
actually killed, intended to kill, or attempted to kill. 99 Although the Tison brothers did not personally
kill, or attempt or intend to kill, they were not minor actors without a culpable mental state. 100 Rather,
they fell into an "intermediate" 101 or "midrange" category of culpability for a felony murder: 102 they
were "major" participants in the underlying felonies, and the record "would support a finding of the
culpable mental state of reckless indifference to human life." 103

Justice O'Connor's opinion described the recklessness standard as "implicit in knowingly engaging in
criminal activities known to carry a grave risk of death," and thus, "represent[ing] a highly culpable
mental state" that may be considered in the capital sentencing decision when that conduct "causes its
natural, though also not inevitable, lethal result." 104 This combination of factors--major participation in
a felony and reckless indifference to human life, which was sufficient for malice under the common law
of murder and which the Court said "may be every bit as shocking to the moral sense as an 'intent to
kill'" 105--is sufficient to satisfy the Eighth Amendment's culpability threshold.

Enmund and Tison, of course, appear to be narrowly concerned with proportionality based on culpability
as measured by the combination of mens rea and the level of participation in the predicate conduct.
They are not really causation cases. Yet these would seem the most likely cases to cite in a situation
where the defendant's reduced culpability is measured by attenuated causation. The trouble with such
an argument, however, is that neither Enmund nor Tison, nor the other proportionality cases, indicate
what level of [*630] causation would be required to satisfy the Eighth Amendment. After all, major
participation in a felony--combined with at least reckless indifference--could encompass a culpable
defendant with some distance from the killing. Neither case appears to suggest that proximate
causation would be necessary for constitutionally sufficient culpability.

In the case of a drug-induced homicide in which the end user voluntarily ingested the drug/opioid,
Enmund and Tison could thus be read to favor the prosecution on an Eighth Amendment
proportionality challenge. First, in the case of the direct distributor of the drug, if that person is deemed
to be the "actual killer," then resort to Tison is unnecessary. Enmund, at least on its face, appears to
allow the death penalty for the one who actually kills, even if he did not intend to kill. 106 Even if the
direct distributor is not deemed to be the "actual killer," but is nevertheless criminally responsible
under the applicable criminal law on a felony murder or complicity theory, then Tison could be
applied so long as the Government can demonstrate reckless indifference. 107 The same argument
would apply to those further removed from the killing but whose participation in the underlying criminal
activity that led to it was deemed to be "major" and who similarly possessed the kind of reckless
indifference that the Tison Court described--an appreciation of the grave risk of death as a natural
consequence of the underlying criminal conduct. 108

These are, of course, case-by-case assessments of culpability and would not attach to every defendant in
a case with a drug-induced death. This is only to say that Eighth Amendment proportionality principles
would not pose an insurmountable obstacle in cases involving a limited class of defendants who had
significant roles in the underlying criminal activity that led to the death and who, likely because of the
nature of the drug/opioid, could anticipate the grave risk--if not the likelihood--of the end user's death.
109

Enmund and Tison are therefore imperfect precedents, even for a defendant who did not intend to kill
and whose causal connection to an opioid-related death is attenuated--for example, a supplier, a
distributor once-removed, or a manufacturer. And Tison's reckless indifference standard [*631] would
very often capture any defendant who supplied or trafficked in an opioid that resulted in death, even if
the death was a product of overdose, particularly if the drug was a highly potent opioid like fentanyl or a
mixture that included it. Nonetheless, those cases form an important part of an Eighth Amendment
proportionality doctrine that--though deeply flawed 110--the defense would likely consult in the case of
an unintentional drug-induced death resulting from opioid overdose for which capital punishment is
sought.

State drug-induced homicide statutes that include capital punishment have

consistently been validated by state courts
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

In doing so, Congress could look to the experience of the States and to the general principles of criminal
law. At least twenty states have drug-induced homicide statutes. 56 Of those, capital punishment is
available in multiple jurisdictions. 57 These statutes have faced legal challenges but have consistently
been validated by state courts. 58 Moreover, drug-induced homicide prosecutions--whether using
generic homicide law or legislation specific to the drug-induced death--tend to be based on well-
established criminal law principles derived from the depraved heart murder rule (i.e., an act of reckless
indifference to human life that results in death), the felony rule (death resulting from the commission or
attempted commission of a felony), voluntary and involuntary manslaughter, and principles of
complicity. 59
 AT: Federal Death Penalty Act Culpability Provisions

Congress can amend the Federal Death Penalty Act to ensure compatibility with the
counterplan
Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

C. Culpability and the Federal Death Penalty Act

Finally, even if the constitutional and statutory arguments failed to prohibit a capital drug-induced
homicide prosecution, the Government would nonetheless have to contend with the problem of
culpability and mitigation at capital sentencing.

First, even assuming that the Eighth Amendment does not forbid imposition of the death penalty as a
constitutional matter, the current FDPA scheme contains culpability provisions that might well limit
death-eligibility in a drug-induced homicide. Section 3591(a)(2) states that, in a death penalty case that
does not involve treason or espionage, the Government must prove beyond a reasonable doubt that the
defendant:

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or
intending that lethal force would be used in connection with a person, other than one of the
participants in the offense, and the victim died as a direct result of the act; or,

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk
of death to a person, other than one of the participants in the offense, such that participation in the act
constituted a reckless disregard for human life and the victim died as a direct result of the act. 111

[*632] These provisions were crafted to assure the constitutional minimum of culpability in light of
Enmund and Tison, 112 but they also go further. In the case of a drug-induced homicide, absent a
specific intent to kill or to inflict serious bodily injury, the latter two provisions would have to serve as a
basis for death-eligibility. That is problematic, for a variety of reasons.

For example, if section 3591(a)(2)(C) is the relevant theory, then "contemplating" a death must equate
to at least reckless indifference but not specific intent. Federal courts have not been clear about the
meaning of this provision, though the Committee Report on this language appears to allow for reckless
indifference 113 and at least one federal appeals court has held that "contemplating" a death means
simply "to have in view as a future event" and is something less than intent or knowledge. 114 If section
3591(a)(2)(D) is the relevant theory, then distributing a lethal drug must be an "act of violence." At least
one federal appeals court has addressed the issue and found that "act of violence" in this context
requires the use of physical force, 115 which would seem to preclude drug trafficking as the relevant
underlying conduct.
Furthermore, each provision can plausibly be read to require that the decedent be someone who did
not participate in the underlying offense. 116 If, however, the victim died from voluntarily, and
unlawfully, ingesting the drug, a court could find that the victim was a participant in the underlying
offense and therefore the Government could not satisfy either of these threshold culpability-eligibility
factors. Of course, Congress could alter this result by amending the FDPA to specifically include a drug-
induced homicide as satisfying the culpability-eligibility requirement. Indeed, if Congress were to pass a
new capital drug-induced homicide provision, this change in [*633] culpability-eligibility would be a
wise (and probably necessary) inclusion, so as to avoid these difficulties under the existing FDPA.
 AT: Mitigating Factors Prevent Death Sentence

Mitigating factors don’t necessarily preclude imposition of a death sentence

Broughton, 19 --- Associate Dean for Academic Affairs & Associate Professor of Law, University of
Detroit Mercy (Spring 2019, J. Richard Broughton, “THE OPIOID CRISIS AND THE FEDERAL DEATH
PENALTY,” 70 S.C. L. Rev. 611, JMP)

Moreover, in light of current statutory mitigators, two distinct theories could be troublesome for
prosecutors seeking capital punishment in the context of deaths resulting from an opioid overdose.

First, consistent with the principles set forth in Enmund and Tison, but going farther than those cases go,
the FDPA states that it is a mitigating factor that although the defendant was a principal in the
commission of the offense, his participation was relatively minor. 117 This mitigator accounts for the
fact that, even though the substantive criminal law holds the defendant criminally responsible, minor
participation may mitigate the offense, even if that degree of participation is insufficiently minor to
categorically forbid capital punishment pursuant to the Enmund/Tison rules. Second, the FDPA provides
a statutory mitigator where "[t]he victim consented to the criminal conduct that resulted in the victim's
death." 118 This second mitigator may seem especially salient in the case of a homicide resulting from
an overdose, where the victim voluntarily ingested the drug, but federal courts have not had occasion
to apply it in the drug-induced homicide scenario.

Indeed, there is some question as to whether this mitigator could even apply to such a situation, in
which the victim presumably does not consent to the conduct that actually kills her. In other words, if
the mitigator applies only to victim consent cases in which the victim wishes to die--for example, a
euthanasia-style killing--or in which the death-causing conduct is the object of her consent (e.g., a duel),
then it would likely not capture a drug-induced homicide scenario that did not involve a suicide. Courts
have held that section 3592(a)(7) does not apply merely because the victim consented to some illegal
activity, or even because the victim voluntarily engaged in conduct that involved risks to his or her life.
119 Rather, the victim must expressly or implicitly consent to the actual death-causing conduct. 120
Assuming the risk of death is not the same as consenting to it. 121

[*634] Nonetheless, in the universe of federal death penalty cases involving drug-related crimes in
which a death results, the drug-induced homicide case would seem to present the best possible set of
facts for application of the victim consent mitigator, at least where the victim voluntarily ingested the
drug that directly caused her death (but probably excluding cases where, for example, the transferor of
the drug misrepresented the nature or potency of the drug, or situations in which fraud or
misrepresentation might be said to negate the victim's consent). At a minimum, the force of the
argument is much stronger where the victim voluntarily engages in an act of self-harm that leads to her
death, as compared to engaging in a dangerous drug transaction but not voluntarily ingesting the deadly
drug. Even if the narrow language of section 3592(a)(7) did not strictly apply, the defense could present
evidence of the victim's voluntary conduct in mitigation using the catch-all factor pursuant to section
3592(a)(8), which permits any evidence regarding the circumstances of the offense that would
potentially mitigate the sentence. 122 Federal prosecutors should therefore be prepared to face a claim
for these kinds of mitigation in such a case.
Still, however, these are merely mitigating factors. Proving any one--or all--of them does not
necessarily preclude imposition of a death sentence. Whether any of them is sufficient to preclude the
death penalty would depend upon the weight given to the mitigator as compared to the weight given to
aggravating circumstances. If the jury determines that the aggravators "sufficiently outweigh" the
mitigators, then the death penalty remains available. 123
 CP Unpopular in Congress

Death penalty for opioids is unpopular --- sinks passage of other legislation
Jacobs & Dennis, 18 (Jennifer & Steven T., “Trump Tells Sessions He Favors Death Penalty for
Fentanyl Dealers,” https://www.bloomberg.com/news/articles/2018-08-23/trump-is-said-to-propose-
death-penalty-for-fentanyl-dealers, accessed on 4/16/2020, JMP)

Republican Senator Mike Lee of Utah, a supporter of the criminal justice overhaul who met with Kushner
Thursday on the issue, said in an interview that the fentanyl death penalty provision would not be
added to the criminal justice overhaul, because it would jeopardize passage.

Lee added that if the president wants that provision it would have to be done separately.

Lee said he sees a breakthrough on moving forward with a compromise backed by the president after
the midterm elections. A senior administration official said Trump wants to reach a deal on overhaul but
hasn’t yet committed to specifics.