Scalia’s Replacement And The Death Penalty: How A Liberal Supreme Court Judge Could Affect Capital Punishment Cases

When four teenage girls showed up at the front door of Ruth Pelke’s home in Gary, Indiana, about three decades ago, she thought they wanted Bible lessons from her. It was only after she was fatally stabbed 33 times with a butcher knife that Pelke’s family knew the Bible lessons were a ruse to rob her for money to play arcade games. The fatal episode landed the group’s ringleader, Paula Cooper, on death row. It also left a void in Pelke’s family.

“At first there was just the suffering and the pain and what my family was going through,” Bill Pelke, 68, Ruth’s grandson, said Thursday during a phone interview. He said at first he agreed with Cooper's death sentence. “As time went on, and I heard more about what had happened, that pain turned to anger, and that anger turned to a desire for revenge,” he recalled.

Those feelings Pelke harbored for months eventually were released when, during a moment of silent prayer, he realized his grandmother would have been appalled by all the anger and hatred being thrown at her killer, who was just 15 at the time of the stabbing. Pelke said he came to understand the death penalty was not the way to punish criminals. “I didn’t need to see someone die to have healing,” he said from Anchorage, Alaska, where he is the president of Journey of Hope From Violence to Healing, a nonprofit organization made up of murder victims’ family members who oppose the death penalty.

Pelke hopes the death penalty will come to an end in the United States, and that maybe the U.S. Supreme Court eventually will rule it cruel and unusual punishment. With last Saturday's death of conservative Justice Antonin Scalia, that dream may be a little closer to becoming true.

The death of Scalia, whose final order was to deny a stay of execution to a Texas man sentenced to death, leaves the court split evenly on capital punishment, which Scalia consistently found constitutional. Now, as support for the death penalty wanes, President Barack Obama — who’s called executions deeply troubling — has the chance to add another liberal judge to the court, which legal experts say could lead to an increased number of death penalty cases for the court and many more dismissals.

“[Scalia’s] voice being gone, it will inevitably change the conversation,” said Douglas Berman, an Ohio State University professor who studies sentencing and the death penalty. “Whether it changes it dramatically or just at the margins, time will tell.”

The court is now equally composed of four justices who have historically had a conservative streak and four with liberal tendencies, two of whom — Sonia Sotomayor and Elena Kagan — were appointed by Obama. Scalia’s death creates the possibility the court may be split 4-4 on some decisions, including the death penalty.

In one of the most recent death penalty cases, Glossip v. Gross, the court was split 5-4 in favor of Oklahoma’s use of a three-drug cocktail for lethal injections, with Scalia joining the majority. While the court upheld the death penalty in this case, one of Glossip v. Gross’ dissenting justices, Stephen Breyer, wrote the death penalty as it stands may be unconstitutional and someone should present the issue of whether capital punishment is cruel and unusual punishment. Scalia said as recently as October he wouldn’t be surprised if the Supreme Court struck down the death penalty.

While a majority of Americans still support the death penalty, that support is at a 40-year low, an April poll from the Pew Research Center indicated. Since 2011, death penalty support has fallen 6 percent, with about 56 percent of people favoring the punishment. People still fear there is a risk an innocent person would be put to death in error.

Those who don’t support the death penalty are skeptical over how it is administered as those on death row often argue they were given the punishment based on inadequate defense, Berman said. Having a left-leaning justice could bring fewer cases in which a state attorney general is trying to overturn a lower court’s decision to throw out a death penalty.

Berman said with a 5-4 majority in favor of the death penalty, attorney generals in some cases knew they could take those lower court death penalty reversals to the Supreme Court and likely have the death penalty reinstated. But with a more liberal judge, the attorney generals would have a disincentive to bring those cases before the court.

Berman also said replacing Scalia’s strong pro-death penalty voice with a more tepid one might help sway other justices who may be on the fence to the more liberal side, such as Justice Anthony Kennedy. Kennedy voted with the liberal majority in the 2014 case Hall v. Florida, which held that borderline mentally handicapped people couldn’t be executed under a Florida law.

Being put on death row doesn’t necessarily mean a convict will be executed. There were about 2,959 people on death row as of October, with California having the most at 743, according to the Death Penalty Information Center, a Washington nonprofit that studies the death penalty.

While death row inmates in some states, such as California, are more likely to die of natural causes or suicide than actually being executed, other states regularly carry out death sentences, such as Florida, which has about 399 death row inmates. Some on death row wait years to be executed, some waiting more than 20 years.

The issue of the death penalty system’s fairness has overtaken the old argument against the punishment, which centered on the moral wrongness of the punishment, said Austin Sarat, a professor at Amherst College in Amherst, Massachusetts, who studies the death penalty. If Obama appointed a more liberal justice who has a history of death penalty opposition, that could encourage public defenders to bring death penalty cases before the court if they think they can get them tossed.

“Depending on who he nominates for the court, that could send a signal to [the] litigating community, and that signal might be this person is going to be sympathetic,” Sarat said.

Stacking the court with a judge left of Scalia could also allow more death penalty cases to be heard by the court, said Russell Wheeler, a visiting fellow at the Brookings Institution, a Washington think tank, who researches the Supreme Court. A case typically needs only four votes to be heard by the Supreme Court, and an extra voice on the side of justices like Ginsberg and Breyer could mean more death penalty cases would be accepted.

“Scalia would vote not to take those cases because he would be happy to take the imposition of the death penalty from [the court] below,” Wheeler said.

The death penalty system has gained its fair share of government critics. Former Attorney General Eric Holder has said he opposed it, harboring fears someone would be executed wrongfully, and Obama has said the way the death penalty is imposed is deeply troubling though he doesn’t oppose it philosophically.

It is still up in the air as to whether Obama will nominate a liberal judge or a more conservative one to please Republican lawmakers who have to decide whether to approve the candidate, and who already have said the next president should be the one to nominate a replacement. Robert Dunham, executive director of the Death Penalty Information Center, said he doesn’t think Obama will take a nominee’s death penalty views into consideration during the selection process as he didn’t do that when considering Sotomayor and Kagan. Other issues, such as healthcare and abortion access, would likely be taken more into consideration.

Even if Obama did suggest a more liberal judge for the court, the future outcome of death penalty cases would depend on how far left that nominee would be, said Richard Fallon, a Harvard University professor who studies constructional law and the Supreme Court. A more liberal justice would, however, influence the outcome of many death penalty cases in favor of the death row inmate, he said.

Sarat said Obama has to decide whether he wants to try and pass through a liberal justice or nominate a more moderate justice to get that person through the process. Berman, however, said Obama most likely would want a justice who shares his views on the death penalty, which he describes as skeptical of the way the punishment is imposed.

“Even a Republican nominee for the court is unlikely to be as much of a pro-death penalty firebrand as Justice Scalia,” Berman said.