tag:theconversation.com,2011:/us/topics/eighth-amendment-49268/articlesEighth Amendment – The Conversation2020-12-18T13:27:48Ztag:theconversation.com,2011:article/1463872020-12-18T13:27:48Z2020-12-18T13:27:48ZWhen families of murder victims speak at death penalty trials, their anguish may make sentencing less fair<figure><img src="https://images.theconversation.com/files/375782/original/file-20201217-17-zuqop7.jpg?ixlib=rb-1.1.0&rect=8%2C2%2C1354%2C525&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Four of the 10 federal prisoners executed this year: Wesley Purkey, killed July 16; Dustin Honken, killed July 17; Brandon Bernard, killed Dec. 10; and Alfred Bourgeois, killed Dec. 11. In some cases, survivors of their victims addressed the court.</span> <span class="attribution"><span class="source">AP Photo</span></span></figcaption></figure><p>The Trump administration is spending its final months <a href="https://www.washingtonpost.com/politics/2020/12/14/with-executions-final-days-presidency-trump-is-solidifying-his-criminal-justice-legacy/">authorizing executions</a>. <a href="https://www.americamagazine.org/politics-society/2020/12/16/federal-executions-2020-trump-239518">Ten federal death row prisoners have been killed so far this year</a>, ending a 17-year federal moratorium on applying the death penalty. </p>
<p>States, on the other hand, are <a href="https://deathpenaltyinfo.org/executions/2020">carrying out</a> fewer executions this year – seven so far – than in any year since 1983, when five people were executed. This is in part because the COVID-19 pandemic poses serious <a href="https://deathpenaltyinfo.org/news/coronavirus-pandemic-halts-executions-perhaps-for-the-foreseeable-future">health risks for the personnel responsible for putting prisoners to death</a>.</p>
<p>Among the state executions <a href="https://files.deathpenaltyinfo.org/documents/Pervis-Payne-Reprieve-TN-2020-11-06.pdf">postponed this year</a> was that of Pervis Payne, who in November was <a href="https://www.tncourts.gov/sites/default/files/docs/payne_pervis_t_order_setting_execution_filed_february_24_2020.pdf">granted a temporary reprieve by Tennessee’s governor until April 9, 2021</a>. Payne was sentenced to death in 1988 for the stabbing deaths of 28-year-old Charisse Christopher and her 2-year-old daughter. He also was convicted of assault with intent to commit first-degree murder of Christopher’s 3-year-old son, who survived.</p>
<p>Payne’s is a significant case in America’s death penalty history because, in 1991, the United States Supreme Court used it <a href="https://supreme.justia.com/cases/federal/us/501/808/#tab-opinion-1958871">to affirm</a> the right of murder victims’ families to participate in the penalty phase of capital cases. </p>
<p>Their personal testimony gives surviving family members the chance to tell judges and juries about the impact of crimes on their lives. Victim impact statements are now <a href="https://core.ac.uk/download/pdf/216736537.pdf">a regular part of the capital sentencing process</a> in both <a href="https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1183&context=articles">federal</a> and <a href="https://files.deathpenaltyinfo.org/legacy/documents/VictimImpactByState.pdf">state capital trials</a>.</p>
<p>Victim impact statements have transformed the death penalty process, my <a href="https://press.princeton.edu/books/paperback/9780691102610/when-the-state-kills">research on capital punishment</a> shows – including because of how they have been dealt with by the Supreme Court.</p>
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<a href="https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Man stands next to a sign reading that the lethal injection facility is closed due to COVID-19." src="https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/375705/original/file-20201217-17-wc9hfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">California, which has 737 people on death row, halted all executions because of the pandemic.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-photo-provided-by-california-department-of-news-photo/1130296502?adppopup=true">California Department of Corrections and Rehabilitation via Getty Images</a></span>
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<h2>Recognizing victims’ rights</h2>
<p>Throughout most of American history, victims <a href="https://doi.org/10.1111/j.1747-4469.2008.00107.x">played little role in</a>, and had little influence on, the criminal justice system. </p>
<p>In the 1960s and 1970s, an <a href="https://www.ncjrs.gov/ovc_archives/ncvrw/2005/pdf/historyofcrime.pdf">organized victims’ rights movement</a> <a href="https://harvardcrcl.org/justice-for-whom-the-dangers-of-the-growing-victims-rights-movement/">began to emerge in response to</a> the perceived pro-defendant tilt of the Supreme Court led by then-Chief Justice Earl Warren. <a href="https://www.newyorker.com/magazine/2018/05/21/the-rise-of-the-victims-rights-movement">Crime victims pushed</a> for the right to be heard at critical junctures in the prosecution of offenders, especially when sentencing decisions were made.</p>
<p>That <a href="https://justalternatives.org/victim-impact-statements-links-for-victim-survivors/">push was especially strong in murder cases</a>. In the 1970s and 1980s, several states, including Tennessee, <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ajcl23&div=19&id=&page=">adopted legislation</a> affording murder victims’ families the right to participate in capital cases.</p>
<p>Defendants in some death cases <a href="https://journals.sagepub.com/doi/10.1177/096466399700600201">challenged</a> the use of victim impact statements, asserting that the information they contained was irrelevant to sentence determinations and risked inflaming the passions of the jury.</p>
<p>In 1987, the United States Supreme Court took up one of these challenges. In <a href="https://supreme.justia.com/cases/federal/us/482/496/#tab-opinion-1957179">Booth v. Maryland</a>, it considered whether victim impact testimony violated the Eighth Amendment’s ban on “cruel and unusual punishment.” The court, in a 5-4 decision, held that it did. </p>
<p>In its <a href="https://supreme.justia.com/cases/federal/us/482/496/#tab-opinion-1957179">majority opinion</a>, Justice Lewis Powell wrote that because victim impact statements present the jury with emotionally compelling testimony, there is substantial risk of prejudice. They focus attention on factors of which the defendants were “unaware” and “divert the jury’s concern from the defendant’s background and record, and the circumstances of the crime.” </p>
<p>Such testimony, then, threatens to undermine the “reasoned decision making we require in capital cases.”</p>
<p>Four years later, following the retirement of two justices who voted against victim impact statements, the Supreme Court used Pervis Payne’s case to reconsider them. This time it found them constitutional in capital cases. </p>
<p>In an <a href="https://www.law.cornell.edu/supremecourt/text/501/808">opinion authored by Chief Justice William Rehnquist</a>, the court conceded Justice Powell’s point that victim impact statements “do not in general reflect on the defendant’s ‘blameworthiness.’” </p>
<p>But it concluded that punishment could and should be meted out differently depending on the harm that is actually done.</p>
<p>“Victim impact evidence,” Rehnquist argued, “is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. …” It ensures that the victim is not a “faceless stranger,” he wrote, and redresses the “unfairness” of criminal sentencing, which focuses solely on the life and circumstances of the offender.</p>
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<a href="https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Half a dozen people hold anti-death penalty signs on a highway." src="https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/375708/original/file-20201217-17-8oboim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Death penalty opponents near the prison where Daniel Lewis Lee, the first federal prisoner executed in 17 years, was scheduled to be killed on July 13, 2020, in Terre Haute, Indiana.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-express-opposition-to-the-death-penalty-news-photo/1255999263?adppopup=true">Scott Olson/Getty Images</a></span>
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<h2>Grief, anger and racial bias</h2>
<p>Victim impact evidence <a href="https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2148&context=bclr">has had</a> a significant impact in death penalty trials since then. </p>
<p>“[I]n the past capital sentencing pitted the defendant against the State,” wrote law professor Marcus Dubber <a href="https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1558&context=buffalolawreview">in a Buffalo Law Review article</a> published after the Supreme Court’s decision. Today, Dubber said, the defendant “encounters an even more formidable opponent” during sentencing: the victims’ grieving family.</p>
<p><a href="https://doi.org/10.1525/fsr.2006.19.1.13">Research suggests</a> that in many cases victim testimony provokes anger among jurors, compromising the rationality of their deliberations. <a href="http://dx.doi.org/10.2139/ssrn.377521">Jurors use</a> the grief expressed in victim impact statements as a “proxy for the level of defendant’s … culpability, and by implication, the perceived seriousness of the crime,” according to professors Janice Nadler and Mary Rose.</p>
<p>But not all victim testimony is treated equally. </p>
<p>Research shows that jurors tend to take the suffering of some victims’ families <a href="https://online.ucpress.edu/fsr/article-abstract/19/1/13/43111/Psychology-Weighs-in-on-the-Debate-Surrounding?redirectedFrom=fulltext">more seriously</a> than others, depending on their social status. As law professor Susan Bandes <a href="https://www.theatlantic.com/politics/archive/2016/07/what-are-victim-impact-statements-for/492443/">notes</a>, “A murder victim who met her assailant in a biker bar, for example, is valued less than a murder victim attacked while withdrawing money from an ATM machine.”</p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228907">Prosecutors tend to encourage</a> families of middle-class victims to make statements while discouraging families from other backgrounds from doing so. </p>
<p>Scholars have found that victim impact evidence <a href="https://cap-press.com/books/isbn/9781594600807/Wounds-That-Do-Not-Bind">also contributes</a> to the already substantial racial differences in capital sentencing, with juries giving more weight to the suffering of white murder victims’ families. </p>
<h2>Mourning in court</h2>
<p><a href="https://justalternatives.org/victim-impact-statements-links-for-victim-survivors/">Advocates for victims claim</a> that having the opportunity to talk about their loss promotes healing and closure.</p>
<p>But giving a victim impact statement <a href="https://www.pbs.org/newshour/nation/death-penalty-bring-closure-victims-family">often does not provide</a> a psychological benefit, according to Marilyn Armour, who directs the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Woman cries in front of a microphone and is consoled by an older man." src="https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/375712/original/file-20201217-19-15ika2u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A family member of a murder victim, consoled by her father, gives her impact statement at a capital trial in California on Aug. 16, 2013.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sharee-renee-williams-being-consoled-by-her-father-glen-news-photo/1136669300?adppopup=true">Stan Lim/Digital First Media/The Press-Enterprise via Getty Images</a></span>
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<p>Unlike churches, cemeteries or even therapists’ offices – traditional sites for mourning and expressing outrage at cruel loss – courtrooms may not be “well suited to assist with the healing process,” says Bandes. </p>
<p>When victims speak in capital cases, public scrutiny invades their private suffering. Neither judges nor jurors are trained to deal with that deeply emotional process, and “nobody ensures defendants will respond appropriately” or that victims’ families will receive the justice that they seek.</p>
<p>Not all families of murder victims <a href="https://www.bostonglobe.com/metro/2015/04/16/end-anguish-drop-death-penalty/ocQLejp8H2vesDavItHIEN/story.html">want the killer put to death</a>. In the case of Daniel Lee Lewis, the first person executed by the Trump administration, the victims’ family members <a href="https://www.arkansasonline.com/news/2020/jul/15/sentencing-baffles-lawyers-victims-kin/">spoke out against</a> his sentence and execution. </p>
<p>They had a voice in court, but did not get the justice they wanted.</p><img src="https://counter.theconversation.com/content/146387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victim impact statements give survivors a voice in the criminal justice process. But research shows their wrenching personal testimonies may not bring closure and can add racial bias into sentencing.Austin Sarat, Associate Provost and Associate Dean of the Faculty and Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465582020-09-22T12:25:03Z2020-09-22T12:25:03Z3 ways a 6-3 Supreme Court would be different<figure><img src="https://images.theconversation.com/files/359070/original/file-20200921-18-4y35pz.jpg?ixlib=rb-1.1.0&rect=0%2C33%2C4493%2C2957&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather outside the U.S. Supreme Court building as news spread of Associate Justice Ruth Bader Ginsburg's Sept. 18 death.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020-Ginsburg-TheRage/5dfdc36cccf4402d84bb21e432d8bcbe/photo">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>If the late Justice Ruth Bader Ginsburg is replaced this year, the Supreme Court will become something the country has not seen since the justices became a dominant force in American cultural life after World War II: a decidedly conservative court.</p>
<p>A court with a 6-3 conservative majority would be a dramatic shift from the court of recent years, which was more closely divided, with Ginsburg as the leader of the liberal wing of four justices and Chief Justice John Roberts as the frequent swing vote. </p>
<p>As a <a href="https://www.palgrave.com/us/book/9783030538507">scholar of the court</a> and the <a href="https://global.oup.com/academic/product/one-nation-two-realities-9780190677176?cc=us&lang=en&">politics of belief</a>, I see three things likely to change in an era of a conservative majority: The court will accept a broader range of controversial cases for consideration; the court’s interpretation of constitutional rights will shift; and the future of rights in the era of a conservative court may be in the hands of local democracy rather than the Supreme Court.</p>
<h2>A broader docket</h2>
<p>The court takes only cases the justices choose to hear. Five votes on the nine-member court make a majority, but <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1">four is the number required to take a case</a>. </p>
<p>If Roberts does not want to accept a controversial case, it now requires all four of the conservatives – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – to accept the case and risk the outcome. </p>
<p>If they are uncertain how Roberts will rule – <a href="https://www.idahostatejournal.com/opinion/columns/the-unpredictable-john-roberts/article_f9ce711c-70b2-541d-9d9c-2ad4777c85c7.html">as many people are</a> – then the conservatives may be not be willing to grant a hearing.</p>
<p>With six conservatives on the court, that would change. More certain of the outcome, the court would likely take up a broader range of divisive cases. These include many <a href="https://www.cnbc.com/2020/05/17/supreme-court-eyes-more-gun-cases-that-could-expand-2nd-amendment.html">gun regulations</a> that have been challenged as a violation of the Second Amendment, and the <a href="https://firstliberty.org/category-media/first-liberty-in-the-news/">brewing conflicts</a> between gay rights and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights</a> that the court <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn">has so far sidestepped</a>. They also include <a href="https://www.americanprogress.org/issues/women/reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/">new abortion regulations</a> that states will implement in anticipation of legal challenges and a favorable hearing at the court.</p>
<p>The three liberal justices would no longer be able to insist that a case be heard without participation from at least one of the six conservatives, effectively limiting many controversies from consideration at the high court.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The U.S. Supreme Court chambers." src="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The seat formerly occupied by the late Ruth Bader Ginsburg is draped in black, as is the bench in front of her.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtGinsburg/732652e99b9a41a39289c27e025b8c21/photo">Fred Schilling/Collection of the Supreme Court of the United States via AP</a></span>
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<h2>A rights reformation</h2>
<p>The rise of a 6-3 conservative court would also mean the end of the expansion of rights the court has overseen during the past half-century.</p>
<p>Conservatives believe constitutional rights such as freedom of religion and speech, bearing arms, and limits on police searches are immutable. But they question the expansive claims of rights that have emerged over time, such as privacy rights and reproductive liberty. These also include <a href="https://www.scotusblog.com/case-files/cases/obergefell-v-hodges/">LGBTQ rights</a>, <a href="https://www.scotusblog.com/case-files/cases/shelby-county-v-holder/">voting rights</a>, <a href="https://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/">health care rights</a>, and any other rights not specifically protected in the text of the Constitution.</p>
<p>The court has grounded several expanded rights, especially the right to privacy, in the 14th Amendment’s <a href="https://www.law.cornell.edu/wex/due_process">due process clause</a>: “…nor shall any state deprive any person of life, liberty, or property, without due process of law.” This sounds like a matter of procedure: The government has to apply the same laws to everyone without arbitrary actions. From the conservative perspective, courts have expanded the meaning of “due process” and “liberty” <a href="https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/roe-v-wade-1973/">far beyond their legitimate borders</a>, taking decision-making away from democratic majorities.</p>
<p>Consequently, LGBTQ rights will not expand further. The <a href="https://www.oyez.org/cases/2002/02-102">line of decisions</a> that made Justice Anthony Kennedy famous for his support of gay rights, <a href="https://www.oyez.org/cases/2014/14-556">culminating in marriage equality in 2015</a>, will advance no further.</p>
<p>Cases that seek to outlaw capital punishment under the Eighth Amendment’s ban on “<a href="https://www.law.cornell.edu/constitution/eighth_amendment">cruel and unusual punishments</a>” will also cease to be successful. In 2019 the court ruled that <a href="https://www.scotusblog.com/case-files/cases/bucklew-v-precythe/">excessive pain caused by a rare medical condition</a> was not grounds for halting a death sentence. That execution went forward, and further claims against the constitutionality of the death penalty will not.</p>
<p>Challenges to voting restrictions will likely also fail. This was previewed in the <a href="https://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/">5-4 decision in 2018</a> allowing Ohio to purge voting rolls of infrequent voters. The Bill of Rights <a href="https://theconversation.com/the-right-to-vote-is-not-in-the-constitution-144531">does not protect voting as a clear right</a>, leaving voting regulations to state legislatures. The conservative court will likely allow a broader range of restrictive election regulations, including <a href="https://theconversation.com/stripping-voting-rights-from-felons-is-about-politics-not-punishment-139651">barring felons from voting</a>. It may also limit the census enumeration to citizens, effectively <a href="https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/">reducing the congressional power of states that have large noncitizen immigrant populations</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman waits to receive her ballot." src="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Early voting in the November election has already begun; voting rights may be restricted by a more conservative Supreme Court.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020/0962848422434504af3ba76dccc8b0e3/photo">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<p><a href="https://theconversation.com/who-is-born-a-us-citizen-127403">Birthright citizenship</a>, which many believe is protected by the 14th Amendment, will likely not be formally recognized by the court. The court has never ruled that anyone born on U.S. soil is <a href="https://constitutioncenter.org/blog/breaking-down-the-birthright-citizenship-debate">automatically a citizen</a>. The closest it came was an 1898 ruling <a href="https://www.law.cornell.edu/supremecourt/text/169/649">recognizing the citizenship of children of legal residents</a>, but the court has been silent on the divisive question of children born of unauthorized residents.</p>
<p>The <a href="https://www.washingtonpost.com/opinions/citizenship-shouldnt-be-a-birthright/2018/07/18/7d0e2998-8912-11e8-85ae-511bc1146b0b_story.html">conservative understanding of the 14th Amendment</a> is that it had no intention of granting birthright citizenship to those who are in the country <a href="https://fedsoc.org/commentary/videos/does-the-fourteenth-amendment-guarantee-birthright-citizenship-policybrief">without legal authorization</a>.</p>
<p>Noncitizens may also find themselves with fewer rights: Many conservatives argue that the <a href="https://law.justia.com/constitution/us/amendment-14/">14th Amendment</a> requires <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/704#the-privileges-or-immunities-clause-americas-lost-clause-by-akhil-reed-amar">state governments to abide by the Bill of Rights</a> only when dealing with <a href="https://archive.thinkprogress.org/clarence-thomas-bill-of-rights-doesnt-apply-to-non-citizens-d02757866866/">U.S. citizens</a>. </p>
<p>In any case, individual rights will likely be less important than the government’s efforts to protect national security – whether fighting terrorism, conducting surveillance or dealing with emergencies. Conservatives argue that the public need for security often trumps private claims of rights. This was previewed in <a href="https://www.scotusblog.com/case-files/cases/trump-v-hawaii-3/">Trump v. Hawaii</a> in 2018, when the court upheld the travel ban imposed against several Muslim countries.</p>
<p>Not all rights will be restricted. Those protected by the original Bill of Rights will gain greater protections under a conservative court. Most notably this includes gun rights under the Second Amendment, and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights under the First Amendment</a>. </p>
<p>Until recently, the court had viewed religious rights primarily through the <a href="https://www.law.cornell.edu/wex/establishment_clause">establishment clause</a>’s limits on government endorsement of religion. But in the past decade, that has shifted in favor of the <a href="https://www.law.cornell.edu/wex/free_exercise_clause">free exercise clause</a>’s ban on interference with the practice of religion. </p>
<p>The court has upheld claims to <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">religious rights in education</a> and <a href="https://www.scotusblog.com/case-files/cases/our-lady-of-guadalupe-school-v-morrissey-berru/">religious exceptions to anti-discrimination laws</a>. That trend will continue.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man behind a counter waits on a customer." src="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his Colorado business after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a same-sex couple because of his religious beliefs.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtWeddingCakeCase/b0915d3e4f9b48f0afc8991849704e4f/photo">AP Photo/David Zalubowski</a></span>
</figcaption>
</figure>
<h2>A return to local democracy</h2>
<p>Perhaps the most important ramification of a 6-3 conservative court is that it will return many policies to local control. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>For example, overturning Roe v. Wade – which is likely but not certain under a 6-3 court – would leave the legality of abortion up to each state. </p>
<p>This will make state-level elected officials the guardians of individual liberties, shifting power from courts to elections. How citizens and their elected officials respond to this new emphasis is perhaps the most important thing that will determine the influence of a conservative court.</p><img src="https://counter.theconversation.com/content/146558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A 6-3 conservative court will hear a broader range of controversial cases, shift interpretations of individual rights and put more pressure on local democracy to make policy decisions.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1136342019-03-20T10:33:00Z2019-03-20T10:33:00ZDeath penalty moratorium in California – what it means for the state and for the nation<figure><img src="https://images.theconversation.com/files/264788/original/file-20190320-60982-1f25yf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Guards take apart the death penalty chamber at San Quentin State Prison on Wednesday, March 13, 2019</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/California-Death-Penalty-Moratorium/a6b3aa12060a4f40974fdb9786abda9b/14/0">California Department of Corrections and Rehabilitation via AP</a></span></figcaption></figure><p>Both celebration – and ire – followed <a href="https://www.sfchronicle.com/news/article/Gov-Newsom-orders-halt-to-California-s-death-13683693.php">Gov. Gavin Newsom’s announcement of a moratorium on the death penalty in California</a>.</p>
<p>California’s 737 death row inmates constitute <a href="https://deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year">more than a quarter of the national number</a>. Keeping them on death row costs <a href="https://lao.ca.gov/handouts/crimjust/2016/Death-Penalty-Initiative-Statute-051716.pdf">US$150 million a year</a> more than sentencing them to life without parole.</p>
<p>California’s death penalty has been at an impasse for decades. The state has not put anyone to death since <a href="http://graphics.latimes.com/towergraphic-see-13-men-executed-california-1978/">Clarence Ray Allen</a>’s execution in 2006. </p>
<p>The state’s use of lethal injections was <a href="https://www.aclunc.org/article/california-lethal-injection-protocol">fiercely debated for years</a>. Twice – once in <a href="https://ballotpedia.org/California_Proposition_34,_the_End_the_Death_Penalty_Initiative_(2012)">2012</a> and again in <a href="https://ballotpedia.org/California_Proposition_62,_Repeal_of_the_Death_Penalty_(2016)">2016</a> – Californians voted on measures to repeal the death penalty, and rejected them. Newsom’s step, which in many ways echoes <a href="https://www.latimes.com/politics/la-pol-ca-gavin-newsom-gay-marriage-20180515-story.html">his historical move as then-San Francisco mayor to marry same-sex couples</a> in 2004, pushes the state in a new direction. </p>
<p>As a criminal justice scholar interested in <a href="https://www.history.com/news/charles-manson-was-sentenced-to-death-why-wasnt-he-executed">death and life sentences in California</a> and in <a href="https://www.ucpress.edu/book/9780520277311/cheap-on-crime">criminal justice policy generally</a>, I see Newsom’s order as a sign that the death penalty may soon end nationwide. </p>
<p>Let me explain.</p>
<h2>Losing public support</h2>
<p>While the United States Supreme Court found the death penalty <a href="https://www.oyez.org/cases/1975/74-6257">constitutional</a> in 1976, nationwide support for the death penalty is <a href="http://www.pewresearch.org/fact-tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/">at its lowest point since the 1960s</a>. With this moratorium, <a href="https://deathpenaltyinfo.org/states-and-without-death-penalty">California joins a growing list of states who moved away from putting people to death</a>. </p>
<p>Twenty states have abolished the death penalty – eight of them recently. Four more, including California, have placed a moratorium on its use.</p>
<p><iframe id="YdRDd" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/YdRDd/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Most of these states were already refraining from executing anyone when they abolished the death penalty. In addition to this <a href="http://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-462">wave of abolitionism</a>, the death penalty is used less frequently in the 26 states that still have it, partly because drug companies increasingly refused to <a href="https://www.washingtonpost.com/news/post-nation/wp/2018/08/13/drug-companies-dont-want-to-be-involved-in-executions-so-theyre-suing-to-keep-their-drugs-out/?utm_term=.f5c3e63dec7f">provide their drugs for use in executions</a>. </p>
<p>This shift matters because attempts to challenge the legality of the death penalty rely on the Eighth Amendment, which prohibits <a href="https://constitutioncenter.org/interactive-constitution/amendments/amendment-viii">cruel and unusual punishment</a>. What counts as cruel and unusual punishment, the Supreme Court ruled in 1958, changes over time with our <a href="https://journals.sagepub.com/doi/abs/10.1177/0734016814531779?journalCode=cjra">evolving standards of decency</a>. </p>
<p>A good example of this evolution is the gradual change in approach toward extreme punishment for juveniles. </p>
<p>In 2004, the Supreme Court <a href="https://www.oyez.org/cases/2004/03-633">abolished the death penalty for juveniles</a>. Five years later, it abolished <a href="https://www.oyez.org/cases/2009/08-7412">life without parole for offenses other than homicide by juveniles</a>. It then <a href="https://www.oyez.org/cases/2011/10-9646">dismantled mandatory life without parole schemes for juveniles</a> – even those who had committed murder. Subsequently it <a href="https://www.oyez.org/cases/2015/14-280">declared these policies retroactive</a> – meaning that even people who were sentenced decades ago, when they were juveniles, can still benefit from these new rules.</p>
<p>The Supreme Court has also wavered over extreme punishment for adults. It ruled the death penalty <a href="https://www.oyez.org/cases/2007/07-343">unconstitutional for most non-homicide crimes</a> in 2007, and Justices Stephen Breyer and Ruth Bader Ginsburg have recently <a href="http://knowledgecenter.csg.org/kc/content/justice-breyer-calls-supreme-court%E2%80%94again%E2%80%94-reconsider-constitutionality-death-penalty">expressed the view that the death penalty’s constitutionality should be reconsidered</a>. When examining “evolving standards of decency,” the Supreme Court looks at state policies. In this respect, Newsom’s announcement may be of huge importance. </p>
<h2>First mover</h2>
<p>California holds a unique position as a criminal justice pioneer. Because of the sheer size of its prison population, any policy change that increases – or decreases – incarceration in California can have dramatic effects nationwide.</p>
<p>In 1976, California moved from sentences set by the legislature to “<a href="https://www.kqed.org/lowdown/775/the-law-that-help-pack-californias-prisons">indeterminate sentences</a>” that allow judges to choose from a sentencing range. The state adopted the <a href="https://lao.ca.gov/2005/3_strikes/3_strikes_102005.htm">Three Strikes law in 1994</a>. These two changes were among the important factors leading to a <a href="https://theappeal.org/a-new-power-for-prosecutors-is-on-the-horizon-reducing-harsh-sentences/">nearly 900 percent spike</a> in the California prison population between 1976 and 2006.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/264787/original/file-20190320-60995-1hxqk9g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Aswad Pop is one of 737 inmates affected by the moratorium on the death penalty in California.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/California-Death-Row/defd380a16414edeb0377e65ea8ec648/16/1">AP Photo/Eric Risberg</a></span>
</figcaption>
</figure>
<p>During the Great Recession, <a href="https://journals.sagepub.com/doi/abs/10.1177/0002716215599938">California’s lawmakers began to doubt the state could afford such a large prison population</a>. The <a href="https://law.stanford.edu/stanford-criminal-justice-center-scjc/california-realignment/">Criminal Justice Realignment, a law passed in 2011</a>, resulted in a reduction of approximately 40,000 inmates in California’s prisons. In fact, it is estimated that California’s recession-era reforms have <a href="https://journals.sagepub.com/doi/abs/10.1177/0002716215598973">accounted for much of the total nationwide decline</a> in prison population. </p>
<p>California is also <a href="https://www.amazon.com/Politics-Imprisonment-Democratic-Punishes-Offenders/dp/0195370023">unique in its political makeup</a>. The contrast between its vehemently progressive coast and deeply conservative center makes for big differences in policies from county to county – and for surprising support for punitive policies in a state that is widely seen as liberal.</p>
<p>It also means that <a href="https://www.ppic.org/content/pubs/atissue/AI_1013MBAI.pdf">legislating is often conducted by voter initiatives</a>, which are notoriously vulnerable to manipulation through misleading appeals to anger and fear. </p>
<p>California’s mercurial political climate and the size of its death row mean it might influence other states and, possibly, the Supreme Court in the future.</p>
<h2>What might happen next</h2>
<p>Several important questions loom. </p>
<p>First, would the more conservative makeup of the Supreme Court affect its willingness to reexamine the constitutionality of the death penalty? </p>
<p>Justice Kennedy, who was <a href="https://www.mcgeorge.edu/documents/Publications/10_Weisberg_ver_01_6-4-12_EIC_FINAL.pdf">especially sensitive to punishment questions</a> and <a href="https://www.scotusblog.com/2018/07/justice-kennedy-he-swung-left-on-the-death-penalty-but-declined-to-swing-for-the-fences/">skeptical of the death penalty</a>, has retired. Justice <a href="https://www.washingtonpost.com/politics/courts_law/gorsuch-casts-death-penalty-vote-in-one-of-his-first-supreme-court-cases/2017/04/21/2d9bc5dc-26a8-11e7-a1b3-faff0034e2de_story.html?utm_term=.a6eecdb16dd4">Gorsuch</a> seems to support the death penalty. The jury is still out on <a href="https://www.cnbc.com/2018/11/06/kavanaugh-seems-to-break-with-conservatives-in-death-penalty-case.html">Justice Kavanaugh’s position</a>. </p>
<p>Second, how might the moratorium impact the strategy of death penalty abolitionists in the state seeking to reform the two other types of extreme punishment – <a href="http://time.com/4998858/death-penalty-life-without-parole/">life with and without parole</a>? </p>
<p>On one hand, the distinction between the death penalty and life without parole, <a href="https://thenewpress.com/books/meaning-of-life">which was already tenuous</a>, becomes even more blurred now that no one on California’s death row will be executed. Because policy is made incrementally, it is arguably time for abolitionist states to take a hard look at their other draconian sentencing practices. </p>
<p>On the other hand, in many cases abolition and moratoria are palatable to people who are on the fence about the death penalty precisely because of the existence of an alternative punitive sentence.</p>
<p>Third, there is plenty of work to be done in California. The <a href="https://twitter.com/CAgovernor/status/1105917777494175744">powerful image of the death chamber being dismantled</a> is a reminder that behind the death penalty lies a giant machine of lengthy and expensive litigation, dilapidated housing conditions and arcane regulations, which must now be considered. With less need to fund representation in these <a href="https://www.aclu.org/other/inadequate-representation">expensive cases</a>, there might be room for other criminal justice reform.</p>
<p>Fourth, while Newsom’s announcement <a href="https://www.latimes.com/politics/la-pol-ca-death-penalty-victims-families-newsom-20190314-story.html">provoked anger and frustration in some victims, it brought relief to others</a>. In an abolitionist era, reformers should come up with solutions that treat victims with respect and award them solace and closure – albeit not necessarily through harsh punishment. </p>
<p>And finally, careful analysis of homicide rates in the next few years should be conducted in order to learn whether, as many have come to assume, <a href="https://www.ali.org/media/filer_public/3f/ae/3fae71f1-0b2b-4591-ae5c-5870ce5975c6/capital_punishment_web.pdf">capital punishment does not deter crime</a>. </p>
<p>The dismantlement of the death chamber is not the official end of the death penalty in California. But it could be the harbinger of abolition.</p><img src="https://counter.theconversation.com/content/113634/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hadar Aviram does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A law professor from the University of California, Hastings considers why a moratorium in California could be influential.Hadar Aviram, Professor of Criminal Justice and Corrections, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/968122018-05-18T11:43:11Z2018-05-18T11:43:11ZRepeal the 8th amendment to allow abortion in Ireland – this constitutional experiment has failed<p>The 8th amendment became part of the <a href="https://www.taoiseach.gov.ie/DOT/eng/Historical_Information/The_Constitution/Constitution_of_Ireland_-_Bunreacht_na_h%C3%89ireann.html">Irish Constitution</a> in 1983. It recognises the right to life of “the unborn” and says the state will “defend and vindicate” that right with due regard to the equal right to life of “the mother”. As a result, abortion is legal in Ireland only if the woman’s life is at real and substantial risk; only if she will die without it.</p>
<p>The 8th was intended to prevent abortion in Ireland. It has failed. Around 5,000 women in Ireland have abortions every year, either in England or by importing and using abortion pills (a serious criminal offence). </p>
<p>Instead of stopping abortion, what the 8th actually prevents is doctors intervening to protect the health of their patients if that would jeopardise foetal life. It prevents elected and accountable politicians from making laws to respond to real-life need. It says that as long as a woman is still alive when her child is born the state has done its duty to her and, more importantly, to her child.</p>
<p>A better law is possible: a law that strikes a more workable, and more compassionate balance between two common goods of protecting foetal life and protecting the life and health of pregnant women. But this can only be achieved if Ireland votes to repeal the 8th amendment in the referendum being held on May 25.</p>
<p>Ireland’s government has already said it intends to propose a <a href="https://health.gov.ie/wp-content/uploads/2018/03/General-Scheme-for-Publication.pdf">restricted, highly regulated system</a> for abortion care in Ireland if the people decide to repeal the 8th.</p>
<p>The plan is to allow a woman to access abortion up to 12 weeks into her pregnancy without having to justify her decision. This is not abortion on demand. A woman will not be able to simply walk into a pharmacy and buy abortion pills without a prescription. She will always have to engage with a doctor, who will have to certify that it is less than 12 weeks since the first day of her last period. The woman will also have to take a three-day waiting period.</p>
<p>In that time she will have the legal certainty she needs to focus on making her decision without having to worry about negotiating the practical challenges and isolation of illegality. She can speak with her doctor, partner, family, support network or counsellors to make the decision at hand, knowing that if it is still right for her she can access abortion in three days’ time.</p>
<p>That’s better for women than the 8th amendment. It marks a shift from using the law to compel pregnancy, to using it to support decisions about whether to remain pregnant. It’s also the only practical way to make abortion available to survivors of rape who wish to end their pregnancies and for that reason no “rape clause” is proposed. </p>
<p>“Rape clauses” are extremely problematic. In countries where they exist they require women more or less to prove – sometimes to doctors, sometimes to police officers, sometimes to judges – that they were raped. They re-traumatise women. They sometimes jeopardise criminal trials against an assailant. They rely on women reporting rape, even though we know the vast majority of women are unable or unwilling to do so. Any attempt to make abortion generally illegal but to carve out an exception for rape simply won’t work. </p>
<p>Ireland has had 35 years of a law on abortion that does not work; the government must not introduce another one.</p>
<h2>Tightly regulated</h2>
<p>Under the proposed law, the Irish state will step in and severely restrict abortion after 12 weeks. Despite what posters all over the country suggest, it’s <a href="https://www.thetimes.co.uk/article/simon-harris-six-month-claim-is-a-big-lie-5ktwhp827">categorically untrue</a> that there will be abortion without effective restriction up to six months. Once a foetus is viable it will be a crime to provide abortion; only emergency care, where there is an immediate risk to a woman’s life or immediate serious risk to her health and abortion is immediately necessary will be exempted from that general rule. After 12 weeks, and until viability, abortion will only be lawful where two doctors, one of whom is an obstetrician, certify that there is a risk to life or a serious risk to the health of the pregnant woman.</p>
<p>That is not some so-called vague mental health ground; it is the application of clinical assessment to the health of a pregnant woman. It is allowing doctors to practice medicine: providing the legal environment in which they can support a patient in understanding the risks to her health or life and deciding whether these are risks she is willing to bear. This is completely different to the law in England, which is so often called in aid by those opposed to repealing the 8th amendment, presented as a spectre of an abortion regime to come. </p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/1967/87/contents">1967 Abortion Act </a> allows for abortion in England up to 24 weeks where there is any risk to the health of a pregnant woman (physical or mental), and after that without time limit where there is a serious risk to health, a risk to life, or a diagnosis that means the foetus would be “severely handicapped”. </p>
<p>Ireland’s law would not only have far shorter time limits, more restrictive grounds, and a more rigorous process of medical certification, but it would also categorically not allow for abortion on the grounds of disability. Vitally, it would allow for termination where a woman has received a fatal diagnosis for her foetus – that is, a diagnosis that means it will die before or shortly after birth. </p>
<p>Under the 8th amendment, women in this situation cannot access termination in Ireland; they must either continue their pregnancy until the foetus dies inside them, regardless of the impact of that on their mental and physical health and that of their other children, or they must travel abroad for care. An average of two families every week find themselves in this situation, and their doctors must also bear the emotional and ethical burden of abandoning them to the medical care of another country. </p>
<p>If people feel the 8th amendment does cruelty to women who have survived rape and incest, who are at risk of catastrophic harm to their health, or who have received a fatal diagnosis for their foetus, then the only possible answer is to repeal the 8th amendment. As long as it remains in the constitution, Ireland cannot show compassion for these women. Without it, they can finally be cared for at home, in Ireland.</p><img src="https://counter.theconversation.com/content/96812/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona de Londras has collaborated with Together for Yes and Lawyers for Choice to communicate the legal reasons in favour of repeal of the 8th Amendment. She is the cofounder and coauthor of the referendum-related website <a href="http://www.aboutthe8th.com">www.aboutthe8th.com</a> </span></em></p>The almost total ban on abortion in Ireland does not work to protect women’s health.Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/911082018-02-01T14:44:40Z2018-02-01T14:44:40ZIreland’s abortion referendum: why it’s morally right to repeal the 8th amendment<figure><img src="https://images.theconversation.com/files/204437/original/file-20180201-123852-1adgrka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">PA/Tom Honan</span></span></figcaption></figure><p>Ireland is to hold a landmark referendum that could finally see its abortion laws clarified and relaxed. </p>
<p>The referendum will ask Irish citizens if the wish to repeal the <a href="https://www.ifpa.ie/Hot-Topics/Abortion/Abortion-in-Ireland-Timeline">8th amendment</a> to the Irish Constitution. Given how much suffering has been caused by the restrictive law, it’s ethically right to vote to repeal the 8th amendment, even if you’re morally opposed to abortion. </p>
<p>While abortion was already illegal, the 8th amendment created constitutional protection for a foetal right to life:</p>
<blockquote>
<p>The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.</p>
</blockquote>
<p>It has never been clear what “equal right to life” or “as far as practicable” mean due to the absence of legislation. The amendment has generally been understood to mean that abortion is only permissible when there is a risk to the life of the pregnant person.</p>
<p>Without statutory guidance, doctors have been <a href="https://www.rte.ie/news/ireland/2017/0329/863508-council-europe-abortion/">extremely cautious</a> when dealing with pregnant women. Knowing that they face a potential sanction of life imprisonment, many fail to perform terminations for women even when they meet the criterion under which it’s permissible. </p>
<p>In 2010, Michelle Harte had a terminal diagnosis and was denied access to life-prolonging treatment <a href="https://www.irishtimes.com/news/state-settled-with-cancer-patient-1.555035">and</a> lawful termination. She travelled, belatedly, to England and had to be physically helped on and off the plane. The delays resulted in greater deterioration in her health, reduced quality of life (including time with her son) and, likely, an earlier death. </p>
<p>In Savita Halappanavar’s 2012 case, a life-saving termination was <a href="http://www.independent.co.uk/news/uk/crime/medical-misadventure-verdict-on-savita-halappanavar-s-tragic-abortion-death-8580289.html">denied</a> while a foetal heartbeat could be detected after the commencement of miscarriage at 17 weeks. She died six days later of, an inquest found, sepsis, e-coli and miscarriage.</p>
<p>The 1992 [X case], which involved a 14-year-old girl who was pregnant after being <a href="http://www.thejournal.ie/twenty-years-on-a-timeline-of-the-x-case-347359-Feb2012/">raped</a>, established that “risk to life” included the risk of suicide and she was finally granted permission to travel to England for an abortion. Two referendums to overturn this interpretation of “risk to life” have failed and the people passed amendments to ensure that women could receive information about abortion services abroad and travel to use them.</p>
<p>Travelling to England for an abortion is a common, but often <a href="https://www.theguardian.com/inequality/2018/jan/30/ireland-abortion-referendum-debate-young-women">distressing and shaming</a>, experience. Not everyone can travel, though. Those with uncertain residency status, limited funds, caring responsibilities, acute medical needs or controlling partners are forced to remain pregnant and give birth. <a href="http://everydaystories.org/stories/kate/">Some</a> <a href="https://www.irishtimes.com/news/social-affairs/women-doing-very-desperate-things-in-efforts-to-abort-1.2451506">harm</a> themselves to induce miscarriage at home.</p>
<p>The <a href="http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/pdf">Protection of Life During Pregnancy Act of 2013</a> finally provided for lawful access to abortion in Ireland if there was a risk to the pregnant woman’s life. The woman must receive certification from a panel of two psychiatrists and one obstetrician if the risk is on mental health grounds. Termination must also be the only way of alleviating the risk to life.</p>
<p>Even with statutory guidance, those who meet the necessary criteria for lawful termination can be refused an abortion. <a href="https://theconversation.com/time-for-constitutional-change-on-abortion-in-ireland-30627">Ms Y</a>, an immigrant who had been raped in her home country, was traumatised and suicidal at the prospect of being pregnant as a result of the rape; her request for a termination was initially ignored until it was close to being impermissible. </p>
<p>When finally assessed, the panel deemed her life to be at risk. But rather than being allowed an abortion, the panel decided that preserving foetal life “as far as practicable” in this case meant ending the pregnancy by a C-section birth when the foetus was viable – even though Ms Y did not <a href="http://humanrights.ie/constitution-of-ireland/contesting-cruel-treatment-ruth-fletcher/">wish</a> to have a C-section. </p>
<h2>Ready for change</h2>
<p>Ireland’s constitutional protection of the “unborn” does not prevent abortions, it <a href="https://theconversation.com/restricting-access-to-abortions-only-delays-them-26773">simply delays them</a> by forcing women to travel. A more liberal framework could <a href="https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide">reduce</a> the abortion rate. <a href="http://data.un.org/Data.aspx?d=GenderStat&f=inID:12">Austria</a> (abortion available on request up to 12 weeks) has one of the lowest rates of abortion in the world.</p>
<p>While the <a href="https://www.theguardian.com/commentisfree/belief/2012/aug/08/end-of-catholic-ireland">decline</a> of the Catholic Church has contributed to changing attitudes in Ireland, and activists have campaigned for repeal for decades, the avoidable death of <a href="https://www.irishexaminer.com/viewpoints/analysis/how-the-death-of-savita-halappanavar-changed-the-abortion-debate-461787.html">Savita</a> Halappanavar in October 2012 galvanised activists and <a href="https://www.amnesty.org.uk/ireland-abortion-laws-repeal-eighth-amendment">human rights organisations</a>. The precarity of pregnancy and the general risks arising from the constitutional protection of the “unborn” could no longer be ignored. The <a href="https://www.repealeight.ie/who-we-are/">coordinated</a>, <a href="https://qz.com/776130/how-repeal-irelands-pro-choice-abortion-movement-is-changing-the-way-women-campaign-for-their-reproductive-rights/">sustained</a> and <a href="http://www.thejournal.ie/rosa-abortion-pill-bus-2404333-Oct2015/">increasingly</a> <a href="http://www.thejournal.ie/irish-artist-repeal-the-8th-abortion-campaign-2331521-Sep2015/">mainstream</a> campaign for repeal has made us all aware of the real <a href="http://everydaystories.org/">experiences</a> of women who feel termination is the best choice for them.</p>
<p>This referendum is an opportunity for all in Ireland to “<a href="http://www.thejournal.ie/repeal-referendum-date-varadkar-3822918-Jan2018/">trust women</a>” and to ensure better, safer health care for both those who want to end their pregnancies and those who wish to keep them. No one wants others to endure shame, stress, financial hardship, forced treatment, impairment or death because of a difference in moral beliefs, right?</p><img src="https://counter.theconversation.com/content/91108/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sorcha Uí Chonnachtaigh is affiliated with Lawyers4Choice and has worked with activists campaigning for broader access to abortion in Ireland. </span></em></p>This vote should be about the morality of letting women suffer.Sorcha Uí Chonnachtaigh, Lecturer in Ethics and Law, Keele UniversityLicensed as Creative Commons – attribution, no derivatives.