By Kate Rykken

Over the next five weeks, 10 prisoners face the death penalty in Texas. Their crimes include the murders of an eleven-year-old girl, a sleeping elderly man, a middle-aged widow, and the rape and murder of a seven-year-old girl. Regardless of where these crimes were committed, they are heinous and incomprehensible. Yet, a person committing these same crimes in New York would instead spend the rest of his life in jail. Texas sentences and executes its prisoners at a rate that far outpaces every other state in the United States, while New York has outlawed the death penalty.

Since 1977, Texas has executed 414 people, executing 26 people in 2007 alone. Virginia executes at the second-highest rate, having executed 102 people since 1977. 14 states have outlawed the death penalty, including New York. An additional 21 states have not performed an execution since the start of 2007. In short, 15 states continue to use the death penalty while 35 states — more than half the nation — have not performed an execution in at least two years.

The U.S. Constitution prohibits “cruel and unusual” punishment. Yet, a murderer in Texas or Virginia may die for his crime while the same murderer in New York will instead spend the rest of his life in jail. Isn’t this difference alone “cruel and unusual?” And, although 50 percent of murder victims nationwide are white, 80 percent of the murder victims for which a prisoner is sentenced to death are white. Moreover, a white defendant who kills a black person is far less likely to receive the death penalty than a black defendant who kills a white person. Aren’t these differences, too, “cruel and unusual?” Doesn’t it matter that 130 people have been exonerated from death row, casting doubt upon at least some other convictions? Doesn’t it matter that some defendants are 18 and others are 45?

The legal answer to all of these questions is “not really.” The simplest explanation for allowing these differences is twofold. First, the “cruel and unusual” rule only sets the limits within which a state may act. Second, beyond these limitations, the Supreme Court largely defers to the criminal decisions that states make.

Generally, whether a punishment is “cruel and unusual” is determined by reference to “evolving standards of decency.” As a result, the Supreme Court looks to present-day standards to determine if a state correctly imposed a death sentence. Although one could easily argue about the pros and cons of the death penalty, the law itself is reasonably clear, at least insofar as it establishes which crimes may be punishable by death.

In applying the “cruel and unusual” prohibition, the Supreme Court has limited the death penalty to certain types of crimes. Currently, a state may not sentence a person to death who is a juvenile or who is mentally retarded. The Supreme Court has also essentially limited the death penalty to murder cases, rejecting it for the rape of an adult or child. Beyond these basic limits, the U.S. Constitution requires only that a state provide capital defendants with an attorney and separate trial and sentencing proceedings, and allow both “good,” or mitigating, and “bad,” or aggravating, evidence about the defendant during the sentencing phase.

These other requirements are often implemented differently by each state, particularly the requirement of allowing aggravating and mitigating evidence. The Supreme Court tends to allow these differences because of the second explanation mentioned above: deference. This concept is intended to give effect to the sovereignty of both the federal and state governments. In deferring to state-court decisions about sentencing, the Supreme Court often tries to respect the boundary between the federal government and the states.

In practice, this means that if a Texas court decides that a certain witness does not offer appropriate mitigating evidence, the Supreme Court will usually defer to that state court. This deference has nothing to do with whether the death penalty was actually correctly imposed in a given case and has everything to do with allowing states to enforce their criminal laws as they see fit. Depending on your point of view, the limits of the U.S. Constitution on the death penalty can be rather freeing or highly disappointing.

I fall into the latter category, but not because I disagree with the law. Instead, I am often discouraged by what actually happens in state trial court and feel that some higher court ought to hold state trial courts accountable. I am troubled by states that, like Texas, allow voters to choose judges. Texas has voted out every single appellate judge that was willing to reverse a death sentence because of an irregularity in the trial court. This leaves absolutely no one to hold a trial court accountable for its abuses.

Each state must provide capital defendants with an attorney. I am incensed when trial courts appoint their campaign donors or already overworked public defenders as the defense attorneys. The result is not only that the judicial system is used for political patronage, but also that poor defendants are represented by attorneys who are either inept or overextended. Should a person be sentenced to death by a system that fails to adequately protect defendants? No, but the right answer is not going to found in challenging the mandates of the U.S. Constitution, but in changing the criminal laws and practices in each state.

Kate Rykken Law ’09 is a third-year student in the Law School and a Managing Editor of the Cornell Law Review. Barely Legal appears alternate Mondays.