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The Eighth Amendment, the Death Penalty, and the Supreme Court

A legal scholar explains the history of the Court’s death sentence jurisprudence and ponders its future.

February 22, 2022
Supreme Court with dark clouds
Bill Chizek

Amend­ment VI

Excess­ive bail shall not be required, nor excess­ive fines imposed, nor cruel and unusual punish­ments inflic­ted.

The most conser­vat­ive Supreme Court in a century has not yet fully put its stamp on the death penalty in Amer­ica or on condi­tions of confine­ment within pris­ons. Nor, for that matter, have the justices delivered a recent ruling on the ways in which local offi­cials control pretrial deten­tion or impose hefty fines and fees on those who get wrapped up in crim­inal justice systems. The Eighth Amend­ment, as the newly consti­tuted Roberts Court sees it, has yet to be writ­ten even though public debate over capital punish­ment, solit­ary confine­ment, and excess­ive bail often drive broader conver­sa­tions about crim­inal justice in the United States.

Some trends, however, are appar­ent. The depar­ture of Anthony Kennedy and Ruth Bader Gins­burg took from the Supreme Court two justices who suppor­ted key limit­a­tions on the death penalty and expan­ded protec­tions for pris­on­ers under the “cruel and unusual punish­ment” clause of the Eighth Amend­ment. They were replaced by two justices, Amy Coney Barrett and Brett Kavanaugh, whose lower-court records suggest broad support for capital punish­ment and little appet­ite for expan­ded Eighth Amend­ment protec­tions for pris­on­ers.

The ques­tion then is not whether the Court will limit capital punish­ment further but whether the conser­vat­ive major­ity will reverse the limit­a­tions on the death penalty that Kennedy and Gins­burg helped estab­lish in the past two decades. In 2002, for example, the Supreme Court in Atkins v. Virginia outlawed the execu­tion of intel­lec­tu­ally disabled pris­on­ers. Just two years later, the Court in Roper v. Simmons outlawed the execu­tion of people who commit­ted their capital crimes when they were juven­iles. Are the preced­ents from these cases now vulner­able to a Court that has shown a new will­ing­ness to over­turn estab­lished doctrine?

Some of the same ques­tions may also be asked of the future of the Eighth Amend­ment as it relates to the use of solit­ary confine­ment inside pris­ons. Tens of thou­sands of men and women (and juven­iles) are held daily in isol­ated deten­tion across the coun­try — complete stat­ist­ics are impossible because so many correc­tions depart­ments won’t share complete records — and many of these pris­on­ers have legit­im­ate claims that their treat­ment fails to meet the “evolving stand­ards of decency.” That’s the propor­tion­al­ity stand­ard the justices have adop­ted to eval­u­ate claims under the Eighth Amend­ment. 

For answers to some of the ques­tions, I turned to Carol Steiker, a lawyer, author, and Harvard Law School professor who has enjoyed a rare view of the Supreme Court’s recent history with the Eighth Amend­ment in general and the death penalty in partic­u­lar. As we discuss below, Steiker clerked decades ago (as did Justice Elena Kagan) for Justice Thur­good Marshall shortly before he retired from the court. More recently, Steiker co-authored a well-received book with her brother, Jordan Steiker, about the Supreme Court and capital punish­ment.

Steiker was asked five years ago, when the acclaimed film, Marshall came out, for some insight into how Justice Marshall approached Eighth Amend­ment law when capital cases came before the court. She recalled, “The death penalty was a big deal in his cham­bers. He would tell us stor­ies about early in his career when he repres­en­ted defend­ants at trial as well as on appeal in death penalty cases. Mostly they were black men accused of crimes against white victims in the South. And one thing he said often is that he always knew when he had an inno­cent client because that’s when the jury would sentence him to life impris­on­ment instead of death. And that really stuck in my head.”

Here’s Steiker with her views of where Eighth Amend­ment juris­pru­dence is likely headed under the Roberts’ court. She’s partic­u­larly intrigued by a line of reas­on­ing offered recently by Justice Neil Gorsuch that suggests the possib­il­ity of a sea change in the way the court views “evolving stand­ards of decency.” The inter­view was gently edited for length and clar­ity.

COHEN: Let me start with an abstract ques­tion. You clerked decades ago for Justice Thur­good Marshall, the only Supreme Court justice to ever repres­ent a death row pris­oner. He was, famously, an oppon­ent of capital punish­ment after seeing firsthand the racial dispar­it­ies at the heart of what Justice Harry Black­mun once called the “machinery of death.” What do you think Justice Marshall would say about the state of Eighth Amend­ment juris­pru­dence today? 

STEIKER: It’s not a hard ques­tion because Justice Marshall, along with Justice William Bren­nan, dissen­ted from every death sentence and execu­tion from 1976 — when the Court rein­stated the death penalty as consti­tu­tional in Gregg v. Geor­gia and accom­pa­ny­ing case­s­­ — to when each of them retired from the Court. And Justice Marshall would, in every dissent­ing opin­ion, begin it the same way. And I can remem­ber it because I typed it many times. The dissent would read some­thing like: Adher­ing to my view that the death penalty is in all circum­stances cruel and unusual punish­ment prohib­ited by the Eighth and Four­teenth Amend­ments to the Consti­tu­tion, I would grant the writ of certi­or­ari and vote to vacate the death sentence in this case.

And then, often, Justice Marshall and/or Justice Bren­nan would go on to say: Even if I didn’t hold this view, that the death penalty is always uncon­sti­tu­tional, I would grant review or I would rule for the defend­ant if the cases were actu­ally gran­ted. So we know that Justice Marshall along with Justice Bren­nan adhered to their views expressed in their dissents in Gregg and their major­ity opin­ions in Furman v. Geor­gia in 1972 that the death penalty was per se a viol­a­tion of human dignity. That was the way that they saw it.

That said, in the time since Gregg was decided, a number of other justices have actu­ally come over to the Bren­nan and Marshall camp. The first to do so actu­ally did so after his retire­ment from the Court. Justice Lewis Powell, who was one of the dissent­ers in Furman. He did not rule the death penalty uncon­sti­tu­tional initially in that 1972 case. He was one of the four Nixon appointees who took that view. Powell ended up writ­ing the major­ity opin­ion for the Court in McCle­s­key v. Kemp, which in 1987 rejec­ted a consti­tu­tional chal­lenge to the death penalty on the grounds of racial discrim­in­a­tion, which was well docu­mented.

And the Court said even if that study is valid, which we don’t need to rule on, McCle­s­key still loses his discrim­in­a­tion claim 5–4. Bren­nan and Marshall dissen­ted in that case obvi­ously as well. Shortly there­after Powell retired from the Court and John Jeffries, who later became the dean of the Univer­sity of Virginia School of Law, wrote an offi­cial biography of Justice Powell and inter­viewed him many times. And in the course of those inter­views Justice Powell said that he regret­ted his vote and opin­ion in McCle­s­key and that he had come to the view, a little late, that the death penalty was uncon­sti­tu­tional.

COHEN: My sense is that there was a period about a decade or so ago, when the Court was more evenly split, where there was likely more hope for capital abol­i­tion­ists or those who want to restrict the instances of capital punish­ment — we saw it with juven­ile offend­ers, we saw it with intel­lec­tual disab­il­it­ies Do you think Justice Marshall today, in 2021, with a Court that includes Justice Brett Kavanaugh and Justice Amy Coney Barrett and so forth, would think that some of those gains are going to slip away or do you think he would coun­sel patience and hope that one day there will be a 6–3 split the other way on the Court. 

STEIKER: Justice Marshall was a total impact litig­a­tion strategist. He was the one who argued Brown v. Board of Educa­tion, but that decision did not emerge full-grown from the head of Zeus. He had been litig­at­ing civil rights cases for decades so I suspect he would take the long view.  He would likely note that several other justices even­tu­ally also came around to the Marshall and Bren­nan view of capital punish­ment. Justice Harry Black­mun — another of the four Nixon dissent­ers in Furman — shortly before his retire­ment in 1994 penned a very passion­ate denial of cert in Call­ins v. Collins, where he wrote that he had come to the conclu­sion that the death penalty is uncon­sti­tu­tional per se.

It was less than a year until Justice Black­mun retired from the Court, but inter­est­ingly he star­ted writ­ing dissents in all the remain­ing death penalty cases, begin­ning with the phrase Justice Marshall had first used: “Adher­ing to my view in Call­ins v. Collins…” He was very self-consciously model­ing himself after Marshall and Bren­nan, neither of whom were still on the Court in 1994. That’s another Furman dissenter and Repub­lican appointee who changed his mind.

Then there was Baze v. Rees in 2008. Justice John Paul Stevens, the Ford appointee who was not on the Court in 1972 for Furman, but who joined the Court shortly before Gregg in 1976. Along with Justice Powell and Justice Potter Stew­art, Justice Stevens wrote the controlling plur­al­ity opin­ions in Gregg and the accom­pa­ny­ing four cases that basic­ally brought the death penalty back. This was the capital punish­ment plur­al­ity that launched the modern death penalty. But Stevens gets off the boat in 2008 and says: Now I’m convinced that the death penalty is uncon­sti­tu­tional, although unlike Justices Marshall, Bren­nan and Black­mun before him, Justice Stevens says he’ll continue to uphold the death penalty under Eighth Amend­ment juris­pru­dence out of respect for preced­ent.

And now, most recently, Justice Stephen Breyer wrote that long dissent in Glos­sip v. Gross, another lethal injec­tion case in 2015, joined by Justice Ruth Bader Gins­burg, saying that the Court should grant a global chal­lenge to consider the consti­tu­tion­al­ity of the death penalty, not actu­ally saying that they would hold that it is uncon­sti­tu­tional, but offer­ing a lengthy, lengthy opin­ion about all the prob­lems with Amer­ica’s death penalty. I think some of the argu­ments that Justice Breyer made in 2015 are differ­ent from the argu­ments that Bren­nan and Marshall made in the 1970s, and I think time has shown the power of those argu­ments.

One was the prob­lem of wrong­ful convic­tions. Justice Breyer in Glos­sip put a lot of weight on evid­ence that people were sentenced to death for crimes they did not commit. There was less evid­ence of this back in the 1970s, because we didn’t have DNA test­ing then, so that’s a power­ful new moral and legal argu­ment against capital punish­ment.

The other prob­lem is the incred­ible length­en­ing time on death row, which now aver­ages more than two decades. Justice Breyer has always said that a death sentence is not actu­ally a sentence of execu­tion but rather a sentence of very, very lengthy incar­cer­a­tion, usually decades of solit­ary confine­ment, before you are executed, if you ever are. And he’s said that is a very cruel punish­ment.

COHEN: You could argue also, though you didn’t mention him, that former Justice Anthony Kennedy softened his views on capital punish­ment. Not to the extent that he was ever a vote for its abol­i­tion, but he certainly was a crucial vote for its restric­tion — twice — and then subsequently defen­ded his view that there must be limit­a­tions. Do you see a Repub­lican appointee on the Supreme Court today that you would target as the likely candid­ate for a similar reversal along the lines of what you have described?


COHEN: I guess the only person one could conceive of having an about-face on the death penalty is Chief Justice John Roberts, but there is no indic­a­tion that that is in the cards, right? Certainly there’s noth­ing in his public writ­ing to suggest a change is near. 

STEIKER: I think the vetting process for justices has gotten much more polit­ical, and so I don’t think we are likely to see the trans­form­a­tions we saw not just with Black­mun and Stevens but with Souter and Kennedy as well. Those were Repub­lican appointees who often were tagged, later in their tenure, as being on the left wing of the Court, and who both penned multiple opin­ions express­ing concerns about the admin­is­tra­tion of capital punish­ment.

COHEN: My sense is that when Glos­sip was decided, six years ago now, there was this optim­ism among advoc­ates that things were really close to a break­through, to more restric­tions on the death penalty or even to capital abol­i­tion. Here was Breyer, asking for a more complete review, and there seemed to be real momentum toward real change. But we went from a 5­–4 major­ity then with Kennedy as the swing vote to a 6–3 conser­vat­ive major­ity, where I guess you would say that the Chief Justice is the most moder­ate of the six, but clearly no fan of restric­tions on capital punish­ment. Do you get the sense as so many others do that the capital reform window has now closed for a period? 

STEIKER: I am on record as saying that. My brother and I wrote a book titled, “Court­ing Death,” which was published (in a nice little irony) on Novem­ber 7, 2016, that would be the day before Donald Trump was elec­ted pres­id­ent. We, along with most people we knew, thought that Hillary Clin­ton had it in the bag and that Merrick Garland would be on the Court. So you’d likely have four plus two possible votes (Garland and Kennedy) to abol­ish. We predicted rather confid­ently that the Court would abol­ish the death penalty under the Eighth Amend­ment and explained how much of the doctrine to justify doing so was writ­ten by Justice Kennedy and could easily bear a read­ing that abol­ished capital punish­ment.

But of course, Merrick Garland never made it to the Supreme Court and Justices Gorsuch, Kavanaugh and Barrett did. I do think that the Court’s Eighth Amend­ment juris­pru­dence remains and, contrary to what some other people think, I do not think that this Court will extirp­ate it, root and branch. If the Eighth Amend­ment’s juris­pru­dence remains intact through this conser­vat­ive era and the prac­tice of capital punish­ment contin­ues to decline, then at some later point that juris­pru­dence prob­ably will support a Supreme Court Furman II ruling abol­ish­ing capital punish­ment of the kind we predicted would come sooner rather than later.

COHEN: Let me ask you now about some­thing else you wrote, over a decade ago, about how the devel­op­ment of Eighth Amend­ment law and advocacy influ­enced the crim­inal justice system more broadly, aside from capital punish­ment. What did you mean back then, what were you seeing that made you write that, and do you think that’s still the case? That the Eighth Amend­ment is shap­ing justice and justice reform more broadly? 

STEIKER: Oh, for sure. One way in which Eighth Amend­ment law has affected the non-capital context is the way the Court has used it in the juven­ile-life-without-parole context. Those cases are not death penalty cases, and yet the Court has used its power­ful Eighth Amend­ment juris­pru­dence, first to say that juven­iles who don’t kill people cannot get the death penalty. That was Graham v. Flor­ida in 2010. And then to say two years later, in Graham v. Miller, that even juven­iles who kill people cannot get mandat­ory life without parole sentences the way adults can.

But the biggest change has been the devel­op­ment of mitig­a­tion evid­ence. The Court has required indi­vidu­al­ized senten­cing in capital cases, which are not required in non-capital cases. We have all kinds of mandat­ory sentences in non-capital sentences: three-strikes laws and mandat­ory minim­ums and mandat­ory enhance­ments, and all that. Only capital defend­ants have a right to have their life histor­ies presen­ted. But it’s a pretty robust right and consequently capital defense lawyers have really learned how to do that and, as my brother Jordan and I have writ­ten about, that has been a big cause of the massive reduc­tion in the use of the death penalty over the last two decades. Lawyers have gotten much better at human­iz­ing their clients and explain­ing how capital crimes could have happened, and juries are reluct­ant to impose the death penalty, even in really terrible cases. The power of mitig­a­tion in capital cases has inspired many lawyers and public defender offices to invest­ig­ate and mount mitig­a­tion present­a­tions in non-capital cases as well, in an effort to combat some of the overly harsh sentences that drive mass incar­cer­a­tion.

COHEN: So, you are making the point that it’s not just a change in the sens­ib­il­it­ies of prosec­utors, which we are also seeing in some juris­dic­tions, but also robust defense work that is caus­ing a decline in capital sentences. 

STEIKER: Strong defense work has changed the procliv­it­ies of prosec­utors. Prosec­utors don’t want to lose. A lot of times defense lawyers will bring their mitig­a­tion evid­ence to prosec­utors before trial and say: “Hey, look. Look at all this. Our guy will plead to life but you have to give him life.” That’s the way a lot of this happens and a lot of it spills over to non-capital cases. So now a lot of non-capital defense offices now have mitig­a­tion teams and mitig­a­tion train­ing. Senten­cing work has always been the neglected stepchild of defense lawyers, but I think what capital advocacy has shown is how power­ful it is and how system­ic­ally it can be deployed in the non-capital area. 

COHEN: What do you make of the conser­vat­ive move­ment for the abol­i­tion of the death penalty? Do you think it’s here to stay? Do you think it can survive the broader polit­ical cleav­age we are seeing? Do you think a Repub­lican pres­id­ent would nomin­ate to the federal bench a lawyer who had argued against capital punish­ment as applied now in the U.S?

STEIKER: No, I don’t think that’s going to happen. There has always been a solid but small conser­vat­ive wing of the abol­i­tion­ist move­ment, which comes from a few places.

One, reli­gion. The Pope is against the death penalty. People who are Cath­olic don’t always follow the Pope, but he’s pretty influ­en­tial. So, people on reli­gious grounds, many of whom are other­wise conser­vat­ive, oppose the death penalty.

Two, liber­tari­ans and anti-big govern­ment advoc­ates. À la Grover Norquist, they want to “shrink big govern­ment so it is small enough to drown in a bathtub.” The death penalty is the ulti­mate failed govern­ment program: it is hugely expens­ive and fraught with error. It kind of makes sense that people with either reli­gious or liber­tarian agen­das would oppose the death penalty; George Will has opposed the death penalty for decades. 

COHEN: But do you see abol­i­tion increas­ing among conser­vat­ives? Are you track­ing that? My percep­tion is that the move­ment is grow­ing in those circles.

STEIKER: I do think that the number of people opposed to the death penalty has grown across the polit­ical spec­trum. The whole debate has shif­ted, in terms of what percent­age of the popu­la­tion is against capital punish­ment. This is the first time the Demo­crats have had an anti-death penalty plank in their national plat­form and elec­ted a pres­id­ent who came out against the death penalty. But it is not obvi­ous whether the move­ment away from the death penalty, which is a real thing, is dispro­por­tion­ately being driven by conser­vat­ives who have changed their mind or grow­ing support among liber­als. I haven’t seen research on that. 

COHEN: Now let me ask you about the future. What do you think the arrivals of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the Court mean for the future of Eighth Amend­ment juris­pru­dence? Do you agree with the view that the Court’s latest conser­vat­ive turn dampens any reas­on­able hope of new restric­tions on capital punish­ment or new Eighth Amend­ment protec­tions for capital defend­ants?

STEIKER: This is really inter­est­ing. We’ve had a little bit of a hint of where they might be going with this. It comes in the Bucklew case out of Missouri in 2019. Russell Bucklew wasn’t claim­ing that lethal injec­tion was uncon­sti­tu­tional for every­one. He was saying that he had a medical condi­tion that made it uncon­sti­tu­tional as applied to him; that he would drown in his own blood. He lost. Every­one loses on these lethal injec­tion chal­lenges, it seems.

Now, the Court usually responds to these chal­lenges by saying the same thing: “We the Supreme Court have held the death penalty to be consti­tu­tional so there has to be a way to carry it out. If defend­ants don’t like the method used by the state, those defend­ants have to point to another read­ily avail­able method to execute them.” But instead of saying that, which is the way these opin­ions tend to start, Justice Gorsuch began with the view that the death penalty is not vulner­able to consti­tu­tional attack because of origin­al­ism. That capital punish­ment is in the text of the Consti­tu­tion.

That if you can only be deprived of life, liberty or prop­erty without due process of law you can be deprived of life if there is due process of law. That the fact that the Fifth Amend­ment, the double jeop­ardy clause, says that you cannot be held twice in jeop­ardy of life and limb suggests you can be held once in jeop­ardy of life. And the Grand Jury Clause of the Fifth Amend­ment says that in capital and other­wise infam­ous cases you have to have a grand jury indict you. Gorsuch points to the fact that the death penalty is mentioned in the Bill of Rights three times and says “we’re done.” That shows that in 1789 we had the death penalty and we cannot say it is uncon­sti­tu­tional today, because it was not uncon­sti­tu­tional then.

That suggests the possib­il­ity that this Court might unwind the whole “evolving stand­ards of decency” doctrine on which the justices have relied for 50 years or more in under­stand­ing consti­tu­tional limits on the death penalty. That what is cruel and unusual punish­ment under the Eighth Amend­ment changes with the “evolving stand­ards of decency that mark the progress of a matur­ing soci­ety,” the famous line from Trop v. Dulles, which held that it was uncon­sti­tu­tional under the Eighth Amend­ment to strip someone of citizen­ship for deser­tion during World War II. 

Using the evolving stand­ards of decency doctrine, the Court has built up a whole juris­pru­dence (this is what I say they can hang a future abol­i­tion on), a whole meth­od­o­logy around this, includ­ing the cases that say you can’t have the death penalty for offend­ers with intel­lec­tual disab­il­ity, or for juven­iles or for crimes less than homicide, and that you can’t have life without parole sentences for most juven­ile offend­ers. Will the Court uproot those cases, all of them, root and branch? I find that unlikely. I think that’s where you would­n’t get Roberts; the Chief Justice would­n’t say you can throw out 50 years of preced­ent, dozens of cases.

COHEN: But that’s some­thing that is on your radar as a possib­il­ity, right? Even if the Chief Justice switches, you still have five conser­vat­ive justices hostile to death penalty chal­lenges, don’t you?

STEIKER: It’s just a possib­il­ity at this point, but an unlikely one.

COHEN: So your sense is that there will be, at best, status quo on the Eighth Amend­ment’s juris­pru­dence? That there certainly won’t be an expan­sion of the limit­a­tions on capital punish­ment with this Court but here isn’t likely to be a reversal of recent preced­ent.

For example, you don’t anti­cip­ate a ruling that says that juven­ile offend­ers can now be executed again, do you?

STEIKER: I don’t expect that ruling at all. I am not saying I think the Court will main­tain the status quo without chan­ging anything; I think it is very likely that they will nibble around the edges in lessen­ing restric­tions on the death penalty. We saw that with the Court’s shadow docket ruling on the Trump execu­tions. The Court really leaned over back­wards in favor of execu­tions, and Justice Sonia Soto­mayor wrote an anguished dissent in the last of those cases, the Higgs execu­tion, about how she felt the Court was not respect­ing its own preced­ent and not deal­ing with import­ant Eighth Amend­ment issues raised in those cases.

I don’t expect main­ten­ance of the status quo, but will the Court completely gut its 50-year preced­ent about “evolving stand­ards of decency”? No. I don’t think they are going to do that. I don’t think that the Chief Justice is the only conser­vat­ive on the Court who has some respect for preced­ent, and honestly, they have other things they want to over­rule more.

COHEN: There are always hot spots in Eighth Amend­ment juris­pru­dence. Solit­ary confine­ment right now is one and if you have any thoughts on that I would love to hear them. But where do you think the action is likely to be in Eighth Amend­ment law in the next few years? What key issues do you think are likely to make it to and be resolved by the Supreme Court. 

STEIKER: I think we are likely to see the same kinds of claims like restric­tions on juven­ile life without parole. I think most of the Eighth Amend­ment restric­tions that are plaus­ible under current prac­tice for the death penalty have largely made it to the Court.

I think one ques­tion is whether people with intel­lec­tual disab­il­it­ies have to show that they were intel­lec­tu­ally disabled before the age of 18. The clin­ical defin­i­tion of intel­lec­tual disab­il­ity requires proof of onset before the age of 18, but not every­one has or can find an IQ test before the age of 18, even when there is lots of other evid­ence that they may be intel­lec­tu­ally impaired. Then there are people who become brain damaged, and so have the equi­val­ent of intel­lec­tual disab­il­ity, but not as a devel­op­mental issue and instead as some­thing that happens in adult­hood.

I think that’s an issue that may come up. I think certainly solit­ary confine­ment and restric­tions on the use of life-without-parole sentences, whether those sentences are ever uncon­sti­tu­tional. I think lawyers will raise these because they have clients who may bene­fit from them, but as a prac­tical matter this Supreme Court is not really where you want to be with these cases right now. I think they are highly unlikely to win any exten­sions of Eighth Amend­ment protec­tions from the Supreme Court, whereas quite a few state courts may make more sense for these cases. Every state has some equi­val­ent of the Eighth Amend­ment. Some­times in exactly the same language — “cruel and unusual” punish­ment. Some­times “cruel or unusual” punish­ment. Some­times in addi­tion to or instead of a require­ment of propor­tional punish­ment.

Several of these states have inter­preted their Eighth Amend­ment analogues more broadly than the U.S. Supreme Court. Most notably, the Wash­ing­ton Supreme Court declared its own death penalty uncon­sti­tu­tional under its Eighth Amend­ment equi­val­ent. The Connecti­cut Supreme Court did the same. The Oregon Supreme Court just applied its state consti­tu­tion to conclude it would be cruel and unusual to execute those on its death row in light of a recent legis­lat­ive narrow­ing of its capital stat­ute. State consti­tu­tional litig­a­tion is where abol­i­tion­ist litig­at­ors have their best shots at narrow­ing or abol­ish­ing the death penalty right now.