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January 11, 2006

Feingold questions Alito about death penalty

I predicted in this post that Senators Feingold or Leahy, who brought up the death penalty in the second day of CJ Roberts' confirmation hearings (details here), might bring up capital sentencing issues up during Wednesday's second round of questioning of Judge Alito.  And, according to the liveblogging at SCOTUSblog, it seems my prognosticating was spot on: Senator Feingold apparently asked some capital punishment questions. 

I do not surmise these portions of the Q & A provided any more drama than the rest of the Alito snoozefest confirmation hearings.  However, according to the liveblog, Alito said that Atkins and Roper "are precedents of the Supreme Court that are entitled to respect."  That may be news to a certain Alabama state supreme court justice (details here). 

Of course, I am still eagerly waiting for a Senator to even mention Blakely or Booker or the two non-capital sentencing questions I set out here.  I suppose I should be grateful that, even with Booker's birthday tomorrow, none of the Senators view non-capital sentencing as an issue worthy of grandstanding about.

UPDATE: At the end of the portion of the heading transcript linked here, you can read the Alito/Feingold exchange about the death penalty.  It actually is quite an interesting read for those interested in death penalty topics.  I found this concluding segment especially notable (although primarily because of the way Feingold set up his questions):

FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters [relating to the influence of politics on the administration of the death penalty] than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices. Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.

In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment.  In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed.  And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions.  Do you agree with these decisions?

ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency.  And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis.

FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty?

ALITO: My approach would be to work within the body of precedent that we have.  As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process.  And the rules in this area are quite complex.  But I would work within the body of precedent that is available.

January 11, 2006 at 05:11 PM | Permalink

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