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November 16, 2006

Where there's a Will, there's a way?

Riffing off the Supreme Court's recent work in in Belmontes (basics here; commentary here), George Will today has this interesting op-ed entitled "Circuit Breaker The High Court vs. Death Penalty Foolishness."  The piece begins with an attack on the Ninth Circuit: "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases."  But thereafter the piece turns into more of an attack on our modern death penalty appellate process:

How did capital punishment jurisprudence reach its current baroque condition, in which cases live longer than did the murder victims ? At the hands of judges such as Stephen Reinhardt, a residue of Jimmy Carter's presidency, who says Belmontes's "robbery gone wrong" lacked "especially heinous elements."...

Courts have enveloped the administration of capital punishment in so many arcane procedures that judicial opponents of capital punishment have vast latitude to speculate that a jury perhaps did not fully fathom its rights and duties, and hence the punishment is impermissible. And [victims] become afterthoughts.

There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries' deliberations and denies society the implementation of a punishment it has endorsed.

As regular readers know, I share many of George Will's concerns about the operation of our system of appellate capital justice.  But the solution is not a special Supreme Court to review the Ninth Circuit, but rather, as I argued here, a special Supreme Court to review state capital verdicts.

November 16, 2006 at 02:16 PM | Permalink


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No, the solution is better judges on the Ninth Circuit.


Posted by: Kent Scheidegger | Nov 16, 2006 5:00:20 PM

I, too, dislike the unending focus on death penalty cases and the opportunity costs of the Supreme Court devoting so much of its time to this category of cases. But it's very unreasonable of Will to attack Reinhardt and the 9th Circuit for this particular case. After all, the Supreme Court itself went 5-4.

And having just read both Kennedy's majority opinion and Stevens's dissent (not being a death-penalty expert, I didn't get Scalia's odd little concurrence), it's obviously a close question, given the particular factual record in this case. Reasonable people can disagree as to the outcome, especially when it involves a speculative yet fact-loaded question as "How did this jury construe this particular charge, in light of the other instructions and the arguments and evidence presented by the parties?"

Posted by: ycl | Nov 16, 2006 6:50:26 PM

No, the solution is to abolish the death penalty. The Innocence Project succeeds far too often and the system is not reliable enough to put someone to death. Further, after the Washington State report just released that found the money to build prisons could be better spent, Mr. Will may find his "punishment only, prison only" punitopia in jeopardy. Could he be attempting to reassert his will?

Posted by: George | Nov 17, 2006 1:23:31 AM

Will offers a new alternative. Instead of splitting the 9th Circuit--split the Supreme Court--one Court to handle the 9th and the other Court to handle everything else.

Posted by: Ward | Nov 17, 2006 5:05:29 AM

This case had nothing to do with the the guilt/innocence of the defendant.

Posted by: Ward | Nov 17, 2006 5:09:56 AM

In the interests of accuracy, the other case mentioned by Will at the end of his piece is Carey v. Musladin and, contrary to Will's statement, it is not a capital case.

Posted by: Jonathan Soglin | Nov 17, 2006 2:05:53 PM

Will's numbers are skewed to reach the result he wants. He uses the percentage of time the Ninth is reversed upon cert grant to mean the percentage of time they're reversed overall. For the true "reversal rate," you have to look at ALL the cases, including the cert denieds and the cert-not-soughts.

Maybe the 9th still outranks the other, I don't know. But given how many more cases the 9th does than eveyone else, I kinda doubt it.

Posted by: | Nov 18, 2006 3:15:21 PM

The anonymous poster is correct that reversal rates alone do not tell the whole story. However, I have calculated the Ninth's share of the Supreme Court workload relative to the population of the various circuits. If the caseload is even roughly proportional to the population, the Ninth's share of the docket is significantly larger than would be expected.

Posted by: Kent Scheidegger | Nov 19, 2006 9:37:33 PM

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