« Early thoughts on Begay and Burgess | Main | A taxing analysis of celebrity sentencing issue in US v. Snipes »
April 16, 2008
Lots of praise for Baze and for capital punishment federalism
I suspect the nearly 100-page Baze lethal injection ruling from SCOTUS today will be subject to a lot of criticism, in part because the array of disparate opinions provide lots of fodder for anyone who want to beat up on the Court as a whole or on just about any particular Justice. Indeed, I likely will take some pot shots at the Court's work once I have a chance to read all the Baze opinions closely. However, my first reaction to the opinion upon a quick skim is to heap lots of praise on the Court's collective work. Here's my thinking:
1. The Court collectively merits lots of credit for relatively speedy work on such an important and challenging case. I was worried state would might have to wait until June for an opinion, but it is now clear that the Justices prioritized getting this case completed so that the urgent business of the death penalty can move forward. Though lacking a clear and strong majority opinion, the Baze ruling still gives states and lower courts a lot of needed constitutional guidance on execution protocol issues.
2. In part because it is lacking a clear and strong majority opinion, the Baze decision provides a little something for everyone. Though I suspect that the anti-death-penalty crowd will be disappointed with the outcome, I suspect many will suggest the "loss" here is mitigated by lots of textured language to be found in all of the opinions. Similarly, the pro-death-penalty crowd may be disappointed that the opinions of Justices Scalia and Thomas did not carry the day, I suspect they will take comfort in Al Davis's old saying, "Just win, baby."
3. In part because the Baze decision provides a little something for everyone, the Baze decision's true impact will largely be decided by local officials (including state judges and "local" federal district judges). Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound; those local officials content with the de facto moratorium status quo can use various parts of Baze to justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court's new guidance in Baze.
4. In part because the Baze decision's true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong — namely in the hands of local officials, most of whom are elected and politically accountable. I often view the death penalty in America as an example of modern federalism at its finest: states with an affinity for the death penalty can spend (waste?) a lot of time and money on capital cases, while states less excited about this punishment can reject its use de jure or de facto in various ways.
April 16, 2008 at 11:48 AM | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e551d8b68b8833
Listed below are links to weblogs that reference Lots of praise for Baze and for capital punishment federalism:
» How Does Baze Affect Kennedy? from Sex Crimes
You might have heard that the lethal injection protocol decision, Baze, was issued today. As you would expect, the place to go for coverage of the case is Sentencing Law Policy. Since a major Eighth Amendment decision was issued on [Read More]
Tracked on Apr 16, 2008 1:30:29 PM
Comments
It will be interesting to see what happens to the litigation in Judge Frost's court and in Judge Fogel's court, as well as the federal litigation.
Posted by: federalist | Apr 16, 2008 12:11:01 PM
I had a thought while reading justice steven's concurrence. Why do capital defendants not seek a "lowest-possible sentence qualified" jury the way the state gets to seek a death-qualified jury? The state can make sure all jurors are capable of giving the death penalty (the highest authorized penalty) if they find the defendant guilty. But, assuming probation is authorized for capital murder (or one year in prison), why doesn't the defendant try to get a "probation-qualified" jury or a "one-year in prison qualified" jury? If the state can ensure the jury can impose the harshest sentence on a guilty defendant, the defendant should be permitted to ensure the jury can impose the lowest sentence on a guilty defendant. Seems only fair. Many jurors may not be willing to give a capital murderer probation, but that's the same concern prosecutors have for jurors vis a vis death.
Posted by: bruce | Apr 16, 2008 12:14:25 PM
Bruce, I think you put your finger on an interesting unresolved contradiction in the current state of our 6th amendment jurisprudence. I don’t have any experience in a non-death “jury-sentencing” state, but it would be interesting know if lawyers routinely ask jurors if they understand the parsimony principle.
Posted by: S.cotus | Apr 16, 2008 12:26:55 PM
S.cotus, the only parsimony principle I know about is in 3553(a) which obviously doesn't apply to states (or the death penalty). I don't know of a general "give a sufficient but not greater than necessary sentence" principle. There should be one. But I don't think it's implicit in any sentencing regime other than 3553(a).
Asking jurors if they agree with imposing a parsimonious sentence (while explaining to them what parsiomny means) is certainly something to be done in voir dire.
Posted by: bruce | Apr 16, 2008 12:53:03 PM
Along Bruce's lines, is there a reason defense attorneys don't, as a matter of course, move to bifurcate the guilt and penalty phases in capital trials? The psychology literature is ample that a death-qualified jury is more conviction prone.
Posted by: law student | Apr 16, 2008 12:54:14 PM
Bruce, I though the parsimony principle was a general common-law notion that was codified into 3553(a). I might be wrong on this.
Law Student, they do.
Posted by: S.cotus | Apr 16, 2008 1:01:00 PM
law student: they're always bifurcated. Unless you mean two separate juries, one jury for guilt/innocence and one death qualified jury for sentencing. Jurors have a right to be sentenced by the same jury that convicted them (though I can see how many would waive that right). If you're going to be sentenced by a jury, at least have it be the jury that's heard your side of the case and your cross-examination of teh state's witnesses. Remember the rules of evidence don't apply at sentencing.
I think "probation qualified" would be a great way to counter the effect of a "death qualified" jury which the prosecution will always seek. Kick out people who cannot, for whatever reason, give the death penalty for a murder. Okay. But also kick out people who cannot, for whatever reason, give probation for murder. That would even up the playing field a bit (assuming of course probation is an authorized sentence).
S.cotus: unfortunately I think you are in error. I've never heard of a common law parsimony principal with regards to sentencing. It's probably a prudential concern in the minds of most sentencing bodies, whether judge or jury. Any sentence longer than is warranted is a waste of taxpayer money and presumptively unfair. However, 3553(a) is sui generis and that's why everyone ignores the crap out of it.
Posted by: bruce | Apr 16, 2008 1:14:54 PM
Well, maybe not as a matter of course, since true bifurcation isn't the law in any state
Posted by: S.cotus | Apr 16, 2008 1:15:55 PM
Bruce, If I get some time, I will research it.
Posted by: S.cotus | Apr 16, 2008 1:18:35 PM
let me know if you find anything. It would be nice if there were such a common law principle.
Posted by: bruce | Apr 16, 2008 1:26:19 PM
As much as I appreciated Justice Thomas' concurrence (his best work since his dissent in Davis v. Washington, IMO), Justice Scalia does himself and the Court no favors in the scalding fit of pique that he's labeled a concurrence. Just so undignified.
Posted by: NCProsecutor | Apr 16, 2008 1:49:26 PM
No sure I agree with that, NCProsecutor. Stevens' concurrence, with its invitation to raw judical fiat, invites such a response.
Posted by: federalist | Apr 16, 2008 2:23:09 PM
God, I am such a slut for a good legal research question. The problem with my argument, is, it seems, that at common law, death and other non-jail punishments were the norm. So, the closest we can come is amercements:
However, Blackstone (Book 4, ch. 29) quotes the Magna Carta (para 14) and writes that:
A freeman is not to be amerced for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements is to be imposed save by the oath of honest and law-worthy men of the neighbourhood
Posted by: S.cotus | Apr 16, 2008 2:24:30 PM
Re: the parsimony principle.
When Congress wrote 3553(a), it was supposed to go with mandatory Guidelines, so it's hard to imagine that the "parsimony" aspect of the statute was supposed to do much work. Before getting to parsimony, the judge's duty was to crunch the numbers, rule on any departure motions, and arrive at a Guidelines range---within which, presumably, parsimony would operate.
If you look at a sentencing table, e.g. this one from 1998: http://www.ussc.gov/1998guid/Sentable.htm
the ranges are pretty narrow. At the low end, they're 0-6 months. At the high end, they're 360 to life (or in some cases, just "life" with no discretion). In the more or less dead center of the table, there are ranges like 57-71 months (4.75 to 6 years). 14 months certainly matters to someone sentenced to prison, but parsimony within that range doesn't seem like a very strong principle.
Posted by: | Apr 16, 2008 2:50:56 PM
It seems odd to me that so many people, including Prof Berman, are celebrating Baze as a triumph of federalism. If this is a constitutional question -- i.e., the 8th Amendment does or does not forbid a certain action -- then a great deal of uniformity is required. This was the rationale for incorporating the Bill of Rights; after the civil war we had grown uncomfortable with merely delegating to the states the duty of determining the scope and content of federal rights. It is, after all, the job of federal courts to define federal law. Moreover, a certain justice recently stressed this view repeatedly in a dissent. Danforth v. Minnesota (2008) (Roberts, J., dissenting) (rejecting the call to federalism as to questions of constitutional law and specifically decrying approaches that migh allow the Constitution to be "applied differently in every one of the several states.").
I suspect that Justice Roberts will be alarmed by Prof. Berman's view that Baze creates an opportunity for varying interpretations of the 8th Amendment. After all, only a couple months ago Justice Roberts wrote that a "single sovereigns's law should be applied equally to all" and noted that the Court's role is that of the "final arbiter of federal law, both as to its meaning and its reach, and the accompanying duty to ensure uniformity of that federal law."
Posted by: zarathustra | Apr 16, 2008 3:23:54 PM
"Capital punishment federalism"? Is this the official Cato Institute read?
Posted by: | Apr 16, 2008 3:38:26 PM
federalist: i don't find it so offensive that stevens said "in [his] opinion" something is unconstitutional... particularly when he relied on precedent and did not attempt to change the law. The Cruel and Unusual punishment clause was intended to apply to different things over time. While I agree with originalist philosophy in general, there are certain parts of the constitution that were meant to change over time. The 8th Amendment C&UP clause is the best example of that. This is the problem with Thomas's concurring opinion. What was cruel and unusual in the framers' time is irrelevant. However, I do agree with the idea that the constitution expressly authorizes the death penalty. If nobody can be deprived of life... without due process of law, they can be deprived of life with due process of law. While the due process clause is not a grant of power (quite the opposite), it certainly indicates that death is a possible, permissible punishment. The method of death, however, is what the 8th amendment addresses. And what is a permissible method of execution at one time may be cruel and unusual at another, later time.
The 3553(a) parsimony provision certainly becomes much more meaningful post-Booker. No question about that.
S.cotus: Was part of your post left out? seems to be missing something.
Posted by: bruce | Apr 16, 2008 3:45:27 PM
Nothing left out.
What I took away from this, was that at common law (based on Blackstone) “proportionality as to ‘magnitude’” required as to each sentence, but that the sentence could not deplete the person’s wealth if he was to continue as a member of society."
If the person's crime was really great, then people would be killed. However, our capital punishment jurisprudence is, of late, in conflict w/ the common law.
Posted by: S.cotus | Apr 16, 2008 4:35:25 PM
My fave language: "[A] condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative." So there you have it. If you can show there's a MUCH "safer" way to kill a guy, you might get some relief!
Posted by: TresEquis | Apr 16, 2008 5:05:49 PM
If this is useful to anyone, this is how the opinions break down, in terms of the page numbers of the PDF file available on the Court's site:
pp.06-29, opinion (Roberts, Kennedy, Alito)
pp.30-38, concurrence (Alito)
pp.39-56, concurring in judgment (Stevens)
pp.57-64, concurring in judgment (Scalia)
pp.65-79, concurring in judgment (Thomas)
pp.80-86, concurring in judgment (Breyer)
pp.87-97, dissent (Ginsburg, Souter)
Posted by: Matt C | Apr 16, 2008 5:14:47 PM
Doug:
Speaking only for me, this opinion could have been much, much worse. I see three major redeeming qualities:
1. the Court left the door opinion to let other lethal injection challenges to go forward;
2. Justice Stevens in concurrence publicly announced he now opposes the death penalty; and
3. the conservative wing of the court fractured in to a centrist-conservative and a hard-right bloc that may be a sign that things won't be nearly as horrid as they could be in future criminal cases before the Court.
I do wonder, however, whether Stevens' concluding paragraphs in his Baze concurrence signal he may now be readying to retire much like Blackmun's dissent in Callins ("I will no longer tinker...") signalled, in retrospect, his readiness to retire.
Posted by: karl | Apr 16, 2008 6:23:37 PM
S.cotus: Proportionality as to magnitude is technically a requirement of the 8th Amendment. Sentences have to be proportional to the crime, both capital and non-capital. It would be nice if all sentencing had a parsimony provision, even if it were just something to strive for. Of course, we see the 3553(a) parsimony provision ignored on a daily basis. So I'd have to assume any parsimony requirement, whether common law or of a constitutional order, would still be ignored. I have little faith in my fellow man.
Posted by: bruce | Apr 16, 2008 6:34:24 PM
Doug wrote: "I was worried state would might have to wait until June for an opinion, but it is now clear that the Justices prioritized getting this case completed so that the urgent business of the death penalty can move forward."
Why on earth do you deem the State's killing of its own citizens to be an "urgent business"? I would be interested in hearing an exposition on why this value of expeditious killing should be lauded.
Doug wrote: "In part because the Baze decision provides a little something for everyone, the Baze decision's true impact will largely be decided by local officials (including state judges and "local" federal district judges)."
In other words, those jurisdictions in which justice and reasoned decisions are a joke will march onwards, citing only a few choice quotes from the Baze plurality, e.g., having a "substantiantally similar" protocol to Kentucky (look for this precise phrase to be quoted by the Fifth Circuit in a case without any actual factual development), while those in which facts and reality are taken seriously may make considered judgments. And this is due process and equal protection in matters as serious as life and death. Par for our modern conservative era.
Doug wrote: "In part because the Baze decision's true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong — namely in the hands of local officials, most of whom are elected and politically accountable."
So you've abandoned your notion of a federally-controlled death penalty scheme?
law student wrote: "Along Bruce's lines, is there a reason defense attorneys don't, as a matter of course, move to bifurcate the guilt and penalty phases in capital trials? The psychology literature is ample that a death-qualified jury is more conviction prone."
It has been tried and (almost universally) rejected. Because it's a knowingly rigged process by the State (and statist jurists). And anybody with any experience in criminal justice (including your blog host) knows this.
My thoughts are that Baze was indeed a distraction. But, nonetheless, it was still decided wrongly, and obviously so. It effectively decided that a State could execute prisoners by a blindfolded firing squad. Does blindfolding the firing squad present an unnecessary risk? Yes. But will it present a "substantial risk of serious harm"? Not likely, at least so long as you let them take aim before you blindfold them. This is your constitution in action, as interpreted by modern day sadistic conservative jurists. Only in today's George Bushified America could a court--when presented squarely with the question of whether a State could subject one of its citizens to what were conceded to be wholly unnecessary risks of torture as opposed to effecting the same murderous end by a concededly humane method not presenting any such risks--rule that the State could carry on unimpeded. Another decision American historians will hang their heads in shame over.
Posted by: DK | Apr 17, 2008 12:41:26 AM
Well, in today’s jurisprudence, an hatred of “disproportionality” is incorporated into the 8th amendment. I think this is slightly different. The 8th amendment doesn’t guide sentencing determinations, but rather acts as an upper ceiling on them. (i.e. the prosecutor doesn’t argue “The 8th amendment requires that the defendant spend a week in jail for every $1,000 stolen.” )
While I agree that the practice, judges have not understood what to make of the provision, at some point in time there may be some more complete explication of exactly what it means – especially in light of Weinstein’s opinion which will have to be addressed and understood by courts from this point onward.
Posted by: S.cotus | Apr 17, 2008 10:17:09 AM
I guess it acts as a ceiling insofar as anything above a particular sentence is greater than necessary and thus cruel and unusual. It's a form of parsimony I think. But a sentence could be greater than necessary but not cruel and unusual. The 8th Amendment focuses on how much greater than necessary it is. If it's extremely greater than necessary it is arguably C&U. The Weldon Angelos case springs to mind. The judge thought the 55 year mandatory minimum sentence was excessive (and insane and cruel and unusual) for the drug charge w/ a gun involved (but not used or brandished)... yet the judge felt he was constrained by precedent that the sentence was not unconstitutional.
Posted by: bruce | Apr 17, 2008 10:41:06 AM
