« Tea-leaf analysis of the likely Rodriquez ACCA case outcome | Main | Weekend SSRN reading (for mom?) »

May 9, 2008

Spinning Baze for lower courts

Elisabeth Semel has this new piece in The National Law Journal, headlined "Fearing too much justice," which tries its darnedest to argue that Baze should be viewed by lower courts and state officials not as a green light for resuming lethal injection executions, but rather as a yellow light calling for additional caution and inquiry concerning modern execution realities:

Chief Justice John G. Roberts Jr.'s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic.  Failure of that first drug results in a "constitutionally unacceptable" risk of suffocation and excruciating pain.   On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor.  But in other states, where courts have allowed full inquiry into lethal injection protocols, it has become apparent that getting the first dose "right" is not a simple matter.....

The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record.... [But] if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze.  They may well resemble the result in Tennessee, where a federal district judge found that "due to lack of training and other issues," the state's "new protocol poses a substantial risk" that the inmate "will not be unconscious when the second and third drugs are administered."  Or trial courts may find, as did a federal judge in California, that the record, "is replete with evidence that in actual practice the [state's protocol] does not function as intended."

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one.  In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey.  If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.

Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process.  The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box.

I do not begrudge sincere efforts by death penalty opponents to argue forcefully against state killing (just as I do not begrudge other sincere "culture of life" advocacy against abortion and doctor-assisted suicide).  I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public.

Some related post-Baze posts:

May 9, 2008 at 10:44 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e5521923828833

Listed below are links to weblogs that reference Spinning Baze for lower courts:

» Blog Scan from Crime and Consequences
Bismullah To Get Status Review: Lyle Denniston at SCOTUSblog reported today that the Pentagon intends to review the status of Bismullah, an Afghan national detained at Guantanamo Bay. Bismullah's lawyers have argued for months that he has been detained... [Read More]

Tracked on May 10, 2008 12:52:04 PM

Comments

Doug,

Posts like this mark you as the intellectually honest and fair-minded (although too liberal for me) scholar that you are.

That the death penalty per se is not a violation of the Eighth Amendment is too well established by precedent to be arguable. As I noted in a comment earlier, out of 112 Supreme Court justices in the country's history, only 4 have seen it as infringing the Eighth Amendment. And it is noteworthy in that regard that Justice Stevens' separate opinion in Baze, arguing that capital punishment is indeed unconstitutional, was conspicuously NOT joined by any of the other reliably liberal justices (Souter, Ginsberg and Breyer), much less the more conservative ones.

I think Ms. Semels is whistling past the graveyard, as it were, in writing that the Court's current majority "fears" what she terms "too much justice." If fear of examining death penalty protocols were the motivation here, the Court need not have granted certiorari in Baze to begin with. Nor is it the Court's fault that the defendants failed to prove their case (as even Justice Stevens agreed had happened when he addressed the specific question before the Court).

There is fear going on in the death penalty debate, alright, but not of the sort Ms. Semels suggests. The fear seems to me to reside in the abolitionist side, which simply runs away from discussing in any length or detail the specific facts of murder cases in which unanimous juries have imposed the death penalty. The rape and murder of Jessica Lunsford is one such; the numerous spree murders of the beltway sniper is another. When I have debated abolitionists and cited these examples, the most they are willing to say is that, yes, these were terrible crimes.....and then nothing more is heard of them. Instead, the debate turns to the "bloodlusting" character of those who disagree with abolitionism -- nothwithstanding that the disagreeing contingent comprises over two-thirds of the public, not to mention presidents from Abraham Lincoln to Bill Clinton.

As you correctly suggest, what is really going on is a form of stealth abolition, in which those opposed to the death penalty seek to block its implementation, not by convincing their fellow citizens through political debate that it's immoral (which is what abolitionists really think), but by more technical, litigation-based challenges brought before the judicial branch.

Given the textual, precedential and public support for the death penalty (trends in public opinion having, however unwisely, been incorporated into Eighth Amendment analysis), no court faithful to its constitutional limitations is going to put an end to the death penalty. The abolitionists are going to have to make their case to their fellow citizens. Sometimes they will succeed (New Jersey) and sometimes they will fail (Wisconsin, where voters adopted a 2006 referendum approving capital punishment in limited cases where the conviction is confirmed by DNA evidence - this in a state that has not had capital punishment in 150 years). But one way or another, I think you're right on the mark in your observation that the real problem here is "...too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box."

Posted by: Bill Otis | May 9, 2008 12:35:55 PM

Bill - "The fear seems to me to reside in the abolitionist side, which simply runs away from discussing in any length or detail the specific facts of murder cases in which unanimous juries have imposed the death penalty."

Are you joking? What do you think the Innocence Projects are all about? It seems you have been asleep while the process of exoneration has marched on. The fact that a murder is particularly horrendous or that a jury has unanimously come to a verdict of guilt and sentence, is irrelevant when actually the accused is innocent! It is the Courts and Prosecution Services that have to be challenged about that - unfortunately the scale of error and misconduct being uncovered demonstrates that the system is so broken that whatever your view of the practice of the death penalty, the ultimate penalty of death is unacceptable in such circumstances. There is no realistic prospect of the wrongs of the past being righted for the delivery of justice to all who have been subject to it. Even the present and future, however well-meaning many parties may now be in trying to find solutions, are light years from achieving the goal. In those circumstances, Abolitionists will fight on every available level and in every available forum to eliminate the death penalty and protect the innocent. The fact that it may or may not be "constitutional" according to how you read and understand the Constitution, is irrelevant except in so far as it may be used as an argument to achieve the aim of abolition. You are right that ultimately what is at stake is the notion of moral responsibility within a healthy and progressive society. Popular "opinion" is neither the best nor most efficient measure of what constitutes moral responsibility within a society.

Posted by: peter | May 9, 2008 1:11:59 PM

I join Bill Otis in everything he said but would like to add a point about Baze. One thing that has not been much commented upon is Justice Alito's concurrence. Whereas Justice Stevens's concurrence, since it can serve as a rallying cry for death penalty opponents, is much praised in the press by all the usual suspects, the Alito concurrence may prove to be the most accurate reading of Baze. Let me quote the most important section:

"Properly understood, [the controlling opinion's] standard will not, as Justice Thomas predicts, lead to litigation that enables "those seeking to abolish the death penalty ... to embroil the States in never-ending litigation concerning the adequacy of their execution procedures." Post, at 12 (opinion concurring in judgment)."

Alito went out of his way to write a concurrence to placate the concerns of Justices Thomas and Scalia. His concurrence also rebukes Justices Stevens and Breyer for their direct and stealth assaults on the death penalty. Though Alito did not sign onto Thomas's opinion, it is clear that he is quite close to Thomas and Scalia's position. When we remember the fact that last term, Chief Justice Roberts voted most frequently with Justice Alito, (I think the scotusblog stats had them at 92% commonality) one might suggest that the Chief Justice shares Justice Alito's view as well. That's already 4 votes to reject any challenges to lethal injection. Though Kennedy didn't write an opinion, I suspect this is part of his "never say never" jurisprudence (see Vieth v. Jubelirer, Parents Involved in Community Schools, among others) where he holds, in theory, that there might be somebody with a valid claim somewhere while rejecting all such claims when they materialize.

Posted by: realist | May 9, 2008 1:16:05 PM

Doug, I think you put the burden on the wrong party when you say "I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public."

Why does it fall to death penalty opponents to ensure that the death penalty is administered fairly? Why aren't prosecutors and death penalty proponents the recipients of similar scorn when they do thing like violate Brady, eliminate jurors in violation of Batson, ignore substantial evidence that the defendant is innocent, or fail to fund an adequate defense? Aren't they, in effect, trying to achieve through the courts what they have been unable to achieve through constitutional amendment?

Enough of this singling out of abolitionists and defense attorneys. The truth is that all of the parties including those that represent the state are jointly the cause of this mess. All seek to hijack the judicial system for their ends. The abolitionists and defense attorneys are easy targets, but all of the stakeholders contribute to and benefit from the disfunction.

Posted by: dm | May 9, 2008 1:24:15 PM

Peter:

1. As I have said earlier, decisions about the death penalty, like every other important legal and social question, involve trade-offs. That innocent people are sometimes convicted (and guilty ones sometimes acquitted) is part of the package of trade-offs in criminal justice -- and would be part of those same trade-offs in any plausible alternative system.

That being the case, the question pertinent to your criticism is not whether innocents have been convicted and put on death row. The question is whether any factually innocent person has been executed in anything like recent times (say, the past 40 years). I have repeatedly asked whether abolitionists can name even one executed person whose innocence has been established by any neutral and authoritative entity (say, a court or even the ABA, which is not really neutral). No abolitionist has done so.

Of course there was the quite prominent, abolitionist-sponsored Roger Kieth Coleman innocence hoax, but hoaxes don't count.

Since there is no credible or consensus example of an innocent person's being put to death for a very, very long time, the fact that innocent people are sometimes sent to death row does not, in that particular way, differentiate it from a sentence of life imprisonment. May I take it, then, that the fact of occasional erroneous convictions commits you to oppose life imprisonment as well as capital punishment? And for that matter, isn't life imprisonment, with its hopelessness and the harsh measures needed to insure security for staff and other inmates, tantamount to a slow-motion death sentence? Should you not then also oppose life terms?

2. I said that abolitionists run away from discussing in any detail or at any length the details of particularly dreadful murders, giving as examples the Jessica Lunsford rape and murder, and the beltway sniper's just-for-kicks killing spree.

You suggest that I must have been asleep while all this discussion of the facts was going on -- and then, without missing a beat, prove my point in spades. You do this by whistling right past the Lunsford case, the sniper case, or any other of the dozens if not hundreds of horrendous murders abolitionists prefer to (and do) keep under wraps. Indeed, Jessica Lunsford counts for so little that you DO NOT EVEN MENTION HER NAME, let alone that of John Couey, the repeat child molester who abducted and raped her (and then buried her alive).

I don't blame abolitionists for wanting to avoid these facts. But avoidance of facts does not contribute to the intellectual honesty of debate. Still less does it do so when these facts are what drives the great majority of our citizens to oppose complete abolition of the death penalty. One cannot make the John Couey's of this world disappear, or intelligently evaluate their proper punishment, by refusing to discuss what they did.

3. I agree with you that popular opinion is not the best measure of what constitutes moral responsibility within a society. It is, however, the polestar of a democratic state; indeed it is the signal and defining virtue of democracy itself. That being the case (and as Doug has suggested), abolitionists cannot legitimately rely merely on their certitude or their outrage. The social contract that underlies democratic governance commits the contracting parties (i.e., us) to seek to achieve policy ends by political debate and persuading their fellow citizens, rather than by legalism, technical maneuvers and reliance on (what they take to be) elite opinion.

This is sometimes said to be an apologia for the "tyranny of the majority." Well, I'll confess that it's a defense of majority rule, and a rejection of the tyranny of the minority. I believe that these were the principal objectives of the Revolution, and, anachronistic as it may be, I, for one, still subscribe to them.

Posted by: Bill Otis | May 9, 2008 2:42:42 PM

Realist:

Thank you for your post. I see that you actually read the opinions. For this you will have to sit in the corner, and will be excluded from getting interviewed by the New York Times.

Posted by: Bill Otis | May 9, 2008 2:52:31 PM

Bill:

You write: "Since there is no credible or consensus example of an innocent person's being put to death for a very, very long time..." It seems to me that this is only the case because the legal system -- the most likely evidence of that "consensus" -- does not grant standing to those who have been executed.

If you are really interested in learning about some persuasive cases of executed innocents, I recommend: reading about Ruben Cantu (in the Houston Chronicle), Carlos De Luna (Chicago Tribune), and Cameron Todd Willingham (in that case, the best evidence is that the victims' death was the result of accident not murder).

Seriously. Read about them.

Posted by: | May 9, 2008 3:03:10 PM

dm:

1. The burden is on the abolitionists because they are the ones seeking to change existing law.

2. You ask, "Aren't [prosecutors and death penalty proponents], in effect, trying to achieve through the courts what they have been unable to achieve through constitutional amendment?"

No, they aren't. The Cruel and Unusual Clause already allows the death penalty, as more than 200 years of Supreme Court precedent establishes, most directly Gregg v. Georgia in 1976. No constitutional amendment is sought or needed.

We don't need a constitutional amendment to achieve what the Constitution already permits.

Posted by: Bill Otis | May 9, 2008 3:18:11 PM

Bill:

When the "abolitionists" -- or as I like to call them, defense attorneys -- make claims based on Brady or Batson or Ring or Crawford or indeed, Baze, they are not seeking to change the Constitution, they are seeking to enforce it. In cases where the prosecution loses such claims -- and those cases are legion -- it is the prosecution that is trying to "change" the Constitution.

Surely you're right that the 8th Amendment permits the death penalty. But as the weekly wins by defense attorneys in death penalty cases all across the country will attest, as applied, the death penalty is not always constitutional. In every one of those cases the prosecutor is trying to achieve through the courts something that he can only legitimately achieve through constitutional amendment -- namely a subversion of sacred constitutional principles. Why is this subversion only offensive to you when defense attorneys undertake it?

Posted by: dm | May 9, 2008 3:34:41 PM

To the unidentified poster:

The legal system grants standing to the heirs and the estate of an executed person to bring a wrongful death suit, and such suits have in fact been filed. Yet STILL all we see as "proof" are some tendentious newspaper articles and less-than-full (or balanced) discussions lifted from the websites of anti-death penalty organizations.

In addition, the executive branch can undertake investigations into these "executed-but-innocent" claims. This is exactly what happened in Virginia when the governor (then Mark Warner) ordered DNA testing in the Roger Kieth Coleman case. Coleman had been executed years before, and had been the subject on an innocence campaign roughly on the order of the Cantu campaign.

The abolitionist forces had been claiming for years that (1) the state would never allow DNA testing because (2) Coleman was an innocent man hustled into the death chamber by a politically motivated prosecutor and a Southern (read: backward) jury.

Both claims were complete fabrications. The state did allow DNA testing, which proved that the prosecutor and jury had "hustled" into the death chamber an exceptionally brutal and manipulative killer. So now, Roger Keith Coleman, once the poster child of abolitionism, has been consigned to the memory hole.

If you care to, you can read about the Coleman case in Part III of the concurring opinion in Kansas v. Marsh, decided by the Supreme Court two or three terms ago.

Posted by: Bill Otis | May 9, 2008 3:43:34 PM

I am familiar with the Coleman case. He was guilty. I should hope so. After all, he was executed.

Let me offer some reasons why it is so hard to "prove" someone innocent:

(1) Without DNA neither the press or the public will accept any innocence claim to the degree that you would require for proof of consensus. (This of course is problematic. Sometimes DNA is probative of guilt, sometimes not. Sometimes non-DNA evidence is probative of guilt, sometimes not. But because of our strange fascination with it, it will be hard to achieve that consensus without it.

(2) Testing DNA post-execution is nearly impossible.

Yes it happened in the Coleman case. But that is the only case. And it is not because defense attorneys haven't tried.

In most cases of executed people the state destroys the evidence. Indeed, I have worked on one death penalty case where the state destroyed the only probative DNA evidence of guilt/innocence before the defendant was executed. Yes, before. This is not a rare thing. It is commonplace.

But even when the genetic material of executed people remains available the state fights tooth and nail to prevent testing. This isn't surprising. After all, the state often fights tooth and nail to prevent testing when the defendant is still alive.

But it is much, much harder to get the testing after the defendant is dead. It's so hard in fact that other than in Coleman's case (wherein abolitionists fought for many years to obtain testing), it's never been granted. DNA testing statutes don't allow it.

Also, this nonsese about wrongful death suits is fanciful. No one has the time or money to bring them. They are never successful. And that's not because they lead to a thorough testing of the evidence. Perhaps abolitionists should use them more often, but it's not like they are being used and failing on the merits.

And seriously, read the cases I suggest. These so called "tendentious" newspaper articles are admittedly not the "proof" that I wish they were. But I'm not some crackpot. I've worked in this world for some time. Some innocence claims I reject. Others I believe. Others I'm not so sure. Give the cases I mentioned a fair hearing. Unless of course you've already got your mind made up....

Posted by: | May 9, 2008 3:59:11 PM

Bill - we can only pick and choose a micro sample or two from the huge number of cases available, to dissect and argue about. It is necessary to accept the bigger picture for what it shows is the level of confidence we should rightly have in the system as a whole. When initiatives like the Innocence Project start finding that instances of wrongful conviction, be it for wrong identification, or for junk science, or for prosecutorial misconduct, or for willful misconstruction of the constitution, are so rare as to be truly exceptional - because the deficiencies of practices in all parts of the justice system have been addressed to the levels of best national and international practice - then, and only then, will I accept your concept of acceptable trade-off - but NEVER where innocent life is part of the trade. Part of the problem today is that the evidence coming from the Innocence Project and Commissions shows such massive potential of liability that many legislatures are happier burying their heads in the sand or looking the other way.

Posted by: peter | May 9, 2008 4:11:46 PM

dm:

1. An abolitionist is a person who wants to ABOLISH the death penalty, not enforce it when he's satisfied that the standards of Brady, Ring, Baze et al. have been satisfied. An abolitionist therefore must show that the death penalty is NEVER proper, even in the hundreds of cases where all legally required standards have been met. And this is where they have failed with the public -- justifiably so, in my view.

2. You say, "Surely you're right that the 8th Amendment permits the death penalty. But as the weekly wins by defense attorneys in death penalty cases all across the country will attest, as applied, the death penalty is not always constitutional."

I disagree. The death penalty per se IS constitutional, even while the procedural safeguards the Constitution requires -- Brady and the like -- must of course be met before it legally can be imposed. But this does not differentiate the death penalty from any other sentence for a felony. Brady and other procedural safeguards must be followed in those instances as well.

When in the small minority of cases they aren't, it doesn't mean that the prosecutor is trying to "subvert the Constitution." Courts themselves disagree all the time about what Brady requires (indeed, disagreement among the lower courts on this and other issues is one of the principal grounds upon which the Supreme Court decides to review a case). Being a defense lawyer, you know better than most people commenting here that to make a reasonable although ultimately losing argument about a question of criminal procedure is not attempting to "subvert the Constitution." Undertaking mass challenges in an attempt to get the judicial branch itself to effectively nullify the democratic will is a very different matter.

Posted by: Bill Otis | May 9, 2008 4:19:23 PM

Who are these abolitionists, Bill, who as you say have "failed the public." I mean seriously. Other than defense attorneys out there trying to help people on death row -- almost always one case at a time -- who are they?

The movement is mostly lonely diehards who stand in small groups on streetcorners with handmade signs. And single women from northern Europe. They hardly seem like a powerful lobby. Advocating on behalf of those found guily of murder.

The thing is, abolitionists shouldn't have to prove that the death penalty is always wrong. They should only have to show that its woefully bad public policy, and lord knows, anyone who bothers to inquire knows that. But politicans are loathe to be labeled soft on crime. Blah, blah, blah.

So, the main people that I see out there actually doing anything serious on behalf of abolition are defense attorneys. Which is to say they are trying to show Americans that if they actually provide each and every person on death row a fair trial -- not one with a sleeping defense counsel, not one where the jury is racially rigged, not one where the prosecution violates any number of constitutional protections -- the death penalty will end up being way too costly.

And the truth is, when you get down to it, there are a lot of cases out there with a serious constitutional violation. Of the 1100 people who've been executed, I wonder how many would be alive today if they could benefit from the law as it exists presently. Post-Atkins, post-Penry, post-Wiggins, etc.

So enough with this right wing frame of abolitionists as bogeymen. Other than defense attorneys, there simply aren't very many abolitionists (at least not in this country.) And of course they're fighting through the courts. That's their job. And they're fighting for the Constitution. Just like prosecutors are. And a surprising amount of the time, judges vindicate the defense view.

The fact that this leads to fucked up results is not the abolitionists fault. It reflects the fact that while American voters support the death penalty, when they are required to support it in a way that grants defendants their full constitutional protections, American voters seem less attentive.

Posted by: | May 9, 2008 5:00:15 PM

Bill Otis wrote: "That the death penalty per se is not a violation of the Eighth Amendment is too well established by precedent to be arguable. As I noted in a comment earlier, out of 112 Supreme Court justices in the country's history, only 4 have seen it as infringing the Eighth Amendment."

Not really. It was, after all, ruled unconstitutional pursuant to the Eighth Amendment in 1972. The per curiam in Furman held: "The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." That's five right there.

Bill Otis wrote: "And it is noteworthy in that regard that Justice Stevens' separate opinion in Baze, arguing that capital punishment is indeed unconstitutional, was conspicuously NOT joined by any of the other reliably liberal justices (Souter, Ginsberg and Breyer), much less the more conservative ones."

I'm not sure how the fact that the Court is currently littered with death penalty supporters has relevance to the constitutional issue.

Bill Otis wrote: "There is fear going on in the death penalty debate, alright, but not of the sort Ms. Semels suggests. The fear seems to me to reside in the abolitionist side, which simply runs away from discussing in any length or detail the specific facts of murder cases in which unanimous juries have imposed the death penalty."

We can discuss that. Do you want to talk about the guys on death row whose crimes were the result of their mental illnesses left untreated by your politics; the guys on death row whose crimes were the result of their mental retardation left untreated by your politics; the guys on death row whose crimes were the result of their unstable, poverty-stricken youth created by your politics; or the guys on death row whose crimes were the result of drug addiction created and left untreated by your politics? We can also talk about the guys on death row who fired only after first being fired upon, the guys who were just there when a murder happened, and even the guys on death row who committed no murder at all (of which there are a not insubstantial number). In the course of this, we can talk about the gruesome nature of some of the crimes (most aren't that grisly, truth be told), as long as we keep in mind while we do that they could have been prevented had it not been for politics like yours that actively seeks to deprive a segment of the population of basic human needs like physical and mental health care, stable housing, education, and a consistent paycheck. Those politics do wonders for keeping the working class's bargaining position vis-a-vis employers weak, to be sure, but boy do they wreak havoc--including grisly murders--on other people's lives.

Bill Otis wrote: "The rape and murder of Jessica Lunsford is one such; the numerous spree murders of the beltway sniper is another. When I have debated abolitionists and cited these examples, the most they are willing to say is that, yes, these were terrible crimes.....and then nothing more is heard of them."

I've got plenty more to say. In fact, I hold you (and many like you) responsible for them, and we can further discuss your role and responsibility for these tragedies if you like.

Bill Otis wrote: "Instead, the debate turns to the "bloodlusting" character of those who disagree with abolitionism -- nothwithstanding that the disagreeing contingent comprises over two-thirds of the public, not to mention presidents from Abraham Lincoln to Bill Clinton."

Bill Clinton is a Southern conservative. Lincoln was a white supremacist from the civil war era. Again, these are the kinds of people responsible for the politics that cause murder. Support for the death penalty is a means to channel (deflect) the community outrage at these policies' natural results. (Talking about Lincoln in this context is pretty strange, but you brought him up, not me.)

Bill Otis wrote: "As you correctly suggest, what is really going on is a form of stealth abolition, in which those opposed to the death penalty seek to block its implementation, not by convincing their fellow citizens through political debate that it's immoral (which is what abolitionists really think), but by more technical, litigation-based challenges brought before the judicial branch."

You operate under a misconception. The individual men and women on death row have legal representatives who owe duties of loyalty to those individuals. Often those legal representatives take positions and undertake litigation that is not, in fact, in the best interests of others on death row. There is no grand litigation scheme by abolitionists. There can't be. It's part of the genius of your class that the system is set up in such a fashion in fact.

Bill Otis wrote: "Given the textual, precedential and public support for the death penalty (trends in public opinion having, however unwisely, been incorporated into Eighth Amendment analysis), no court faithful to its constitutional limitations is going to put an end to the death penalty."

This is false as a legal matter. The evidence is overwhelming, in fact, that it is impossible for States to provide the process due before it takes one of its citizen's life. Many innocent citizens have already lost their lives at the hands of the State, and we know this without anybody really looking (a result of an obscene scarcity of resources). The State's interest in executing its citizens (small) does not outweigh the interest of even a single citizen in his or her life, except to fanatical Statists to whom reasonable people owe no consideration. I am aware that you are oblivious to the evidence, but your ignorance does not undermine the constitutional implications.

Posted by: DK | May 10, 2008 1:21:45 PM

Also, Bill, I am curious if you support the death penalty against Pvt. Steven Dale Green, the soldier accused of raping and murdering Abeer Qassim al-Janabi, a 14-year-old Iraqi girl. And what about the other soldiers involved in the conspiracy? Or is your support for the ultimate penalty confined to white victims? (We can also discuss your responsibility for this crime, too. I do think you might be able to see a more direct connection between your actions and the murder here than in other contexts, despite its overwhelming presence in all.)

Posted by: DK | May 10, 2008 1:35:27 PM

DK:

It's all true. Just as you say, I AM responsible for murdering Jessica Lunsford, not to mention the dozen or so people offed by the beltway sniper. But now that you've nailed me anyway, I might as well confess that I was also part of the Manson family, and I assassinated McKinley too.

And then there's this product of your insight: "Bill Clinton is a Southern conservative. Lincoln was a white supremacist from the civil war era. Again, these are the kinds of people responsible for the politics that cause murder."

By no means do I merit being placed in the same category with Lincoln, but at my age, hey, I take what I can get. So thanks!

But back to the main event.....since you've deduced that I'm responsible for so many murders, please, call the cops quick! It's your civic duty!!!

Posted by: Bill Otis | May 10, 2008 4:05:09 PM

I suppose I should have expected that a discussion of your accountability would be off the table. It is, after all, part of your vile outlook that only the poor should be held to account. Just like Jesus!

Posted by: DK | May 10, 2008 4:34:29 PM

DK:

Gads, you've got it all wrong. So far as I'm concerned, you can discuss till the cows come home my "accountability" for every murder out there, all of which were caused by the country's failure to become an even more bloated welfare state than it is alresdy, and not one of which was caused by the killer's greed or malice or lust or any of that stuff.

So discuss away, good sir. Let a thousand flowers bloom.

Posted by: Bill Otis | May 10, 2008 4:48:56 PM

But, Bill, you're an avowed killer, aren't you? So you probably do have a greater insight into a killer's mindset. And I can't say I entirely disagree with you about your or other killers' short-term motives.

Of course, the difference between killers like you and killers like those on death row (at least those who actually ever did kill anybody) is that the former are educated and in positions of relative power with great freedom of choice and action. The latter tend to be uneducated and in positions of powerlessness, constrained merely to react to the forces put upon them (including the forces of mental illness over which they have no control and the treatment for which they lack the financial ability to obtain). And because, as as Uncle Ben once told Spiderman, "With great power comes great responsibility," you can see how it directly follows who should bear the greatest accountability for social dysfunctions like murder.

I do wonder what Jesus would do. Do you?

Posted by: DK | May 10, 2008 5:30:34 PM

DK:

No, actually I don't. I kinda thought that sentencing law and policy, which if I recall is the subject of this blog, was about secular law, and therefore that the views of Jews, agnostics, atheists, and others not necessarily devoted to Jesus's teachings were welcome and were not discounted on account of religious choice, or lack thereof.

You know, pluralism, separation of church and state, that sort of thing.

Now what with my being an "avowed killer," as you say, I ask your indulgence while I prepare to knock over the gas station on this fine Saturday evening -- not because I want a fast buck, mind you, but because I got booted out of Head Start 30 years ago. It's those darn conservatives, I tell you!

Posted by: Bill Otis | May 10, 2008 7:05:20 PM

Yes, Sentencing Law and Policy. It's nice to hear you taking the position that your Christianity is irrelevant to your policy positions and that you don't at all care about what Jesus might do. Are you really publicly admitting as much? (Yes, I am kind enough to give you an opportunity to retract your statement that you do not ever wonder what Jesus might do.) By the way, I'm not a Christian, although I do respect the historical Jesus's radical positions on many things, including the corruption of the ruling class of his era and their manipulation of religion for their own selfish ends. Would you, as a (recently?) avowed fellow secularist, agree?

And why on earth do you ensconce "avowed killer" in scare quotes? Please correct me if you do not in fact support the death penalty, as I had been under the impression that you did. Do you not support killing? Do you not do so openly? Are you not tough? Are you not an avowed killer?

Posted by: DK | May 11, 2008 1:38:13 AM

DK:

I really should have the discipline to cut this out, but some things are too much to resist. So, just to get the day off to a flying start, I'll take your post line-by-line. Is that cool or what?

"Yes, Sentencing Law and Policy. It's nice to hear you taking the position that your Christianity is irrelevant to your policy positions and that you don't at all care about what Jesus might do."

I don't recall saying that I'm a Christian. Where was that? And whether I am or not has nothing to do with the ISSUE of capital punishment.

"Are you really publicly admitting as much? (Yes, I am kind enough to give you an opportunity to retract your statement that you do not ever wonder what Jesus might do.)"

Oh, THE KINDNESS OF IT ALL. How did I get so lucky?

"By the way, I'm not a Christian, although I do respect the historical Jesus's radical positions on many things, including the corruption of the ruling class of his era and their manipulation of religion for their own selfish ends. Would you, as a (recently?) avowed fellow secularist, agree?"

Ummmm, let's try to stay focused here, OK? What I agree to is that in a blog about secular law and policy, a poster's religion per se, no matter how deeply held (or lack of same) is irrelevant. His moral beliefs ARE relevant, sure, but the arguments taking root in them have to stand on their own merit, rather than seek a phony leg up by invoking religious authority.

"And why on earth do you ensconce 'avowed killer' in scare quotes?"

What's scary about them? I put the phrase in quotation marks because I was quoting it from you. This is not really rocket science.

"Please correct me if you do not in fact support the death penalty, as I had been under the impression that you did."

Yup, got that right. There may yet be hope.

"Do you not support killing? Do you not do so openly?"

Yes, I do support killing, as does almost every other sane person, even while there is disagreement, to say the least, about the circumstances in which it is justified. Practically everyone supports killing when necessary in self-defense. Almost the same number supports killing when necessary in defense of an innocent third party. There was, and there seems to remain, widespread support for the killing that will necessarily go on, and is going on, in our war against al Qaeda terrorists in Afghanistan. There was nearly universal support for killing the Nazi enemy in WWII, even though it was known that this would entail killing thousands of innocent Germans as well. And relatedly, large majorities justifiably support government activities that they know will contribute to thousands of deaths (like building high-speed interstate highways), because overall the toll is judged to be worth it to achieve other important objectives.

But if you want to go back to the horse and buggy, on the theory that the ruling class is merely abetting its obscene excesses with these dangerous and sometimes fatal highways, don't let me stand in your way. Not that I could. Or would.

"Are you not tough?"

Well, you know DK, I do my best, but I'm just not getting there. I go off to the gym three times a week and STILL I'm on the path to looking like a walrus. Phooey.

"Are you not an avowed killer?"

In order to be an "avowed killer," one has to be a killer, so I guess I come up short. Sorry about that.

Posted by: Bill Otis | May 11, 2008 9:02:58 AM

Good blog! I have found here much useful information for yourself and would like to thank you for done by work.

Posted by: Family Violence Lawyer | May 25, 2012 12:49:05 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB