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June 26, 2006

A few quick thoughts on Marsh

A quick read of the Supreme Court's death penalty work in Marsh (opinion here) triggers a lot of capital punishment thoughts.  Here are a few quick observations on Marsh

1.  The reargument and 5-4 vote makes clear that Justice Alito was a swing vote.  It is fun to speculate which opinion Justice O'Connor might have joined (and perhaps even more fun to speculate which opinion Harriet Miers might have joined).

2.  Justice Thomas' opinion for the Court seems to avoid any unduly broad language about the meaning or contours of the Court's capital jurisprudence (although perhaps I missed some sharp dicta needles in the Marsh haystack). 

3.  Justice Scalia and Justice Stevens have an interesting dialogue in their separate opinions about the Court's certiorari choices, which echoes some of the ideas previously developed in this post.

4.  Justice Scalia and Justice Souter use this case as an opportunity to engage in an extended debate about wrongful convictions and the death penalty.  Beyond the fact that Marsh is a very strange setting for innocence talk, shouldn't these Justices be devoting more time to addressing legal issues and less to engaging in off-topic factual debates?

5.  Justice Souter baldly asserts at the end of his dissent that "false verdicts ... are probably disproportionately high in capital cases."  Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four "liberal" Justices might actually believe it is true.

June 26, 2006 at 01:45 PM | Permalink


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» Alito is Swing Vote in Kansas Death Penalty Law from TalkLeft: The Politics of Crime
Why am I not surprised? Justice Alito was the swing vote today in a decision that upheld Kansas's death penalty law that the Kansas Supreme Court had ruled unconsitutional. Justices split 5-4 in the term's oldest case, which was argued... [Read More]

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» Death and Difference from De Novo
So there are really two Marshes worth talking about. Marsh One, which I tried unsuccessfully to provoke interest in, is the debate between Scalia and Stevens about whether it is worth the Supreme Court's while (or within the Supreme Court's... [Read More]

Tracked on Jun 28, 2006 7:21:59 AM

» Is Erroneous Conviction More Likely In Capital Cases? from Concurring Opinions
Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that "among all prosecutions homicide cases suffer an unusually high incidence of false conviction." He explained this phenomenon as due to "the combined difficulty of investiga... [Read More]

Tracked on Jun 28, 2006 12:50:22 PM

» Executing Innocents in the Age of Empiricism from PrawfsBlawg
In response to the SCT decision the other day in Kansas v. Marsh, where Justices Scalia and Souter were tussling over the extent and significance of innocents sentenced to death, there is a nice discussion in the 'sphere percolating that should be of i... [Read More]

Tracked on Jun 29, 2006 10:13:32 AM

» Is Erroneous Conviction More Likely In Capital Cases? from Concurring Opinions
Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that "among all prosecutions homicide cases suffer an unusually high incidence of false conviction." He explained this phenomenon as due to "the combined difficulty of investiga... [Read More]

Tracked on Jul 5, 2006 12:10:54 PM


I cannot help but respond to Justice Stevens' argument -- advanced in both Recuenco and Marh -- that state court decisions that are too generous to defendants in the name of the federal Constitution are unworthy of review by certiorai. The mere fact that a state could afford a more generous remedy for a federal constitutional violation as a mattter of state law, or interpret its own constitution to provide greater substantive protections, does not mean that the U.S. Supreme Court should not step in when a state court (erroneously) purports to speak in the name of the federal Constitution. I'm as big a proponent of judicial federalism as the next guy, but allowing erroneous state-court interpretations of the federal Constitution to stand does not, it seems to me, further federal court respect for state court judgments (especially where, as here, the erroneous interpretations can be reviewed on direct appeal, as opposed to on federal habeas).

Posted by: Steve | Jun 26, 2006 2:19:45 PM

It is surprising that the innocence dialogue between Scalia and Souter should come up today in Kansas v. Marsh. It almost makes u wonder if this was an exchange that was not yet fully ready for publication when the court issued its decision in House v. Bell last week. There was briefing and discussion about the innocence issue in that case, which involved a claim of actual innocence. Scalia's concurrence today in Kansas v. Marsh includes points made in the amici curiae briefing our office (the California AG ) filed in House v. Bell.

Posted by: ward campbell | Jun 26, 2006 2:27:55 PM

I agree with Souter on wrongful convictions, or more rightly, to the extent that it applies to wrongful jury verdicts.

The reason: Death qualification of juries, which has been shown to produce higher conviction rates.

Now, there are plenty of people who plead guilty to lesser offenses when they factually are not guilty (just about no one pleas guilty to capital murder with the death penalty as a possibility except as a form of suicide by court), and lesser cases often have sloppier litigation, but a bias in the jury pool is a big factor, which certianly influences death penalty cases relative to say, armed robbery or non-capital drug kingpin cases.

Posted by: ohwilleke | Jun 26, 2006 2:37:50 PM

You raise a good point about jury composition. ohwilleke, though I would still be surprised if that fact alone would back up Souter's assertion. In addition, if this is an important factor, shouldn't the Court consider revisiting some of its death qualification jurisprudence?

Posted by: Doug B. | Jun 26, 2006 2:57:02 PM

I reckon there is not only one fact "alone" that made Souter make that statement. As to the other fact, probably so, but there aren't the votes.

Posted by: Joe | Jun 26, 2006 7:13:53 PM

While death-qualification probably does produce a somewhat higher conviction rate, I think the greater resources given to defendants in capital cases, including more qualified lawyers and investigator expenses, give the actually innocent defendant a better position at the guilt phase of a capital case than a noncapital case.

Post-trial, there is no comparison. Every capital defendant has a right to government-paid counsel on federal habeas, and in most states on state habeas as well. An innocent person wrongly convicted of murder has a better chance of walking out of prison alive if he is sentenced to death than if he is sentenced to life without parole.

Posted by: Kent Scheidegger | Jun 26, 2006 8:53:26 PM

Souter's comment, of course, was limited to false verdicts at trial. And, while the habeas process is O.K. at addressing procedural flaws, it is considerably less adept at addressing the kinds of mistakes that commonly lead to wrongful convictions, such as erroneous eyewitness identifications or a jury that gives undue credit to an incentivized witness whose incentives are disclosed, and failure on the part of a defense counsel to investigate the facts prior to trial.

Also, while most states do give the defense in a capital case adequate investigation resources and a qualified lawyer, this is not generally true in many of the states, such as Virginia and Texas, that produce the largest share of death penalty sentences. Indeed, inadequate assistance of counsel, ridiculously low standards of competence by reviewing course, and pathetically low compensation for appointed counsel in capital cases are major factors driving the prevailance of the death penalty in those states.

Posted by: ohwilleke | Jun 27, 2006 3:00:58 PM

Let me preface my remarks by saying this: I agree that the death penalty is perfectly constitutional as a means of punishment because the Constitution expressly provides for capital punishment. That said, I believe as a policy matter that the death penalty should be abolished unless and until the risk of erroneous determinations is reduced to zero. For those who wish to promote a "culture of life," that seems the only sensible policy position. With that, I turn to the mess that is Kansas v. Marsh.

I find Justice Souter's dissent utterly misplaced, if not downright ridiculous. Kansas v. Marsh was neither the time nor place for an argument to the effect that "any legal rule that makes the death penalty harder to impose is justified because the death penalty should be abolished." That's an argument for legislatures, not Article III courts.

That said, I find something in Justice Thomas' and Scalia's opinions even more troubling. Both cases cite to and quote from the Illinois Supreme Court's decision in People v. Smith. Smith was convicted of murder, but his conviction was reversed due to evidentiary errors. Smith was convicted after a new trial, only to have the appellate court reverse his second conviction for evidentiary insufficiency. The court in Smith went out of its way to distinguish between the terms "not guilty" and "innocent," as if to suggest that a "not guilty" verdict or appellate reversal for legal insufficiency works a windfall to the defendant who may very well have performed the acts he was accused of. In other words, the Illinois Supreme Court grudgingly vindicated the reasonable doubt burden of proof while lamenting the fact that doing so essentially let a "factually guilty" person go free.

The reliance on that case and that language in the context of responding to Justice Souter's arguments in Marsh effectively says that "It's ok if we execute people 'wrongfully' because most of those people aren't factually innocent to begin with, but instead may have a constitutional error that produced their guilty verdict or death sentence."

If that in fact is what Justices Thomas and Scalia are trying to say, then I find this deeply, deeply disturbing, and emblematic of the way culture wars have infected the Supreme Court's constitutional adjudication. If a constitutional error infects a judgment and is not harmless, the remedy is or ought to be a new proceeding without that error. If that new proceeding results in "not guilty" determination (or a verdict of life imprisonment instead of death), then it seems obvious that an execution would have rendered moot the defendant's right to relief. For instance, had the defendant in Smith been executed before he could vindicate his constitutional rights, would Justices Scalia and Thomas defend that execution on the ground that, even if Smith was "not guilty" in the eyes of the law, he still actually "did it," and so no one can complain that we have executed an "innocent man"?

The moral of the story is that, while the Justice Scalia was quick to chastise Justice Souter for misleadingly using the term "innocent" to refer to defendants whose convictions have been or ought to be reversed due to constitutional error, he showed his true colors by suggesting that executing defendants whose judgments are infected by constitutional error is perfectly acceptable. If that accurately describes Justice Scalia's philosophy, then why shouldn't reasonable observers conclude that in each death penalty case where an inmate is litigating a constitutional claim on federal habeas, Justice Scalia's vote to deny relief is based not on a dispassionate view of the legal issues but on his belief that the person probably "did it"?

Posted by: Steve | Jun 28, 2006 10:44:00 AM

Prof. Berman: What's the basis for your belief that Souter's assertion about death-penalty errors is wrong?

Posted by: AF | Jun 28, 2006 3:37:46 PM

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