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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.

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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


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

This was a minor disaster for those who oppose the death penalty.

First, Stevens finally says he opposes capital punishment. But he says it's mostly a personal decision in spite of the Constitution. He made a few weak arguments about the People clinging to the DP out of habit, but essentially sounded like he was making his principled stand with the minority who will forever remain a minority.

Then things got worse with Ginsburg (and silent Souter). She and her passionate clerks are normally able to find something -- anything -- unconstitutional to halt or delay the process. But here she couldn't even bring herself to declare the cocktail unconstitutional. Her weak plea to remand was more like a loud sigh than an argument.

Those who morally oppose the DP seem to be running out of options. That's not to underestimate their creativity in finding more nuances to litigate. Hardly. This opinion certainly will do nothing to stem further attempts to achieve their principled gaol through the courts.

But it feels like the anti-DP justices have just about given up. They're being hemmed in and making advances only on the margins. They're all but saying: "OK, we know the DP is constitutional. We don't like it and can't admit it. We'll keep up the game because so many out there are looking up to us. Maybe we can delay until the rest of the country comes around. Hope is our strategy, along with the belief that what we're doing is right."

Not a winning strategy, it seems to me.

Posted by: TomB | Apr 17, 2008 10:54:01 AM

Also: looking at the opinions, harking back to the oral argument, and reading the DP opponents' spin on how they can continue in spite of Baze --

It's almost comical that the most positive takeaway from Baze sounds like: "OK, we lost this three-drug cocktail, so let's try again with more evidence that it could be painful. That will let us bring in the one-drug solution and try to litigate our way through that."

So now the opponents of the DP are reduced to arguing about the best way to kill their defendants? Have we indeed come down to this?!

Grim prospects, methinks.

Posted by: TomB | Apr 17, 2008 11:03:44 AM

I still contend a large injetion of a strong opiate (morphine, heroin, fentanyl, or even carfentanil) to cause an overdose would be painless and would cause quick death due to respiratory depression. One drug, absolutely painless (in fact, probably quite pleasurable before passing out), no way to cause suffering, and very quick.

Posted by: bruce | Apr 17, 2008 11:08:52 AM

"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."

The phrasing of the question is not the one most people, save those who are ardently anti-death penalty, would use. This is not a question about "the State's killing of its own citizens" but rather of prompt, speedy, and efficient administration of the law and justice. All of these save efficiency, in my mind, naturally complement the Sixth Amendment's requirement for a speedy trial.

Jeff (student but not of law, via SCOTUSblog)

Posted by: Jeff Walden | Apr 17, 2008 11:11:35 AM

Bruce, I wouldn’t put too might weight in the Angelos decision. Judges Cassell never took those issues too seriously. He was just trying to gain credibility so he could blabber on about how evil Miranda was and put more people in jail. If he took his job seriously he would have actually conducted a real, binding 8th amendment analysis, and, if necessary imposed a lesser sentence and let the government appeal. Putting in dictum like that is worthless. After obtaining enough visibility he left his job to join the victims rights industry. It is a shame he had to do it on the backs of so many people.

“But a sentence could be greater than necessary but not cruel and unusual.”

Exactly. This is why the 8th amendment isn’t a parsimony provision. The Magna Carta seems to indicate some form of parsimony (at least as far as fines are considered). After all, it was written at a time in England when the people really liked killing each other and British culture admired a good execution as much as they did a good crumpet.

Mr. Walden, execution is killing. We should not call it anything else. A state employee kill that is paid less than $40 an hour kill someone. The state is generally so embarrassed about this that they keep the press out of the execution room so that the voters will never see what it looks like when an low-paid state employee kill someone. This ensure that the choice as to who to kill and how to kill them will never be made in a democratic manner. Despite the fact that this seems strange, it is legal. However, there is no requirement that the condemned be a citizen

Posted by: S.cotus | Apr 17, 2008 12:49:02 PM

Only Stevens' dissent mentions innocence. The reliability of guilty verdicts was not, evidently, a foremost issue.

Justice Scalia tries to answer:

"JUSTICE STEVENS’ final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death—though not a risk that JUSTICE STEVENS can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system."

Even Sean Hannity changed his mind about the death penalty after learning of so many false convictions. Even federalist would agree that lethal injection of a innocent person by the state is cruel and unusual because an innocent person is not an animal that deserves lethal injection.

Much of the objection to CSI -- claims that jurors now expected DNA and strong forensic evidence -- is possibly disingenuous. Another possible underground objection is that CSI gives even death qualified jurors permission to question the state's theory of the case. CSI is too Perry Mason-like and things are not what they at first seemed. Add this to the findings of the Innocence Project, and blind faith in the death penalty begins to crumble. It's not over yet and if abolitionists want to fight on all they have to do is support the Innocence Project. The majority already believe an innocent person was executed.

How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with -- do you think this has happened in the past five years, or not?

Yes, in past five years

2006 May 8-11 63%
2005 May 2-5 59%
2003 May 5-7 73%

Now, let's do a hypothetical of Kennedy. In this scenario, Kennedy does have a prior of some sort, but the introduction into evidence of that prior bad act, wink-wink, cannot go to the proof of guilt of the current offense, wink-wink. Let's say the current charge was made during a bitter divorce. Let's say the allegation is by a daughter made 10 years later from recovered memories but there is no statute of limitations. Let's say the accuser in now 13 and does not have to confront the accused in the court room, but testifies through closed circuit TV or the prosecution uses prior recorded testimony, or maybe a social worker testifies for the accused. Let's say Kennedy is a pastor and there is a lawsuit against the church in the works.

There is a good chance Kennedy could be executed. The point is that even as we learn about the commonality of false convictions, we make it easier for them to happen.

Posted by: George | Apr 17, 2008 1:07:35 PM

My view is that people really like the death penalty because it is some kind of legal brass ring. There is a ceratin thrill in being a part of a killing ritual where you can file all sorts of papers and someone will be kill in such a way that there is nothing at all they can do about it. Nowhere else in our criminal justice system can someone get such joy. (In fact, I have seen lawyers toast state killings as a final, ultimate, and conclusive legal victory. If the person “didn’t do it” or whatever is no irrelevant. He is dead.)

And, I find it strange that someone would argue that no dead person has managed to “prove” themselves “innocent.” I wonder why Scalia even bothers with it, and sidesteps the issue that people on death row and *about* to be killed by a state employee have been exonerated.

Well, the “CSI effect” is mostly prosecutorial whining.

What Hannity thinks is irrelevant. He isn’t a lawyer.

Posted by: S.cotus | Apr 17, 2008 1:29:52 PM

S.cotus: we certainly agree about Judge Cassell's motives and the deplorable "victim's rights" groups he's joined since his departure from the bench (which he says was his reason for departing from the bench). I remember there was a long discussion here about it when he resigned. I was more focused on the facts of the Angelos case as one where the sentence is much greater than necessary - so much so as to approach being C&U under the 8th Amendment. If Cassell really wanted to find an 8th Amendment violation he could have easily done so, and then leave it up to the SCOTUS to reverse him.

George: that whole "name one innocent person who has been executed" contest is horribly disingenuous. Many innocent people have been executed, we just don't know who they are because only in a small percentage of cases is evidence found (or preserved) which yields exculpatory DNA evidence. Even when it is, the convicted individual has to fight the state tooth an nails to get the conviction overturned - even when it's abundantly clear that no jury would convict beyond a reasonable doubt w/ the new evidence. The state will almost always argue that the newly discovered exculpatory evidence doesn't matter, or doesn't matter enough. If they lose their habeas petition, they will be executed. The state will claim a guilty person was executed. People looking for evidence of an innocent person being executed won't be able to use this defendant as such evidence, because he was "guilty."

There are plenty of people executed who have raised newly-discovered exculpatory evidence (DNA or otherwise). When the state challenges the evidence and wins, the person is still deemed to be "guilty" and thus a "guilty" person will have been executed. The state will never admit it executed an innocent person. Why should it? A court will never hear the evidence to make a determination of innocence after the guy is executed. Thus, the state will always contest the actual innocence, and will issue press releases saying why the exculpatory evidence is not sufficient, accurate, correct, relevant, etc.

That being said, I contend Ruben Cantu was innocent when he was executed by Texas.

Posted by: bruce | Apr 17, 2008 1:38:51 PM

It really annoys me to see District Court judges talk about how they see the problem and want to “set up the issue” but always decide that the default position is that the government wins. The exception seems to be Weinstein and a couple others. If they really saw the problem and the problem was of constitutional magnitude and the Supreme Court had not ruled squarely on point they would rule for the defendant.

This is probably the most nasty example of judicial politics brought on by a need to manage caseloads in general and sometimes a more disgusting form of affinity for the government. After all, since the government can usually appeal these issues, but when it wins (and the defendant appeals) it has numerous advantages on appeal: 1) the defendant might die or not appeal; 2) the Court of Appeals might avoid the issue and rule on some fact-based alternative ground. If, on the other hand, the government loses, the government generally must address the legal theory on which it lost head-on.

Posted by: S.cotus | Apr 17, 2008 1:51:29 PM

I couldn't agree more, S.cotus.

Among other things, I think it has to do with the fact that ruling in favor of a criminal defendant always costs the court/judge political capital. Life tenure doens't cure this problem, though it is certainly worse where judges are elected and have to campaign against someone saying they are "tougher on crime" while citing to all your decisions where you ruled in favor of the criminal defendant. Ruling in favor of the criminal defendant means the government is pissed at you and will badmouth you. It means the victim and the victims friends and family (with their asinine webpages and tshirts and fliers and buttons) hate you and curse you. It means the media will say you "ruled in favor of convicted criminal" and you'll get bad press merely by virtue of the story being accurately reported. And it means you'll probably get reversed on appeal/further appeal! Any pro-defendant decision/ruling can be reversed as an abuse of this or unreasable application of so and so -- all the higher court has to do is state the facts of the crime and why the defendant is a convicted scumbag undeserving of a ruling in his favor. Ever notice how all opinions affirming a conviction waste a page on the facts of the crime in great detail, while opinions that reverse/vacate a conviction or sentence merely skim through the facts in a general way to describe what kind of case it is. Surely the fact that the victim needed ten operations and extensive reconstructive surgery is not relevant to any 4th, 5th or 6th Amendment issues. And it won't be mentioned in the rare case in the defendant's favor (except maybe in the first sentence of a dissent). But it certainly will be mentioned in an opinion affirming the conviction/sentence.

That's why the state wins by default. Making the criminal defendant, and maybe his family and friends (if there are any) happy, and saving the taxpayers a little money by having one less prisoner, simply do not offset the foregoing harm.

Posted by: bruce | Apr 17, 2008 2:24:34 PM

"Even federalist would agree that lethal injection of a innocent person by the state is cruel and unusual because an innocent person is not an animal that deserves lethal injection." - George

Except that's impossible.

Anybody who was executed must have been convicted and sentenced by a jury and had his appeals rejected. Legally speaking, it is simply impossible for any innocent person to be executed.

As for S.cotus's point about exonerations, that's just evidence that the system worked as intended. Otherwise, why have an appellate system to begin with?

Contrary to what S.cotus might think, some of us who are delighted by executions are simply pleased that justice will be done, that a heinous murderer will be getting the punishment that society, through a democratic system, endorsed. We are not nearly naive enough to think that somehow, everybody on death row is innocent nor do we have some irrational objection to capital punishment which is not supported by the original intent of the Framers nor by the vast majority of the population.

bruce was doing a very good impression of Justice Stevens with his:

"Many innocent people have been executed, we just don't know who they are...."

In other words, a legal system which emphasizes logic and evidence is irrelevant. bruce and Justice Stevens's experience (based upon no concrete facts whatsoever) reigns over all!

Posted by: realist | Apr 17, 2008 3:18:26 PM

realist, the average person is a moron. By definition that means 50% of people are even dumber than that. Yet you feel their opinion should matter when it comes to a policy of killing unpopular persons.

I never said nor implied "everybody on death row is innocent". Neither Justice Stevens nor myself not S.cotus would ever assert that even a majority of people on death row are actually innocent. Speaking only for myself, I would say 3-5 percent of those on death row are actually innocent of capital murder and 10 to 20 percent of people on death row are "innocent of the death penalty" as that phrase is used in Sawyer v. Whitley, 505 U.S. 333 (1992).

I don't see where your last sentence comes from.

Posted by: bruce | Apr 17, 2008 3:55:33 PM

Whether I think the average person's opinion should matter is irrelevant. The reality is that the democratic system requires that their opinion prevail.

My last sentence was pointing out the extraordinary contempt so many of you have toward the legal system. In fact, your latest post just confirmed my impression: "Yet you feel their opinion should matter when it comes to a policy of killing unpopular persons."

Apparently, the fact that people on death row kill at least 1 person, that they are unanimously convicted by juries, and that anyone who has been executed must have failed his appeals has been reduced by you to simply being "unpopular".

Of course, from a certain perspective, that's true. Murderers are unpopular. If you think that should change, perhaps you can start a petition calling for abolition of the prohibition of murder.

Posted by: realist | Apr 17, 2008 4:17:12 PM

Bruce writes, "the average person is a moron."

Doug, the comments section of your blog has become a sewer.

Posted by: Kent Scheidegger | Apr 17, 2008 4:55:23 PM

Democracy most certainly does NOT require majority rule. That's a plebiscite. WE're not that.

Kent, if that is sewer talk you must be a puritan or something.

The average person one encounters on the street is, objectively and verifiably, stupid. That means half the people are dumber than that (definition of average).

It's quite an unremarkable statement.

Posted by: bruce | Apr 17, 2008 4:59:43 PM

This opinion could have been issued more than a month ago had Stevens not written that anti-death penalty piece and of course Scalia had to respond to it. I am surprised by Justice Kennedy. I was concerned he would give the states more trouble as he has in the past couple of terms. I assume Ginsburg and Souter would have concurred had Kentucky spent more time appraising unconsciousness?

Posted by: DaveP | Apr 17, 2008 6:14:19 PM

Bruce writes, "the average person is a moron."
Kent says, “Doug, the comments section of your blog has become a sewer.”
Mr. Scheidegger, Your comment does not actually address the substance of the argument. Most people in the United States and other first world countries simply do not wish to get involved with the difficult issues inherent in policy or legal arguments. Instead, they look for soundbites: which your organization is more than happy to give them.
Bruce, Whatever the arguments about whether decisions are made “democratically,” the US Constitution has many countermajoritian, and non-democratic features: namely terms of office (some of which are for life), special protections for minorities (i.e. they have to equally protected, regardless of whether most people don’t want them to be), and supermajority requirements.
Realist, Nobody is arguing that everyone on death row is innocent. However, our argument is simply that it is a FALSE argument to argue that nobody killed by the state was ever proven innocent. This is because 1) “proof” of guilt or innocence is, itself a legal standard which relies more on a process than it does on anything that is objective; 2) once someone is dead the cannot partake in the process; and 3) most states do not have procedures for “proving” someone innocent – innocence is, quite rightly, viewed as a lack of legal guilt.

Posted by: S.cotus | Apr 17, 2008 6:24:41 PM

"Anybody who was executed must have been convicted and sentenced by a jury and had his appeals rejected. Legally speaking, it is simply impossible for any innocent person to be executed."

So, "legally speaking," anyone who has served out his prison term must have been convicted and sentenced and had his appeals rejected. It therefore is impossible for any innocent person to be punished.

Except that the Innocence Projects have demonstrated that some of those persons are indeed innocent. Many years after their ordinary appeals and post conviction challenges were concluded against them, new evidence, or a new DNA analysis of evidence, proves them innocent beyond any doubt.

The point is that once the State kills people (yes, with the applause of the majority of people and to the joy of the prosecutors), those dead people generally don't ask the IPs for assistance, and even if they did, the IPs probably are too busy assisting live persons and reject their cases, and even if they accepted the cases, the courts generally require there be a litigant before they will hear a case.

The point is we never will know if an innocent person has been executed. Dead people are not allowed, and are quite unable, to prove they are innocent. And if a person on death row ever is exonerated before the needle goes in, the prosecutors crow how the system works.

But in the end, none of this is relevant in the legal sense. Scalia actually said it pretty well. Executing criminals is not unconstitutional and is wildly popular. It is pursued with gusto by professional accusers. And when done by injection of poison, does not, according to SCOTUS, pose a substantial risk of harm.

So, the pro death penalty crowd wins and what perhaps may be the most premeditated, planned and professional killing imaginable (a signed death "warrant", a death chamber, a paid executioner) shall continue to be carried out by the government on its people. Hooray. The end.

Posted by: TresEquis | Apr 17, 2008 6:36:50 PM


The Supreme Court talked about the State's interest in finality. The reason why the first trial to determine guilt or innocence is such a paramount event is because you won't have a legal system if you allow that question to be litigated ad infinitum.

Exactly what do you find so irrational about this reasoning? If you accept that a case must, at some point, end, then what is your problem with the current system?

What I see is a system where, to quote Justice Scalia, people are given more rights than the Constitution permits. In that first trial, people are provided with lawyers free of charge. (a "constitutional right" that never existed during the time of the Framers) Before arrest, suspects are read "Miranda rights". (ditto) There's the "beyond reasonable doubt" standard. Juries are required to be unanimous to convict but a single dissenter can cause a mistrial.... The defense's advantages are tremendous.

So, why is it a false argument that a criminal, after enjoying such tremendous advantages (not to mention an appellate process lasting an average of 10 years) but still lost his case, must be... guilty?

As for TresEquis's post, I can only inform him that I don't put much stock into tall tales of people who have been acquitted by individual interest groups. (Justice Scalia's concurrence in Kansas v. Marsh speaks for me.) Unless Congress and all state legislatures vote to replace our current legal system with the Innocence Project, I'm afraid I cannot bestow upon them more legitimacy than they deserve. I invite the Innocence Project and their various associates to intervene during that first trial rather than after someone has been executed.

Posted by: realist | Apr 17, 2008 7:13:51 PM

"Mr. Scheidegger, Your comment does not actually address the substance of the argument."

Because I did not intend to join the substantive argument. My comment was on the decline in the quality of comments here. I expect that thoughtful readers of the blog (most of whom have stopped or greatly reduced commenting) know what I meant.

Posted by: Kent Scheidegger | Apr 17, 2008 7:25:22 PM

If one can equate DNA analysis with "tall tales" and courts which exonerate people proven by science to be innocent "individual interest groups", and who insists the IPs indeed intervene "after someone has been executed", then just about any argument can be characterized as "false". Which is indeed pretty much how the "legal system" works and how the pro-death crowd has been so successful convincing the public that anyone for whom a death warrant has been signed is in reality guilty. Some of us, however, do not believe cops, prosecutors, juries, and appellate justices are infallible. And a few people believe that given that state of affairs, litigating "ad naseum" on behalf of those the state intends to kill is more important than, altogether now, CLOSURE. And the constitution allows them to litigate, just as it allows the state to kill people. So, as distressing as it may be, you'll just have to be patient and put up with people exercising those darned rights before you put them to death.

Posted by: TresEquis | Apr 17, 2008 8:02:37 PM

One of the most telling moments about death penalty opponents in recent years was over the Roger Keith Coleman case. After DNA analysis proved his guilt once again, one of his supporters whined: "The opportunity to bring new people into the abolitionist movement has been lost." ( http://www.washingtonpost.com/wp-dyn/content/article/2006/01/12/AR2006011201210.html )

Not a thought was given to the years and efforts spent to keep that murderer alive. After all, it was The Cause that counts!

Your talk about DNA analysis ignores all the murderers convicted by said analysis. But do their supporters give up immediately after the test was done? Of course not. I for one get the impression that these crusaders care less about DNA analysis than I do.

Posted by: realist | Apr 17, 2008 8:22:45 PM

realist, no matter what any court says, the state has absolutely ZERO interst in preserving the wrongful conviction of an innocent person. Any suggestion to the contrary made by a lawyer should result in disbarment.

Finality is the lamest excuse the government ever uses. If I were a judge, and anyone argued "need for finality" or "it will open the floodgates of litigation" in my court, I'd hold them in contempt and bar them from ever stepping foot in my courtroom again.

As for the notion that people should be executed to give the victim's family "closure" ... ugh. I don't have the patience to rehash my rant on victims' rights. Suffice it to say, the victims can go screw themselves to get their closure. Moreover, I've never heard a victim say, after the defendant's execution, "Ahhhhh closure! I feel so good now! Finally, he's dead, I have closure now... whew!"

the US Constitution has many countermajoritian, and non-democratic features...

S.cotus: yeah that's precisely my point -- democracy (in the USA, anyway) does not mean majority rules. Just because >50% of the people want something doesn't mean their will should or will be imposed on everyone. Imagine how our country would be if we had no congress and no courts and no president and every issue, whether legislative or judicial or executive, was voted on by the people by going to www.voteUSA.gov. Every day there would be polls, which would last for 30 days or so, and the winning proposition/result would become law.

While we're not too far from that, there are still limits on what the majority can do, unless there are enough to amend the constitution.

But any suggestion that "most people want the death penalty" is a valid reason for having it is simply a fundamentally stupid claim to assert. The fact that "most people" want something is, in my view, evidence that the contrary position should be chosen. If most people want something, it's probably wrong. That's because most people are stupid and unreasonable and ignorant and think of nothing other than their own self-interest.

Kent, are you saying this topic, with about 40 posts, has not been an intelligent conversation? It seems you're making that claim solely because I insulted homo sapiens en masse.

Posted by: bruce | Apr 17, 2008 8:50:24 PM

"Your talk about DNA analysis ignores all the murderers convicted by said analysis. But do their supporters give up immediately after the test was done? Of course not." Because we're anti-death penalty, hello. We also oppose killing the guilty, even if the prospect of killing the innocent really gets in our craw. (We're also in favor of things like the Fourth Amendment. Sixth too. Oh, yeah, and Eighth.) By the way, why is a ridiculous comment by an anti-d.p. "crusader" you found on the web "one of the most telling"? No fair attributing the most inane statement you could find to an entire group. That's so Ann Coulter.

Posted by: TresEquis | Apr 17, 2008 9:57:34 PM

Kent, There are real issues being discussed here and you choose to insult people.
Realist, To begin, I don’t think you are listening to anyone. Nobody has said that people on death row are per se innocent. Nobody. Instead, people are taking issue with the claim that nobody has ever been “proven” to have been executed erroneously. If you don’t get this distinction just stop now.
First of all, not all states have the same interest in finality. Some states have fairly liberal post-conviction relief statutes.
Second of all, while the state has an interest in finality, that doesn’t mean that vindicating that interest means that a correct result was reached. It just means that courts will recognize that states can punish someone after a certain point regardless of other arguments that might be advanced. This is nothing more than a weighing of political interest (i.e. the interest in the state in putting the poor people in jail v. the interest in poor people in not being in jail), it is not some sort of search for truth or justice. Not that there is anything wrong with this.
Third, Scalia has a habit of calling any Supreme Court decision interpreting the constitution that he disagrees with incorrect and saying that it created a right. This is simply because he was unable t convince the other justices that he was right and now, having failed as a lawyer, he takes his case to the lay people.
Fourth, In reality, “criminals” do not enjoy much of an advantage in the criminal justice system. Many of them are poor and are pretty much doomed from the start. But, maybe society is safer with the poor folk in jail regardless of the reason.
Fifth, “DNA analysis” can be a piece of evidence. It isn’t “proof” any anything. However, it does sometimes indicate that things that were proven with different modes of proof were incredible.

Bruce, In fact states DO have an interest in preserving a wrongful conviction. Here are some 1) the families of the “victim” will feel better; 2) respect for the law will be preserved.

Posted by: S.cotus | Apr 17, 2008 10:38:27 PM

Jeff Walden wrote: "The phrasing of the question is not the one most people, save those who are ardently anti-death penalty, would use. This is not a question about "the State's killing of its own citizens" but rather of prompt, speedy, and efficient administration of the law and justice. All of these save efficiency, in my mind, naturally complement the Sixth Amendment's requirement for a speedy trial."

The phrasing of the question is factually accurate, regardless of how advocates of State killing choose to spin it. So it is, indeed, "a question about 'the State's killing of its own citizens.'" To deny it, as you do, is to willingly remove yourself from reality. And do you really believe that the "prompt, speedy, and efficient administration of law" is a higher value than the very life of your fellow citizens? How about making the trains run on time? That too?

(I left out "justice" from the quotation, since, to thoughtful people, justice never requires killing. And yes, Kent, I'm looking at you.)

Posted by: DK | Apr 17, 2008 11:05:12 PM

S.cotus, I know families of "victims" (or victims themselves if still alive) call prosecutors many times per to talk to their "teammate" about what punishment would be sufficient. By the time trial comes around, the prosecutor is so sick of the victim and/or family and friends of the victim calling and whining, that he will seek a conviction and ask for the longest sentence possible.

Posted by: bruce | Apr 17, 2008 11:08:23 PM

Bruce, A lot of this depends on local politics. Things get really strange in some jurisdictions where there are various understood codewords for “This isn’t really my position, but the families is being a bunch of typical ‘victims’ so just apply the law as you normally would.” At first this sounds really bad, but considering that most prosecutors, in order to maintain some degree of credibility with local judges need to be able to distinguish between the “worst” and “not so bad” crimes, making a “decoy” argument makes good political sense.

Posted by: S.cotus | Apr 17, 2008 11:13:04 PM


The posts speak for themselves. Death penalty opponents display a consistent inability to refer to death row inmates as "murderers", a legal term as soon as they have been convicted. Instead, I see euphemisms such as bruce referring to murderers as simply "unpopular".

As for your complaint against finality, your failure to offer an alternative system which serves the interest of finality while eliminating any risk of convicting the innocent is very telling. You can't beat something with nothing.

You claim that criminals do not have much of an advantage while ignoring all the advantages that I previously pointed out, many of which did not exist when the Due Process Clause was drafted. Who's the one not listening here?

I agree that DNA analysis should not be the final word. It's TresEquis who raised the issue of DNA analysis, as if somehow they have never convicted, only exonerated. Perhaps you can share your skepticism about DNA analysis with TresEquis.

As for bruce once again reiterating his contempt for the people, 2 responses are possible:

i. I wonder whether death penalty opponents will be so dismissive of popular opinion if polls show that they overwhelmingly oppose the death penalty.

ii. bruce seems to forget that when death penalty opponents invoke the 8th amendment to attack the death penalty that the amendment was also endorsed by state legislatures. I'm now eagerly awaiting bruce to extend his contempt for the people to an attack on the 8th amendment. (and the rest of the Constitution, for that matter)

Posted by: realist | Apr 18, 2008 12:50:29 AM

"To deny it, as you do, is to willingly remove yourself from reality. And do you really believe that the 'prompt, speedy, and efficient administration of law' is a higher value than the very life of your fellow citizens? How about making the trains run on time? That too?"

Nice touch DK--support for the death penalty gets you a thinly-veiled accusation of being a fascist. Once again, a sense of proportion from a leftist.

Posted by: federalist | Apr 18, 2008 1:16:25 AM

A sense of proportion, indeed. A sense of perspective, too. We on the left would gladly welcome you on the right to get one, but we won't hold our breath.

Realist wrote: "The posts speak for themselves. Death penalty opponents display a consistent inability to refer to death row inmates as "murderers", a legal term as soon as they have been convicted."

Actually, they would be persons convicted of murder. Since not all people convicted of murder or on death row have ever actually murdered anybody, you presume too much. I understand that you have to make that presumption given that, if you didn't, you might feel like you have some personal responsibility to make sure that the people the State kills in your name actually "deserve" it. I mean, if you can't have faith in government bureaucracy, what can you have faith in, right?

Why do you--an advocate of State killing--display an inability to refer to death row inmates as persons and an apparent need to dehumanize them?

Posted by: DK | Apr 18, 2008 2:24:35 AM

Dehumanizing prisoners is a necessary and important rhetorical flourish that is probably one of the best ways to convince people to set aside any moral reluctance people might have to killing. I have actually been to meeting where people discussed the best way to shift rhetoric to, yes, “dehumanize” someone.

Realist, I think you watch too much TV. People in jail have generally been convicted of crimes. Everyone knows this. Opposition to the death penalty doesn’t proceed from the proposition that they have not been convicted, but rather from a belief that the process of conviction is fallible or that other principles militate against the state killing people.

Nobody needs to offer an “alternative” to finality. However, you don’t seem to understand that a state’s interest in “finality” is merely an interest: like a state might have an interest in, say “safe road” or “nice libraries.” The interest must hew to other interests at times, and it is a political judgment which interest is more important in general (though the actual weighing of specific interests is usually – but not always – done by a court).

The kind of people that stand accused of crimes generally do not have the advantage in criminal proceedings. While the due process clause (and the 6th amendment) provides some guidelines as to the process that must be followed, they will always have fewer resources then the entity that decided to send them to jail, and once they are in jail they their interest in being free is always considered less important than even an interest in “finality.” (And this is true even in states that provide “adequate” resources to defendants.) Simply making the process more elaborate doesn’t mean that they have more advantages, it means that the process is more elaborate.

Posted by: S.cotus | Apr 18, 2008 6:52:26 AM

I'd believe that the "pro-death" crowd was concerned about not executing an innocent person if they weren't so busy trying to eliminate any sort of procedural guard. As it is with the pro-death crowd, I feel it is perfectly reasonable to believe that people who support the death penalty do not care whether the person being killed is actually guilty of the crime they are being executed for or not. But if a jury (stacked with only people who support the death penalty, even though stastically, no actual 12 person cross section of the community is likely to be unanimous on the issue of the death penalty since a substantial minority of voters oppose the death penalty) convicted them and sentenced them to death. And I don't care if that makes the pro-death crowd upset or if a political hack like Kent (who has repeatedly shown he is not actually interested in a rational policy debate by ignoring my posts who point out that his statements on deterrence, at best, based on faulty logic and a complete misunderstanding of deterrence theory) engages in cheap name calling at me. No, the pro-death crowd is only concerned with so-called closure for the small segment of victims they speak for (many of which find that, surprise, surprise, the state sanctioned killing did not actually provide them release).

And saying that people being released from death row without being killed receive "justice" and proves the system works is nonsense. Earl Washington, Jr. spent 18 years in a Virginia prison for a crime he did not commit. The fact that he wasn't actually murdered by Virginia does not alter that his conviction and death sentence in the first place is a sign of a hopelessly broken system.

Here I will say it: what the pro-death crowd like Scalia says about the Due Process Clause is complete and utter nonsense. It is perfectly consistent with the Constitution to say that the criminal justice system is so imperfect that there can never be sufficient due process to take a life. One can even cite James Madison from the Federalist for the proposition - "if men were angels, no government would be necessary" in a paraphrase form "if men were judged by angels, the death penalty would be Constitutional. However, men are not judged by angels, they are judged by other men who are fallable and not perfect. Therefore, there can never be a constitutional application of the death penalty because of the finality of the death penalty means that death is different" and while you may disagree that our justice system is so imperfect that a person can never adequately receive adequate due process to take his or her life, it is simply wrong to state that one cannot support that position.

Posted by: Zack | Apr 18, 2008 10:25:25 AM

Earl Washington is a violent criminal. Had he not been a violent criminal, he would never had been swept up in the murder for which he was erroneously convicted. At the end of the day, he spent 18 years in prison---that's an appropriate punishment for what he did in fact do. I don't feel sorry for Earl Washington.

And as for the death penalty being unconstitutional--given the fact that the Constitution clearly contemplates that the existence of the death penalty, it would be strange indeed if the Constitution contained a provisio, hitherto undiscovered, that forbids it. You might as well be arguing that the Constitution doesn't forbid a 34 year old from being President on the basis of the right of electors to vote for whom they please. When you make arguments like that, Zack, calling people "political hacks" is laughable.

Posted by: federalist | Apr 18, 2008 10:42:20 AM

Federalist, Let me begin by saying that I feel safer with a high percentage of the country in prison. I have suggested that an “optimal incarceration rate” is 35%, and that we should adjust our substantive and procedural laws to meet that goal. To date, you have not told me whether that number is too high or too low. Perhaps this is because you are a soft-on-crime-liberal.

Anyway, if I understand your argument, you seem to argue that the exoneration of someone formerly on death row shows that the system “works” because any injury to him is overshadowed by the fact that he is a “violent criminal.” However, because you are an admitted non-lawyer you don’t address the underlying problem of having sent someone to jail for the wrong reason. Now, perhaps this is not too much of a problem. As I said, in order to meet the 35% goal, we will need to take some shortcuts: people will need to be sent to jail for the “wrong” reasons, but since most people are undereducated, drunk, or TV-watching boobs, it isn’t as if they would ever contribute to society in a meaningful way.

Posted by: S.cotus | Apr 18, 2008 11:20:47 AM

I don't need to address the underlying problem. It is what it is. Washington was erroneously convicted. I just don't feel sorry for him, and he contributed to the soup he was in.

Posted by: federalist | Apr 18, 2008 11:47:16 AM

I feel the same way about non-lawyers.

Posted by: S.cotus | Apr 18, 2008 11:59:50 AM

Federalist, if you actually went to law school you would know that lawyers can disagree about matters of Constitutional Law and in fact, what makes something Constitutional or not is merely whether 5 justices on the Supreme Court feel the same way about an issue. You would also realize that when people apply Constitutional language in a way that you disagree with that they are not creating new rights or amending the Constitution.

My point is that saying that the Constitution seems to permit the death penalty ends the question is legally and Constitutionally wrong. It does not end the question at all but merely provides a beginning, because there is still the limitation of Due Process. Thus, if the death penalty laws fail to provide adequte Due Process protections before to taking another person's life, the existing death penalty statutes are unconstitutional. There is nothing political at all about that statement - it is simply a matter of law which can be debated. It is also a matter of law which can be debated whether the death penalty can ever be constitutional given the limitation of due process - if the legal system is so fraught with error that there are no procedural steps that can provide certainty sufficient to kill a person, the death penalty is unconstitutional. Again, there is nothing political about that statement, it is simply stating a legal argument which can be supported or opposed. Of course, if you fail to even acknowledge that the other side has a legitimate argument . . . .

Posted by: Zack | Apr 18, 2008 12:07:59 PM


Unless I'm mistaken, most citizens are not even so much as charged with murder, let alone convicted of it. This is the key distinction that sets murderers off from others and what makes them eligible for the death penalty rather than us. As that is the primary distinction, I think it's the one most worthy of our attention. Instead, I see euphemisms and evasions coming from people who oppose the death penalty. (DK's "citizens" is another. DK's haste in inventing yet another euphemism caused him to forget the recent Supreme Court decision in Medellin v. Texas. The US executes many non-citizens as well.)

Labeling death row inmates as murderers in no way causes me to forget that they are human. Quite the contrary. I don't think there are any animals that take pleasure in murdering their own and come up with all kinds of gruesome ways to torture their victims before they kill them. It seems to me that this kind of creative and sadistic pleasure is reserved only for the human race and, more specifically, to murderers. I can assure you, after having read my share of murder cases, I am entirely convinced that murderers can only be human. No lion, dolphin, wolf, snake, or any other form of life can be as ruthless as murderers.

I confess that I don't have much patience for chirping critics. I much prefer constructive ones, though I'm quite aware of your dilemma. Obviously, you can't offer any technical suggestions about how to improve the (in Justice Blackmun's lovely phrase and one that I'd be happy to claim with pride) "machinery of death". The very idea undermines any principled objection to the death penalty.

From a certain perspective, I respect a philosophical opposition more than lawyers who pretend to have technical objections when their intention is to eliminate the death penalty. (just like Baze's lawyers) The problem you have with finality is that you threaten to undermine the very concept of a justice system. If there is no finality, there can be no punishment. If there is no punishment, there is no justice system.

There are some parts of the world that don't have a justice system. Much of Somalia comes to mind. Perhaps you respect the anarchy that currently reigns in Somalia more than the justice system in the US, though for some reason, I doubt you're currently posting from Mogadishu. To put it bluntly, you can post safely from your home because of the existence of a justice system.

As for your point about the disparity of resources between prosecution and defense, I certainly agree that's true in most cases. (With O.J. Simpson being an obvious exception) Fortunately, it doesn't matter very much. The justice system believes in the principle that Justice is blind. Hence the procedural safeguards that I mentioned before.

The reality is that most people have fewer resources than the State, including the ones who have been convicted and then exonerated by the State itself. The justice system, like any logical system, is capable of correcting its own mistakes.

Posted by: realist | Apr 18, 2008 12:13:32 PM

You're right Zack, I don't give any credence to the argument that the Constitution prohibits the death penalty. Why? Because it simply does not make sense to believe that the Constitution was drafted in a manner that clearly contemplates capital punishment, yet prohibits it at the same time. That is nonsense--or is "capital crime" a null set under the Constitution?

Posted by: federalist | Apr 18, 2008 12:29:59 PM

Fist of all, why the hell does the constitution mention international law and state-sponsored sea-piracy when most people seem to think that there is no place for either in constitutional discourse?

The choice if which citizens or non-citizens to charge with murder is a political one. Obviously not all killings are murders, and many are justified or specifically allowed under politically-constructed laws. Not that there is anything wrong with that. Whether “most” people are charged with murder is irrelevant.

The DP debate is filled with euphemisms. People babbler on about “justice” (itself a euphemism for a philosophical decision about what constitutes an ideal government action), “victims’ rights” (the victim of a homicide is dead, and people seek political advantage by pretending to speak fo them), “guilt” (a hodgepodge of process and ritual), “innocence” (a hodgepodge of a lack of guilt), and the list goes on. Heck, even the word “death penalty” seems to be a euphemism for “killing that we like.”

It isn’t clear whether people on death row “liked” killing or not. However, I suspect that the state employees that are paid to kill them like their jobs. There are many other jobs out there, and it seems like a strange one to wake up in the morning, commute to work, kill someone, and come home.

You seem to think that “finality” means something more than it is. It is nothing more than the interest in a state in not revisiting punishments, which is counterbalanced against other interests. Some jurisdictions simply don’t care. Some jurisdictions allow people to set aside 20-year-old convictions. Nobody would argue that there is “no justice” in those states. There are just different priorities. Other jurisdictions have determined that a “finality” interest prevents the state from revisiting a conviction for any reason. And, the Supreme Court has weighed these various interests (provided the state actually has them), against other interests (some of which are more important.)

I didn’t watch the OJ Trial, and I don’t really know how it differs from other murder trials. It captured the attention of the lay “people” but I seriously doubt that what they think matters.

If you want suggestions on how to improve, here are a few:
1) Require all jurisdictions seeking the death penalty to post a $50,000,000 bond per persecution which is forfeit if for any reason the death penalty is not imposed;
2) Eliminate death-qualified juries. This will allow juries to actually make a choice about whether they think that it is right to kill someone given the actual set of facts.
3) Televise all executions and require that all public school children watch each one (so that a truly democratic choice can be made)
4) Provide for more discovery as of right regardless of exculpatory nature. Failing to provide discovery will result in forfeiture of the bond.
5) In all cases involving imprisonment of 20 years or more, provide a defense budget of no less than $ 25,000,000. This will enable private investigators to investigate every bit of physical evidence as well as the backgrounds of all witnesses.

Posted by: S.cotus | Apr 18, 2008 12:55:52 PM

S.cotus, while most people are horrendously stupid and highly prone to tortious behavior, the vast majority of people do not have criminal intent to harm others or their property. Do you really contend 35% of people should be in prison? I would agree if we had "criminal stupidity" laws. But based solely on the laws we have, the only people who belong in prison are those who pose a direct threat to other people or other people's property. Nobody should be in prison for drug offenses or other victimless crimes. A firm believer in the 'harm principle' I would reserve prison only for murder, rape, robbery, burglary, assault, theft, embezzlement, and the other common law crimes we learn about as 1Ls. I would allow the government to be a victim for purposes of theft cases. So tax cheats could still go to prison, as they stole from the government-victim. While making kiddie porn certainly has a victim, merely possessing it does not. Nobody should be locked up for possessing pictures, no matter how offensive and disgusting they are.

So I would contend only about .01 percent of the population should be locked up. It's certainly a truism that the more people who are locked up, the safer those not locked up will be. Lock up 99% of the population and the 1% left free will be living in paradise. But surely you see the flaw in such a system.

As for the Constitution authorizing the death penalty... it certainly contemplates it. The due process clause states nobody may be deprived of life... without due process of law. So the death penalty (with due process as a precondition thereof) was certainly contemplated. While the Bill of Rights was meant to limit government power, not authorize it, anyone who says the constitution intended to ban the death penalty is simply wrong. HOWEVER.... just because the Constitution contemplates the death penalty does not mean that evolving standards of decency cannot reach a point where the death penalty would be unconstitutional. It simply wasn't at that point at the time of the framing. Nor do I think it's at that point yet.

Posted by: bruce | Apr 18, 2008 1:12:46 PM

Federalist - I realize this is a subtle distinction which does not lend itself for soundbites, but I am not arguing that the Constitution prohibits the death penalty. Instead I am pointing out why saying the "due process clause" allows the death penalty and therefore ending the matter is not legally accurate - people can still argue about whether the death penalty can ever comply with due process (keep in mind in 1972 that the Supreme Court declared all death penalty laws that existed at the time unconstitutional due to inadequate procedural protections). I acknowleged that the death penalty is undoubttably constitutional in theory - however, that fact does not mean it is automatically constitutional as applied because theory and practice are two different animals.

Posted by: Zack | Apr 18, 2008 2:17:04 PM

Zack, this is the quote that I was responding to:

"It is perfectly consistent with the Constitution to say that the criminal justice system is so imperfect that there can never be sufficient due process to take a life."

You've pivoted. So you can take your condescending sarcasm (i.e., "I realize this is a subtle disctinction . . . .") and . . . .

For a living, I read extraodinary complicated documents--discerning the meaning from your posts is not all that difficult.

Posted by: federalist | Apr 18, 2008 3:40:54 PM

That interpretation is just as potentially valid as your view that the due proces clause prevents any argument that the death penalty is unconstitutional. In fact, it is much more consistent with the language of the 5th Amendment because it places the inquiry on whether there was due process of law which the Constitution requires judges to look at. Law is never a matter of black and white, always shades of grey.

Whether supporter or opponents of the death penalty, everyone seems to acknowledge that the existing death penalty situation is a mess. That factor alone means that one should not blindly dismiss procedural due process arguments against the death penalty.

Posted by: Zack | Apr 18, 2008 4:54:23 PM

Zack, you pivoted. Whatever. I was always referring to the per se unconstitutional argument.

In any event, any argument that the Constitution created a category of "capital crimes" and then made that category a null set is either stupid or an excuse for judicial nullification. Either way, it is not law.

Posted by: federalist | Apr 18, 2008 6:14:34 PM

realist wrote: "Labeling death row inmates as murderers in no way causes me to forget that they are human. Quite the contrary. I don't think there are any animals that take pleasure in murdering their own and come up with all kinds of gruesome ways to torture their victims before they kill them. It seems to me that this kind of creative and sadistic pleasure is reserved only for the human race and, more specifically, to murderers."

I might agree with you, but for different reasons. Make no mistake: you are a killer. (I would call you a murderer but I will grant you the highly technical--and hence non-substantive--distinction that it is a term of art.) And I do believe you take pleasure in your killings. So I agree humans are capable of it. But your statement applies less to those whom you intended it to describe than it does to you.

You aren't actually familiar with the facts of many capital murder cases, are you? Most people who have committed murders--including most people on death rows around the nation--have done so wholly without deliberation. Some even without any malicious intent. You may not know that, but that is only because you are actually extremely ignorant about the subject.* You kill "your own" more mercilessly and deliberately than probably almost all your victims killed theirs--many of whom at least have the excuse that they suffered from untreated mental illnesses at the time. (Many of those illnesses, in turn, directly limit their ability to control impulses.) So, in some respects, I agree with you. But, from my vantage point, your statement describes people like you much more than people whose irrational impulses momentarily got the better of them.

* I do not mean to use ignorant pejoratively. I mean it literally in that you do not have a base of knowledge from which to speak. Your claim to have "read [your] share of murder cases" is highly dubious, to say the least, and I am left to wonder exactly what you mean by "reading" a "murder case." If you think reading a judicial opinion means you are familiar with the facts of a case, we can go ahead and end this now. You aren't.

Posted by: DK | Apr 19, 2008 1:23:14 AM

Strangely, in some states, their constitutions DO contemplate capital crimes, but none exist, or the death penalty cannot be administered because the legislature hasn't provided for it.

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