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September 16, 2011

Justice Ginsburg expresses fondness for Furman's halt to capital punishment

This new article from the San Francisco Chronicle, headlined "Justice Ginsburg discusses equality, death penalty," reports on some notable comments by Justice Ruth Bader Ginsburg concerning the death penalty and the Supreme Court's four-decade effort to provide constitutional regulations for its administration:

Supreme Court Justice Ruth Bader Ginsburg, speaking to law students in San Francisco, called Thursday for equality for gays and lesbians and said the court should return to a 1972 ruling that halted executions nationwide....

The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.  "I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.

She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder.  Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.

Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan -- who declared in every capital case that they considered the death penalty unconstitutional -- so that she could maintain a voice in the debate.

September 16, 2011 at 03:28 PM | Permalink


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Good for her not following the path of Brennan and Marshall. Even though I agree with Brennan and Marshall's position, their 15 years of writing they would hold the death penalty unconstitutional made them look like sore losers, hurt their ability to be persuasive on subsequent issues concerning the administration of the death penalty and was inconsistent with stare decisis.

Also, it is hard for anyone today to appreciate how differently the death penalty was administered before Furman. I don't mean just in the most famous Jim Crow cases like the Scottsboro Boys. I read In Cold Blood recently, and the trial in that book occurred two months after arraignment. The defendants' lawyers were barred from admitting any evidence of their considerable mental health issues, either at the guilt phase or at the sentencing phase. And none of this seemed at all unusual for the time.

Or read the fact pattern in Boykin v. Alabama. Boykin was charged with five counts of robbery, pleads guilty with no deal at his arraignment, has a sentencing hearing where his lawyer engages in cursory cross-examination of the State's witnesses and presents no evidence on Boykin's behalf. Boykin was sentenced to death for robbery, in 1966, when no one in the United States had been executed in years.

The pre-Furman death penalty is almost unrecognizable to us today, and the decision in is the greatest reason for the change. If Ginsburg were on the Court in 1972, she would confront a completely different system that what we have today.

(If it isn't obvious, I am trying to derail the usual statements of what a horrible judge Ginsburg is and/or whether an innocent person is executed.)

Posted by: Paul | Sep 16, 2011 4:03:46 PM

Why would you want "mental health issues" admitted at the guilt phase?

How is such material?

Posted by: adamakis | Sep 16, 2011 11:37:34 PM

Ah'm sure Ruthie's a nice gal, being that she hangs out with Antonio on her days off - but I THINK SHE'S NOT WELL IF SHE SAYS WE SHOULD REFURMANIZE THE DEATH PENALTY! Once again, the Califoreignia atmosphere is inducing legal minds to lose their grip. If they ain't stopped the whole USA will end up being one big HalloocinNATION!

Luckily, she seems to know that it's wiser to go with the flow, and let the men keep charge.

Posted by: Al Ammo | Sep 17, 2011 12:33:15 PM

Adamakis, mental health issues are relevant for insanity or to negate the mental state. According to Capote, the psychiatrists who evaluted both Smith and Hickman could not testify, either at the guilt phase or the penalty phase because neither doctor would say it was certain they were legally insane. This seemed like a perfectly unremarkable rule at the time, but it is an unimaginably high standard to preclude guilt phase testimony, and refusing to admit this at the penalty phase is shocking.

The more you look at the criminal justice system even two generations ago, the more bizarre it seems to anyone with modern sensibilities. Which means that, if Ginsburg travelled back in time to 1972, she would have been horrified at things that even Thurgood Marshall would consider the ordinary way things were done.

Posted by: Paul | Sep 17, 2011 5:41:57 PM

In 1911, Justices belonged to the KKK, a lawyer founded and run fraternal organization. It lynched 1000's of prosperous blacks and seized their assets to give to lawyers and judges.

In 2011, Justices belong to the feminist movement, a lawyer founded and run witch hunt of the productive male, again to seize their assets and to give them to lawyers and judges. As history judges the racists on the Court of 1911, so will it judge the feminists and their male running dogs of 2011.

She is a disgusting human being. Pure evil. She has repeatedly signed the death warrants of viable babies without so much as a brief hearing. If a crazed paranoid schizophrenic has to be hospitalized for a week, lawyers go all out in defense of the constitution. If babies have to be slaughtered in the wombs of their mothers, none may even raise a verbal criticism of the cold blooded feminist reptile.

Posted by: Supremacy Claus | Sep 18, 2011 11:18:28 PM


I understand what you're saying.

Posted by: adamakis | Sep 19, 2011 10:36:09 AM

One would think that a more "dreadful" part of the business of SCOTUS would be to not be able to fix every bad case that comes their way. An incorrect decision is far more of a wrong than the execution of a murderer.

Posted by: federalist | Sep 19, 2011 11:32:05 AM

"She is a disgusting human being. Pure evil....the cold blooded feminist reptile."

S.C. You, not she, are the disgusing human being, pure evil. You, not she, belongs in an asylum. Please leave this blog before you drive everyone else out with your insane screed and inane rants and drivel.

Posted by: anon15 | Sep 19, 2011 8:30:26 PM

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