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Are Justices "Out of Step" on the Death Penalty?

Dahlia Lithwick has an article in today's Washington Post on "The Dying Death Penalty?" Lithiwck posits a "curious" development: Political leaders and the American public seems to have greater reservations about the death penalty, while the Supreme Court seems less likely than ever to impose constitutional constraints on how capital punishment is administered.

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.
After summarizing the changes in public opinion and the grounds for questioning capital punishment, Lithick concludes:
But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.
The problem with Lithwick's formulation is its utter failure to distinguish between law and policy. For Lithwick, what makes some justices "out of step" with the American public is their unwillingness to curtail or invalidate capital punishment and belief that "if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen." But this hardly follows. Indeed, the Court's death penalty jurisprudence should be determined by the justices' understanding of what the Constitution requires, not their feelings, misgivings, or personal sense of justice.

There are certainly grounds for misgivings about the death penalty as currently practiced, but that does not mean there is any legitimate basis for the Supreme Court to constrain or limit its use any more than it already has. And the Court is hardly "out of step" with the public if it leaves the American people ample ability to enact its policy preferences into law through the Democratic process. Indeed, what makes the Court "out of step" is when it engages in the opposite - prohibiting democratic majorities from resolving contentious political issues through their representatives and the democratic process.

Constantin:
When can I look for Lithwick's similar piece on the Court's affirmative action jurisprudence?
2.11.2007 3:14pm
josh:
Never really understood this take on capital punishment (Adler's, not Lithwick's). The constitution, not policy, prohibits cruel and unusual punishment. We can be as testualist as we want, but it is an ill-defined standard -- one of the best examples of how the Court can and must re-interperet the constitution as social norms change.

It's not the justices "feelings, misgivings, or personal sense of justice" that is at issue. It is the fact that today the majority of people feel that executing the mentally retarded or children is literally "cruel and unusual," where they might not have in years past. The fact that "tough-on-crime" notions of politics has prevented any legislative change doesn;t necessarily contradict this opinion of the populace. The fact that one politician might not want to have the next Willie Horton slung around his or her neck doesn't mean the legislative initiatives have caught up with public sentiment.
2.11.2007 3:33pm
Perseus (mail):
A Gallup poll last year showed that two-thirds of the country still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 percent) to capital punishment (47 percent) for the first time in 20 years.

That constitutes being "grievously out of step" (as if the Supreme Court is supposed be in step with public opinion in the first place)? Is the Court "grievously out of step" on the issue of abortion where support is likewise declining (and more than 2/3rds support banning partial-birth abortions)?
2.11.2007 3:34pm
Friedrich Foresight:
"... Lithwick's... utter failure to distinguish between law and policy..."

And in further news: Sun Rises in East. We are talking, after all, about a journalist who put her name to an Alliance for Justice video that made out Barry Goldwater - Barry Goldwater! - to be an anti-abortion, anti-gay-rights religious zealot, and who thinks that you can refute arguments in favour of an "arbitrary" retirement age for Justices simply by repeating the mantra that "Lifetime appointments should mean just that".

Lithwick's chatty style makes her fun to read as a gossip columnist, but she's the Cameron Diaz of constitutional analysis.

Besides, the standard template for most liberal/progressive constitutional analysis these days is to both (a) castigate conservatives and/or libertarians for being a tiny, unrepresentative, out-of-the-mainstream minority, while also (b) warning that, if the Supremes even slightly relax their 1968 declaration that such-and-such is unconstitutional, Congress and at least 45 States will legislate to make it compulsory by the next morning.
2.11.2007 3:34pm
PersonFromPorlock:
Well, yes, but there's already a reason why state-imposed death penalties are unconstitutional; by reducing the number of people participating in the economy, state executions clearly usurp the federal government's power to regulate interstate commerce.

See? ConLaw's easy when you know how. ;^)
2.11.2007 3:35pm
Federal Dog:
Lithwick seems to believe that Supreme Court justices must rule based on public opinion, and if public opinion is against the death penalty, the Court must rule that way too.


The Post should get minimally trained reporters.
2.11.2007 3:40pm
Kovarsky (mail):
This article was up on Slate yesterday, and I confess that it made me cringe, but some of you are overplaying your hands.

The accepted 8th amendment test does look to the prevalence of a particular form of punishment, as measured by the number of states that impose it. You might have a beef with that standard, but that's a beef with stare decisis, not with Lithwick. You can't advocate entirely disincorporating majority opinion here without advocating that the Court abandon it's pretty well-established method of 8th amendment inquiry.
2.11.2007 3:46pm
Kovarsky (mail):
When can I look for Lithwick's similar piece on the Court's affirmative action jurisprudence?

When the Court's affirmative action test expressly incorporates the will of political majorities like, say, its 8th amendment test.
2.11.2007 3:48pm
Constantin:
When can I look for Lithwick's similar piece on the Court's affirmative action jurisprudence?

When the Court's affirmative action test expressly incorporates the will of political majorities like, say, its 8th amendment test.

Kovarsky, you've overplayed your hand. I'm well aware of the evolving standards rationale, as you obviously are. But can you point me to the passage in Lithwick's article where she references this rationale in a formal legal context? I didn't see it. Instead, I saw just what Professor Adler did--a writer who argues that the courts should decide cases not on the law, but, say, pursuant to the will of the people when it might agree with Lithwick's and her friends' policy preferences.
2.11.2007 4:09pm
Peter B. Nordberg (mail) (www):
I don't see where Lithwick proposes or assumes that death penalty jurisprudence should simply mirror popular sentiment -- at least not in the portion of her article that has been quoted here. To me, the quoted portion merely seems to posit in broad fashion that the Court and the public have been moving in vaguely opposite directions -- more skepticism than formerly on the public's part, less skepticism than formerly on the Court's. Reasonable people could probably differ over the accuracy of that assessment, but one might certainly subscribe to it without confusing law and policy.
2.11.2007 4:26pm
Kovarsky (mail):
Constantin,

Like I said, the article made me cringe. My comments about the controlling 8th amendment test were directed at the reflexive responses about how political majorities don't matter.

I like Lithwick, I really do. But I have real problems with this article, as I have in the past with her coverage of the Roberts and Alito nominations.

Specifically, it was directed at what I perceive to be the overly rehearsed logic of "I perceive inconsistency in Lithwick's method; take to logical extreme and demand politically conservative outcome on unrelated doctrine." Fine, Lithwick's inconsistent. But let's talk about the death penalty, and not transform the post into a forum to rant about affirmative action or abortion.
2.11.2007 4:28pm
The Emperor (www):
This is an idiotic article. All nine justices might very well vote against the death penalty if given the chance through the electoral process or in a referendum. But that has nothing to do with the constitutional issues. Well, it shouldn't, anyway. With people like Lithwick, unfortunately, it seems to.
2.11.2007 4:29pm
Perseus (mail):
The new uncertainty over capital punishment ranges from queasiness over the methods of execution to concern that we are executing innocents. ...There are numerous other reasons for our growing doubts about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence that has shown that "a substantial number of death sentences have been imposed erroneously," the fact that elected judges face disproportionate pressure to impose capital punishment, and the problem of "death-qualified" jurors (those who oppose capital punishment are barred from sitting on capital cases).

These passages suggest to me that Lithwick's claim about the Supreme Court being grievously out of step with public opinion is much broader than 8th amendment jurisprudence.
2.11.2007 4:31pm
Hattio (mail):
I have to agree with Kovarsky that many commentators, and Professor Adler, are overplaying their hands. It's true as Constantin points out that she never references the 8th Amendment standard. But she also never says that the S.Ct. should decide cases on the basis of public opinion. Instead she look at particular cases in front of the court and says that certain justices seem to be ignoring reality in the belief that there aren't problems with capital cases. Given that in one of the cases involved a rape/murder, and the Defendant wanted to show that his DNA didn't match the rapists DNA, and the dissent said that was not strong enough evidence of "actual innocence" TO EVEN WARRANT A HEARING. I kinda have to agree with her. These people aren't connecting with reality. Sure, it's possible that the Defendant committed the murder without committing the rape, or raped the victim with a condom after an accomplice raped her sans condom...but here in the real world, it makes people think that maybe, just maybe, we should not fire up Sparky until we have a hearing.
2.11.2007 4:35pm
David M. Nieporent (www):
To me, the quoted portion merely seems to posit in broad fashion that the Court and the public have been moving in vaguely opposite directions -- more skepticism than formerly on the public's part, less skepticism than formerly on the Court's. Reasonable people could probably differ over the accuracy of that assessment, but one might certainly subscribe to it without confusing law and policy.
It could, if not for the fact that she described it as "out of step," a term which carries with it the implication that they're supposed to be "in step." But since one is law and another is policy, there's no reason they should be.
2.11.2007 4:43pm
ifoughtthelaw (mail) (www):
I agree that Lithwick's point seems to be descriptive (the public and the Court are moving in opposite directions) rather than normative (the Court should follow whatever trends the public does). There have been a lot of stories recently about the public's waning support for capital punishment. Lithwick is just adding an observation that the opposite seems to be happening on the court. To the extent that Lithwick is saying that the Court should be looking more closely at the death penalty, it's not because the public is doing so, it's for the REASONS that the public is doing so. She's saying that the public is seeing things that the Court refuses to see. And with a flexible standard like the Eighth Amendment (and the less negotiable requirements of the Fourteenth Amendment), that's troubling.
2.11.2007 4:45pm
Roger Schlafly (www):
As she admits:
So in the early years of the new century, the court handed down surprising decisions outlawing executions of the mentally retarded and of those who were juveniles at the time of their crimes, and refining the tests for the ineffectiveness of counsel.
So the Supreme Court has, in fact, moved radically against the death penalty in the past several years. It appears to me that the general public supports the death penalty more than the Supreme Court does.
2.11.2007 4:48pm
Scipio_79:
It would seem that the old adage that it is better to release 10 guilty men than to convict one innocent man is obsolete, especially when those 10 guilty men continue to rape and and plunder. So how about a new adage: It is better that one innocent man be executed than one guilty man be let free, because the guilty man will cause harm to more innocent people than the harm unfortunately caused to the one man executed though innocent. (a little too long for a pithy adage, I admit)
2.11.2007 4:53pm
ReaderY:
The Supreme Court is merely facilitating, not preventing, politicians from providing whatever death penalty policy they care to, liberal or conservative. The idea that the Supreme Court's view of the constitution should set some sort of a tone or message for what legislators should think about policy reflects a profound misunderstanding of the Court's role.

One might as well argue that Supreme Justice's church service attendence sends tones and messages about how Americans are supposed to attend church -- and that Justices are supposed to alter their personal religious beliefs and practices to reflect their supposed public implications. This may happen -- the public may indeed look to the Supreme Court justices for guidance about how to attend church -- but any undue sycophance on the public's part is simply not the Justices' problem. So with legislative sycophance.
2.11.2007 5:07pm
Jay Myers:
josh:

Never really understood this take on capital punishment (Adler's, not Lithwick's). The constitution, not policy, prohibits cruel and unusual punishment. We can be as testualist as we want, but it is an ill-defined standard -- one of the best examples of how the Court can and must re-interperet the constitution as social norms change.

If social norms change then there should be no problem for a majority to change the law through the political process. Politicians are successful not by blocking the strongly held sentiments of their constituants but by pandering to them. It seems highly suspect to me that a group of unelected, unaccountable judges should be changing the law of the land based on what they claim are changes in political will / social norms. If SCOTUS can decide that "The United States shall guarantee to every State in this Union a Republican Form of Government" is too vague to enforce then why shouldn't the same be true of "nor cruel and unusual punishments inflicted"? The entire ninth and tenth amendments have been neutered and effectively destroyed so I don't see why the court should hesitate at doing the same to a clause of the eighth amendment.
2.11.2007 5:08pm
Kovarsky (mail):
Roger,

I take issues with the inferences I think Lithwick seems to seek to create (I don't think her failure to make formally inaccurate arguments is an accident). But:

So the Supreme Court has, in fact, moved radically against the death penalty in the past several years. It appears to me that the general public supports the death penalty more than the Supreme Court does.

This is not "radical" stuff. You can't execute kids and mentally retarded people. I don't think you can read much into those decisions. In any event, the problem is with AEDPA and lower courts' interpretation of it, not with the Supremes.
2.11.2007 5:09pm
Scipio_79:
Kovarsky,
It's not radical to tell a large number of states that they can't execute someone simply because they're under 18? It's not radical to back up this opinion with opinions from jurists not in this country and not interpreting the US Const.? It's not radical to overturn a death penalty of a 16 year old who stated that the court would not give him the death penalty because he was under 18 and stated this before he committed heinous and barbaric acts (even though one of the Court's reasons for overturning the DP was due to the fact that "children" don't think things out and are impulsive!)?

I'd like to know your idea of "radical?"
2.11.2007 5:20pm
Justin (mail):
Without reaching the merits of Lithwick's post, I would like to briefly comment on this statement my Adler:

"There are certainly grounds for misgivings about the death penalty as currently practiced, but that does not mean there is any legitimate basis for the Supreme Court to constrain or limit its use any more than it already has."

Well, ummm...wouldn't that depend on the misgivings about the death penalty as currently practiced? If someone could show the Court to a sufficient degree of certainty that race is an extremely important motivating factor in the decision to impose the death penalty, wouldn't that "misgiving" be a "legitimate basis for the Supreme Court to constrain or limit its use"?

After all, the whole point about the bill of rights, which is an important device when discussing the power of the State to impose the ultimate deprivation on individuals, is at least to some degree whether "democratic" reforms can adequately protect important individual and minority interests. Jonathan's point seems to assume the answer is yes, but such an assumption simply sidesteps the debate entirely.
2.11.2007 5:27pm
fishbane (mail):
It is better that one innocent man be executed than one guilty man be let free, because the guilty man will cause harm to more innocent people than the harm unfortunately caused to the one man executed though innocent. (a little too long for a pithy adage, I admit)

Let me help: "It is better to execute one innocent than to disrupt a comforting regulatory regime."
2.11.2007 5:32pm
Federal Dog:
"One case last term involved a man convicted of a rape and murder, who later produced DNA evidence raising serious doubt that he was the culprit. The court ruled 5 to 3 that this new evidence warranted a new hearing. But Roberts led the dissenters, who felt it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he "was actually innocent."


Does anyone know offhand what case this is? It makes me suspicious that Lithwick fails to identify the cases she criticizes so that people can easily review them.
2.11.2007 5:32pm
Kovarsky (mail):
Fishbane,

You win best comment of the day.
2.11.2007 5:36pm
Kovarsky (mail):
Federal Dog,

It's House v. Bell. As I recall, Kennedy wrote the majority. Basically, AEDPA has a pretty high hurdle for introducing new actual innocence evidence. The evidence in this case involved, if I remember correctly, blood spillage during transportation of forensic evidence to a government lab, and exculpatory confessions from 20 years later.

The district court had a hearing, and determined there wasn't enough evidence to get through the actual innocence gateway to file a successive petition. Kennedy skated over the fact that the district court had a factual hearing and AEDPA might bind them to defer to the district court's determination. Roberts thought they had to defer on the basis of the district court factfinding.

Personally, I think Roberts won that one, but it certainly illustrates some of the problems with the AEDPA actual innocence standards that apply to procedural default, successive petitions, new evidence, etc.....
2.11.2007 5:40pm
Scipio_79:
fishbane,
thanks but maybe this is better:

It is better to execute one innocent than to disrupt a regulatory regime that is correct 99% of the time.

If you are looking for the never-wrong-never-fails DP scheme, good luck since humans have never created a fail safe system.

Personally, I beleive that SOBs that murder should rot in jail for the rest of their lives, with no cable TV, no weights, only a few books, and 1 hour a day physical activity. But apparently, that apparently equals "psychological torture" to the current bleeding heart ACLU contingent out there. Thus, since prison has become a low class club med, I believe cold blooded 1st degree murderers should be dealt with harshly.
2.11.2007 5:46pm
Federal Dog:
Thanks, Kovarsky. I'll look into it.
2.11.2007 5:48pm
Kovarsky (mail):
Scipia_79,

Out of curiosity, what is your idea of "correct." Please try to separate guilt and innocence from the appropriateness of a death sentence for the conviction.
2.11.2007 5:51pm
Viscus (mail) (www):
All of the points that Adler made here with respect to the death penalty apply with greater force to the issue of economic takings that were authorized by Kelo. We should leave that to the democratic process.

But, I know plenty of conservatives seem to want to leave things they favor (i.e. the death penalty) to the political process while things they don't favor (i.e. economic takings) should be stopped by the court.
2.11.2007 5:55pm
Hattio (mail):
Scipio_79,
Any evidence that its correct 99% of the time?
2.11.2007 6:13pm
HLSbertarian (mail):
Kovarsky's right about House v. Bell. A lot of the new evidence in the case relied on new witness testimony (3rd party confession). The dissent argued that the Supreme Court can't review this testimony de novo and overrule the district court's judgment about its reliability, given that the district judge actually saw the witnesses testify. I can't speak to what this says about AEDPA's procedural standards, but I too thought Roberts had the better end of the argument when I read the case.
2.11.2007 6:15pm
Scipio_79:
well in my state (FL) it requires a jury to find:


782.04 Murder.--

(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;


Of course, murder statutorily encompasses more situations than this in Florida, but this is the most basic definition.

In Florida, capital punishment can also be meted out for sexual molestation of a child 12 or younger, though the penalty cannot be imposed until the SCOTUS has a change of heart or change of membership. But I digress.

One is “guilty” if found so by a jury of his peers and beyond a reasonable doubt. However, you know this. Then, due to Apprendi, the jury must make a separate finding of appropriateness for the DP to be imposed. Finally, the judge must agree if the jury recommends the DP. You know all this, too.

Then, the defendant has a direct appeal to the District Court of Appeal. Then he has, in Florida, 3.850 and 3.800 collateral attacks (similar to USC 2254 and 2250, I believe). He can also appeal to the Supreme Court of Florida. He can also appeal through the federal system. Thus, once executed, if he ever is executed, numerous defense attorneys, law clerks, and judges have reviewed the case.

Thus, if a jury finds a man guilty, recommends the DP, the judge accepts and imposes the DP, the defendant fails in his direct and collateral appeals in the DCA and SC in the state, fails in his direct and collateral attacks in the fed system, doesn’t receive clemency from the governor (or governors since he is probably on death row for decades), and no new evidence turns up between the conviction and the actually enforcement of the DP, then I can sleep at night with firm but quiet conviction that a guilty man was executed and thus the "regulatory regime" was “correct.”
2.11.2007 6:16pm
HLSbertarian (mail):

All of the points that Adler made here with respect to the death penalty apply with greater force to the issue of economic takings that were authorized by Kelo. We should leave that to the democratic process.

But, I know plenty of conservatives seem to want to leave things they favor (i.e. the death penalty) to the political process while things they don't favor (i.e. economic takings) should be stopped by the court.


Careful, Viscus. "Economic takings" is a legal term (Penn Central, etc.), and Kelo had absolutely nothing to do with those.
2.11.2007 6:20pm
Scipio_79:
hattio,

no, i do not have that evidence. but i'm sure there's an article out there somewhere that give the exact number. If not, I suggest the authoring of a law review paper for somebody with more spare time than I have. If you come across such a paper, please let me know.
2.11.2007 6:21pm
Kovarsky (mail):
HLSbertarian,

Just to be clear about what I'm saying, I think Roberts had the better end of the argument becase I do think it reduced to how much deference the Supreme Court is to give district court factfinding, and I thought Kennedy did a poor job answering why he did not apply any deference to it.

But, if I considering the exculpatory evidence de novo, I think Kennedy gave it more honest treatment than did the dissent or the district court. As I recall, the DA really, really screwed up the forensic evidence in that case.
2.11.2007 6:21pm
Kovarsky (mail):
Scipio,

Why don't you try to give a "definition" of "correct" and we'll start from there. You see, we can't disprove what you're saying until you've figured out your own claim.
2.11.2007 6:23pm
Scipio_79:
K-sky,
See "8" below:

cor·rect /kəˈrɛkt/ [kuh-rekt]
–verb (used with object)
1. to set or make true, accurate, or right; remove the errors or faults from: The native guide corrected our pronunciation. The new glasses corrected his eyesight.
2. to point out or mark the errors in: The teacher corrected the examination papers.
3. to scold, rebuke, or punish in order to improve: Should parents correct their children in public?
4. to counteract the operation or effect of (something hurtful or undesirable): The medication will correct stomach acidity.
5. Mathematics, Physics. to alter or adjust so as to bring into accordance with a standard or with a required condition.
–verb (used without object)
6. to make a correction or corrections.
7. (of stock prices) to reverse a trend, esp. temporarily, as after a sharp advance or decline in previous trading sessions.
–adjective
8. conforming to fact or truth; free from error; accurate: a correct answer.
9. in accordance with an acknowledged or accepted standard; proper: correct behavior.


[Origin: 1300–50; (v.) ME correcten (< AF correcter) < L corréctus ptp. of corrigere to make straight, equiv. to cor- cor- + reg- (s. of regere to direct) + -tus ptp. suffix; (adj.) (< F correct) < L, as above]
2.11.2007 6:30pm
HLSbertarian (mail):
Kovarsky,

I'm pretty much in agreement - I myself would also probably lean toward Kennedy's more generous view of the new evidence. But you're right that Kennedy seriously weakened his opinion by not really addressing the deference question, specifically about judging the reliability of live witnesses, which was the dissent's strongest point.
2.11.2007 6:35pm
Kovarsky (mail):
Scipio,

Last time. I actually do this for a living, so I'm interested in knowing what constitutes a "correct" death sentence.

Do you mean that the person convicted was actually guilty of the crime? In that sense, maybe the number is close to 90%.

Or do you mean that imposition of the death penalty in light of the offender's attributes and the circumstances of the crime is "correct" 99% of the time, which is a claim of utterly prepostrous proportions, supported by no data that I've actually seen.

I happen to have the Hearing before the Committee on the Judiciary in the United States Senate, 109th Congress, November 16, 2005, in front of me. In, for instance, the opening statement of the hearing, they committee admits that the death penalty is imposed "erroneously" with too much regularity. These issues are variously described as "serious problems," "ugly cracks," etc.

So where are you getting your number or are you, as I suspect, making it up.
2.11.2007 6:40pm
Peter B. Nordberg (mail) (www):
David N: I'm not sure that saying the Court is "out of step" with the public on some point carries any necessary implication that the Court should be "in step." Certainly this seems a slender linguistic reed on which to rest any charge that Lithwick thinks legal arguments and policy arguments are the same thing, or that she favors a death penalty jurisprudence that simply tracks majority public sentiment -- as (let's face it) she almost certainly doesn't.
2.11.2007 6:52pm
Scipio_79:
I review postconviction relief motions all day every day, so I do this for a living too. I'm glad you restated, with precision, your query. As I stated in an aforementioned post, I have no proof that 99% of DP convictions are convictions of guilty men. And I mean guilty in the sense that they actually committed the crime in accordance to the elements of the law.

Thus, you are correct to challenge my assertion that 99% of DP sentences are correct sentences. I admittedly have no proof. However, what does the committee mean by “erroneously with too much regularity.” 1 out of 100; 1 of 10; 1 out of 1000. Their assertion is just as subjective as mine. And these are the same people telling us that nothing is wrong with social security, can’t decide whether global warming is man made or natural or a little of both, and fight over non-binding resolutions over the Iraq war. So if we are going to further discuss the efficacy of the DP, then perhaps we can find a scientific paper that provides some sort of metric or means of analysis to which we can all agree. Until then, we will be forced to continue our subjective arguing that the regulatory regime is sufficient or alternatively, the regularly regime is flawed.
2.11.2007 6:57pm
e:
Kovarsky,
Do you measure before or after the various post-conviction safeguards (direct/collateral appeal, etc.)? Also, is there any value to a distinction between legal and actual innocence?
2.11.2007 7:00pm
Kovarsky (mail):
e:

i think you see the stats based on dna testing. there's a whole other set of cases that involve things like retardation or competence, where an offender might be guilty of the underlying crime, but unconstitutionally sentenced to death.

i don't think the stats vary with respect to the sort of review involved. for instance, you could theoretically be executed in violation of the constiution if you defaulted an Atkins defense or something like that, but whatever effect those sorts of things would have on the data would be negligible.

i'm not sure what you mean by legal v. actual innocence. actual innocence is a term aedpa and the habeas jurisprudence uses to describe evidence that goes to the guilt or innocence of the offender, rather than to the adequacy of judicial process.
2.11.2007 7:13pm
egn (mail):

It is better to execute one innocent than to disrupt a regulatory regime that is correct 99% of the time.


I find the notion of the state killing an innocent person so repugnant that I don't think this is right. So the implications of this --


If you are looking for the never-wrong-never-fails DP scheme, good luck since humans have never created a fail safe system.


-- are obvious to me. How many people agree with me may determine the outcome of the 8th Amendment inquiry, depending on a crapload of things. But regardless, I'd take issue with your "pithy adage" in the DP context even if your numbers are right.
2.11.2007 8:47pm
David M. Nieporent (www):
All of the points that Adler made here with respect to the death penalty apply with greater force to the issue of economic takings that were authorized by Kelo. We should leave that to the democratic process.
That doesn't make any sense at all. The Constitution explicitly provides for the death penalty, while it forbids takings that aren't for public use. One doesn't first decide whether one likes the policy that comes from the democratic process and then use that as the basis for deciding whether to leave it to the democratic process. One looks at what the constitution says, and then uses that as the basis for deciding whether to leave it to the democratic process.

Moreover, while the existence of the death penalty is a question for the democratic process, whether to impose it in any particular case is not left, under the conservative scheme or the liberal one, to the democratic process. We already leave it to the judiciary.


Peter: Come on; the phrase "out of step" clearly has a connotation of disapproval. (I'd like to see an example of a use of the phrase that was merely descriptive and not normative.)
2.11.2007 8:52pm
Mark Field (mail):

The Constitution explicitly provides for the death penalty, while it forbids takings that aren't for public use.


I don't agree with either clause of your sentence. The Constitution does assume the existence of the death penalty, but does not "explicitly provide for it". As for takings that aren't for public use, it doesn't say that. All it says is that takings for public use have to compensated.
2.11.2007 9:35pm
David M. Nieporent (www):
The Constitution does assume the existence of the death penalty, but does not "explicitly provide for it".
Well, it's true that it actually just says that one can't deprive people of life without due process. We can conclude from that either that (a) one can't deprive people of life with due process but they forgot to mention that, or that (b) you can deprive people of life with due process. Which one seems like a more reasonable interpretation of the Due Process clause?
As for takings that aren't for public use, it doesn't say that. All it says is that takings for public use have to compensated.
Well, we can conclude from that either that (a) takings for private use don't have to be compensated, (b) takings for private use do have to be compensated but they decided not to mention that, or (c) there can't be takings for private use. Which one seems like a more reasonable interpretation of the Takings clause?
2.11.2007 10:08pm
Michelle Dulak Thomson (mail):
Peter B. Nordberg,

I'm not sure that saying the Court is "out of step" with the public on some point carries any necessary implication that the Court should be "in step." Certainly this seems a slender linguistic reed on which to rest any charge that Lithwick thinks legal arguments and policy arguments are the same thing, or that she favors a death penalty jurisprudence that simply tracks majority public sentiment — as (let's face it) she almost certainly doesn't.

What Ms. Lithwick actually wrote was "grievously out of step." I have been trying to think of a circumstance in which a state of affairs might be described as "grievous" without the slightest implication that another state of affairs would be preferable, but I've failed to come up with one. Perhaps you can help?
2.11.2007 10:32pm
Mark Field (mail):

Well, we can conclude from that either that (a) takings for private use don't have to be compensated, (b) takings for private use do have to be compensated but they decided not to mention that, or (c) there can't be takings for private use. Which one seems like a more reasonable interpretation of the Takings clause?


Ok, now let's apply your logic to the Fourth Amendment. We can conclude from it either that (a) warrants come in handy for a search but the government can just skip the process if it wants to, or (b) there can't be search without a warrant. Which one seems the more reasonable interpretation?


We can conclude from that either that (a) one can't deprive people of life with due process but they forgot to mention that, or that (b) you can deprive people of life with due process. Which one seems like a more reasonable interpretation of the Due Process clause?


Or we could conclude that the Eighth Amendment applies.
2.11.2007 10:40pm
Mark Field (mail):
I forgot to add with respect to takings that IMO the correct answer is (b).
2.11.2007 10:42pm
Michelle Dulak Thomson (mail):
Mark Field,

OT, I know, but

I forgot to add with respect to takings that IMO the correct answer is (b).

So why mention "public use" at all, if takings for public and private use are allowable with just compensation?
2.11.2007 10:52pm
Viscus (mail) (www):
HLSbertarian writes:


Careful, Viscus. "Economic takings" is a legal term (Penn Central, etc.), and Kelo had absolutely nothing to do with those.


Thanks for the info. I appreciate it.
2.11.2007 11:22pm
Kovarsky (mail):
Juxtaposing the outrage over Kelo with the collective yawn over 8th amendment cases always struck me as a cruel joke about our academic preoccupations. unfortunately, the "joke" is not so unusual.
2.11.2007 11:32pm
Mark Field (mail):

So why mention "public use" at all, if takings for public and private use are allowable with just compensation?


It's not "private use", it's "public benefit".

Linguistically, the warrant clause and the takings clause are identical: "No A unless B". In each case, they appear to have left out a key passage, namely an actual requirement. In both cases, the reason is probably the same: it was obvious to them. By that I mean that (a) they expected searches to have warrants, and (b) they expected that the federal government would not take for "public benefit". In each case the law has developed since then, leaving us with no clear guidance in the text.
2.11.2007 11:55pm
advisory opinion:


Careful, Viscus. "Economic takings" is a legal term (Penn Central, etc.), and Kelo had absolutely nothing to do with those.


Thanks for the info. I appreciate it.


lol!

Aren't you going to argue that you are under "no particular obligation to use a particular definition"? Pity.
2.12.2007 4:50am
Virginia:
With such a dumb article it's hard to know where to start my criticism. I've alsways thought the "death penalty vs. life in prison without parole" question that some polls ask was among the most worthless questions polled. That's not something most people can answer in the abstract. Unless you either categorically oppose the death penalty, or believe its imposition should be automatic for all murders, you pretty much have to concede that some people charged with murder deserve to be executed and some deserve lesser punishment (and the innocent ones, of course, deserve acquittal).

Death penalty supporters could get just as much mileage by quoting people's responses to the question, "Do you think that we should execute Osama bin Laden if we capture him and he is found guilty after a trial?" and claiming that yes answers indicate "death penalty supporters." I think the "yes" on that one was about 85% when they asked it a few years back.

On a somewhat unrelated note, Lithwick's claim about declining public support for the death penalty is just plain inaccurate, if opinion polls mean anything. Go to pollingreport.com and you'll see that the decline (from a high in the early 1990s of about 80%) came in the mid 1990s. The last 8-10 years support has been constant in the 64-72% range (i.e., about 2/3 of Americans support it, just under 30% oppose it, and a few are undecided).
2.12.2007 9:57am
Viscus (mail) (www):
advisory opinion,


Aren't you going to argue that you are under "no particular obligation to use a particular definition"? Pity.


The difference between HLSbertarian's helpful comment and yours, is that I actually learned something useful from HLSbertarian.

The difference here between what HLSbertarin did and what you did, is that HLSbertarian reasonably, correctly and intelligently interpreted me as referring to cases such as Kelo instead of cases like Penn Central, even though I used a word that is apparently a legal term of art used to refer to the latter rather than the former. He merely informed me that I was misusing a term of art. He did not mangle my meaning.

You certainly could learn something from HLSbertarian. He is obviously of superior intelligence compared to you.
2.12.2007 1:50pm
Matthew Friendly (mail):
Ok, now let's apply your logic to the Fourth Amendment. We can conclude from it either that (a) warrants come in handy for a search but the government can just skip the process if it wants to, or (b) there can't be search without a warrant. Which one seems the more reasonable interpretation?

Hey Mark Field: How about (a)? You probably think (b), but you're wrong. The standard is reasonableness, so if it's reasonable to search and/or seize without a warrant it's perfectly proper for the government to do so. Similarly, some searches with warrants can still be found to be improper. Nice try, though.
2.12.2007 2:20pm
HLSbertarian (mail):

You certainly could learn something from HLSbertarian. He is obviously of superior intelligence compared to you.


From reading advisory opinion's usual comments here, this has a very high chance of not being true.

Oh, and thanks Viscus for not taking my comment as snarky - when I saw it later I worried it could come off that way.
2.12.2007 3:14pm
advisory opinion:

. . . even though I used a word that is apparently a legal term of art used to refer to the latter rather than the former. He merely informed me that I was misusing a term of art. He did not mangle my meaning.


Indeed he did not. You did. You confused regulatory takings with the power of eminent domain in Kelo. You misapplied "economic takings" to Kelo, just as you misapplied standard definitions of logic to a thread about logical fallacies. You can hardly blame me for reacting with amusement when you get caught yet AGAIN (!) making up your own definitions as you waddle along, lecturing on Kelo. In fact, it's hilarious.

So please, it's not clever to blame others for "mangling" your meaning when you bastardized the meanings to begin with. All I'm noting is that now that you've been caught out a second time, your reaction is muted instead of highly defensive as before, when essentially the same mistake was pointed out in harsher terms.

Perhaps you've learnt your lesson? :-)
2.12.2007 5:53pm
Peter B. Nordberg (mail) (www):
Michelle Dulak Thomson,

You're right. The word "grievously" does introduce normative overtones. And inasmuch as Lithwick has claimed, as recently as today, that she picks her words carefully, it won't do, I suppose, to chalk it up to a poor choice of language. But I still think it's a stretch to impute to Lithwick, based on this language, any view that if the Supreme Court's decisions are not in lockstep with public opinion, those decisions must, for that reason, be grievously mistaken as a matter of legal doctrine. Something might depend, I suppose -- and does depend for Lithwick, I suspect -- on the details of the discrepancy.

In other words, I think "grievously out of step" is not very robustly supportive of the original post's stated thesis: "utter failure to distinguish law and policy."
2.12.2007 9:28pm
Viscus (mail) (www):
advisory opinion,

I indeed have learned three lessons.

(1) You are incapable of comprehending the simple distinction between mangling meaning on one hand and correct interpretation of meaning while bringing up the way a word is used as a term of art on the other. Is this really that confusing of a definition? I though HLSbertarian said you were smart.

(2) There is no reason to take you seriously.

(3) You are unconstitutional for good reason!

Let us go to the quote, shall we:


You confused regulatory takings with the power of eminent domain in Kelo.


Incorrect. I did not confuse the two. I used to the term of art "economic takings" to refer to Kelo type cases when this is apparently a term of art used to refer to Penn Central type cases. Substantively, I did not confuse anything. I simply used a term of art, in the context of a legal discussion, incorrectly. But I don't expect you to be intelligent enough to understand that. I have very low expectations for you, believe me.

(BTW, there is no reason that takings that are justified based on economic development, like those in Kelo, should not be called economic takings. Except that they are apparently not, that is not the convention, since that phrase is apparently already reserved for something else.)

Prediction: If you are foolish enough to respond to this post when you are so blatantly wrong, you will fail to demonstrated understanding of the distinction between (1) correct interpretation and correcting word choice versus (2) incorrect interpretation and attaching an unreasonable definition to a word choice. The two situations can be further distinguished because before, I had attached reasonable definitions to the words, which makes your willful misinterpretation all the more baffling, whereas here I made a unreasonable mistake with a term of art.

Anyway, I do find you amusing. In a mockable sort of way.
2.13.2007 6:57am
James Fulford (mail):
For a discussion how many guilty men should go freen, see "n Guilty Men" by Sascha Volokh.
2.13.2007 11:50am
advisory opinion:

Incorrect. I did not confuse the two. I used to the term . . . to refer to Kelo type cases when this is apparently a term . . . used to refer to Penn Central type cases.


Oops. Self admitted confusion there.

Don't apply for law school just yet . . .


. . . there is no reason that takings that are justified based on economic development, like those in Kelo, should not be called economic takings.


lol! The contortions begin again, as predicted by my first comment. Oh I'm sorry. I forgot you were a bit of a definition mangling hack, so perhaps I'll explain.

Economic takings are a species of regulatory takings that were not at issue in Kelo. You used the term wrongly to mean the exercise of eminent domain power in Kelo. Ergo, you confused the two, and you misapplied the term, however you want to spin it and justify your bumbling mishandling of legal terms. Why do you still deny you got it wrong? It's embarrassing. But of course, shame has no effect on you.

Anyway, I must say I'm quite flattered that you imitate my stylistic barbs. I say I'm amused, you say you're amused. I made a prediction in regards to your response in another thread, you use the same mode of expression in this thread.

Neither original nor smart, but I'm glad you manage a reasonable facsimile of intelligence.
2.13.2007 4:47pm
Viscus (mail) (www):
As predicted, advisory opinion demonstrates his lack of intelligence by failing to grasp even a simple distinction.

Oh, and advisory opinion apparently thinks that he invented sarcasm, so that if one responds to his failure to grasp basic points with sarcasm, he thinks you must be imitating him.

Your a genius.

By the way, using the wrong term is not the same as confusing two things. See, if there is this thing, let us call it X. There is another thing called Y. The name of the thing called X could be A, but it isn't. But you use the word A to refer to it anyway. That isn't conceptual confusion, that is using the wrong word.

HLSbertarian understood that I meant X even if I said A. He would be more similar to you if he had interpreted me as meaning Y, even if that made my point nonsensical.

HLSbertarin chose the sensible interpretation. That is what makes him and 95% of the population more intelligent than you.

But, your idiocy is amusing, so I will always welcome your comments.
2.14.2007 2:41am
Viscus (mail) (www):
By the way, my prediction did come true.

Advisory opinion failed to grasp the very distinction that I predicted he would. Why would I go to law school when I am obviously psychic?
2.14.2007 2:42am
advisory opinion:
. . . let us call it X. There is another thing called Y. The name of the thing called X could be A, but it isn't. But you use the word A to refer to it anyway. That isn't conceptual confusion, that is using the wrong word.


Failed analogy. In this case, there is a thing called X ("economic takings") and there is another thing called Y ("power of eminent domain as exercised in Kelo"). You used X to refer to Y, thereby CONFUSING YOUR TERMS. Stop persisting like a stubborn, insistent mule against a word that aptly describes your mistake: "confusion".


using the wrong term is not the same as confusing two things.


Actually it is. Your incompetence in this regard is well documented. Explore the dictionary entry for "confuse":


2. a. To mistake (for another): confused effusiveness with affection.


You ignorantly mistook economic takings for the power of eminent domain as exercised in Kelo. You're confused.

Stop making excuses for your incompetence.


Your [sic] a genius.


Quite. Now acknowledge your betters and desist from further embarrassing yourself. Ciao.
2.14.2007 6:56am
advisory opinion:

Why would I go to law school . . .


lol! So proud of your ignorance. What a surprise.
2.14.2007 6:59am
Viscus (mail) (www):
Once again, advisory opinion fails to understand very simple distinctions.

Misusing a term of art versus substantive confusion. Apparently, that is too hard of a distinction for a small mind like advisory opinion to grasp.
2.14.2007 9:36pm
advisory opinion:
No. YOU failed to take the reasonable interpretation of what I said. Oh wait, that's what you accused me of in the first place, except that in my case, I took the _correct_ definitional meaning of legal and logical terms while you mangled them; while in your case, you've simply failed to consult a dictionary.

You're hosed. Give it up.
2.15.2007 12:58am
Viscus (mail) (www):
"simply failed to consult the dictionary"

I take it by saying that this is a "simple" error that you are finally distinguishing between it and substantive confusion. I suppose that now you can see that you were mangling my substantive meaning before, where HLSbertarian never did so.

Finally.

And I thought you were hopeless.
2.15.2007 1:35am
advisory opinion:
lol? Nobody ever said there was no distinction between types of confusion. You're still confused, whichever type it is. You're cornered and lashing out at a strawman.


I suppose that now you can see that you were mangling my substantive meaning before


No. I took the _correct_ definitional meanings of legal and logical terms. You mangled them, making up your own meanings as you go along. Stop blaming others for using the _correct_ definitional meanings while making excuses for your own incompetence.

We've come full circle. Not only did you mangle "economic takings" by attaching _incorrect_ meanings to terms with standard definitions, you're hoist by your own petard for failing to take a sensible interpretation of what "confusion" means because you stupidly failed to consult a dictionary. The very thing you accuse others of doing:


HLSbertarin chose the sensible interpretation. That is what makes him and 95% of the population more intelligent than you


Oh well. I guess that makes 95% + HLSbertarian + me more intelligent than you then. lol! Dim, recalcitrant and stubborn, that's why you persist.

Time for you to cut your losses and give up the ghost.
2.15.2007 2:01am
advisory opinion:
ok, I'm wasting time with this "viscus" who clearly never had a shred of legal training or a schooling in logic. In fact, he got schooled. No cogent reply is possible to my last post, so he's just flailing insistently because it's the last thing he'll do.

Game over. Cya.
2.15.2007 2:06am
Viscus (mail) (www):
At last, advisory opinion surrenders due to his inferior intellect. It is a glorious day indeed.
2.15.2007 2:42am