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More on the Supreme Court and the Death Penalty:
I'll second my co-blogger Jonathan Adler's criticism of Dahlia Lithwick's latest column, and I'll add another concern: the apparent lack of evidence to support Lithwick's central thesis.

  Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "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" at the Supreme Court.

  But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:
  1. In one recent case the Supreme Court overturned a capital conviction but Chief Justice Roberts wrote a dissent.

  2. In a 2005 case the Court overturned another capital conviction, reversing a decision written by then-Judge Samuel Alito.

  3. In a capital case last year, Justice Scalia wrote a concurrence that included very heated rhetoric.

  4. In a recent oral argument, Chief Justice Roberts asked a question that seemed to question some of the Court's recent decisions that increased judicial scrutiny of the death penalty.
  I'm not sure why any of these examples are supposed to establish that the Court is out of step with public opinion (assuming, for purposes of this post, that this would be a criticism if true). Granted, it suggests that some individual Justices favor narrowing the role of the courts in the implementation of the death penalty. But none of the evidence actually seems to go to the question of what a majority of the Court has done. And to the extent Lithwick's point is that the Court may change its direction in the future, surely the same can be said about the direction of public opinion.

  UPDATE: Ed Whelan adds more thoughts here.
Kovarsky (mail):
This article is so unfortunate in that it promotes the wrong institutional focus. The problem is with AEDPA and with the lower courts, not anything the Supremes have done.

In fairness to Lithwick, however, Thomas and Scalia consistently dissent on the ground that they will not adhere to 8th circuit precedent, which incorporates something of a majority rule.
2.11.2007 5:58pm
Zoe1 (mail):
Kovarsky,

Does the 8th Amendment really "incorporate a majority rule"? Seems to me that it allows nationwide majority preference to trump local majority preferences.
2.11.2007 6:03pm
Kovarsky (mail):
Zoe1,

It's an evolving standards of decency test. Basically the doctrine requires the Court to look at "objective indicia" of moral approbation, such as state legislation. That's all I meant.
2.11.2007 6:13pm
Perseus (mail):
And there is some reason to fear that some justices don't share the burgeoning sense that the machinery of death in this country is broken. One is the new chief justice, John G. Roberts Jr., who, when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

How is a memo written 20 years ago while serving at the pleasure of the president good evidence that Roberts does not share "the burgeoning sense that the machinery of death in this country is broken"?
2.11.2007 6:49pm
ReaderY:
The Clinton appointments (Breyer and Ginsberg) result in the reversal of a couple of earlier 5-4 precedents to a new 5-4 position, and a liberalizing of death penalty decisions in the late 1990s and early 2000s, years after the appointments. Now that O'Conner has been replaced by the quitely likely more conservative Alito, it is entirely possible that there will be yet another reversal and older 5-4 precedents will be restored, and the Court may become a bit more conservative if, as predicted, Kennedy replaces O'Conner as the new center of gravity on this issue. All this, however, remains to be seen. It takes years for new appointments to result in changes in the Court's positions -- Lawrence v. Texas, resulting from the replacement of Justice White by Justice Breyer more than a decade prior to the decision, is an example of how delayed changes can be.
2.11.2007 6:58pm
Anon2:
Well another way of looking at it is that as the executive moderates on the death penalty, the courts have less and less cause to overturn. This matches up exactly with Lithwick's observations (as she ascribes their significance).

The court is become less resistant precisely because the executive is moderating.

Lithwick doesn't seem to be able to distinguish 'absolute' and 'relative' effects.

Of course her observations themselves seem like grasping at straws....
2.11.2007 7:17pm
Pub Editor (mail):
ReaderY:

It's a minor detail and does not change your larger point about shifting majorities, but Justice Byron White resigned on June 28, 1993. President Clinton filled that vacancy with Justice Ruth Bader Ginsburg, who took office August 10, 1993. Justice Breyer did not arrive on the Court until August 3, 1994 (after Justice Blackmun finally retired).
2.11.2007 7:19pm
Kovarsky (mail):
The court is become less resistant precisely because the executive is moderating.

Most executive decisions to seek the death penalty occur at the state level. And I don't know what state executive you're talking about, but the view from Texas doesn't look at all like that.
2.11.2007 7:28pm
frankcross (mail):
Anon makes a good point and actually even Texas is easing away from the death penalty. From 1997-2002, Texas averaged around 30 executions a year. Since then, it's been a little over 20.
2.11.2007 7:36pm
Alex 2005 (mail):
Orin, if your point is that Lithwick's guess about the direction the "new" Supremem Court will take in death penalty cases is premature given the scant evidence - that's an absolutely fair point. But I am not sure if she is advancing a thesis that suggests anything more than that the attitudes of Supreme Court justices toward the death penalty may (in the future) diverge from public attitudes about it.
2.11.2007 7:45pm
OrinKerr:
Alex2005,

Lithwick's claim was that the Supreme Court "looks grievously out of step" with the public. This sounds like she wants to compare the Court today with public opinion today. At the same time, some of her examples suggest that she is actually predicting what the Supreme Court may do in the future. Lithwick doesn't offer throughts on what public opinion in the future may look like, though, which seems puzzling if her point was to say that the two were out of step with each other. Perhaps her point is that it's *possible* that in the future the Supreme Court will enter rulings that are out of step from majority public opinion during the 2004-2006 period? I suppose that's undeniably true, but it seems so obvious as to be a tough basis for a newspaper column.
2.11.2007 7:56pm
Kovarsky (mail):
I'm adverse to the Texas AG on several cases, and I can assure you that whatever stats you are observing do not have anything to do with the executive going soft on the death penalty.
2.11.2007 8:59pm
byomtov (mail):
From 1997-2002, Texas averaged around 30 executions a year. Since then, it's been a little over 20.

Offhand, this doesn't strike me as a significant reduction.
2.11.2007 9:31pm
Kovarsky (mail):
2002 was also atkins. since 2002, texas has also run headlong into a lot of penry jurisprudence that has slowed the pace; the number have absolutely nothing to do with a diminished executive commitment to exacting capital punihsment in cases it deems appropriate.
2.11.2007 9:39pm
Dave Hardy (mail) (www):
One might wonder what the Supremes' ruling that juries must decide the issue will do. I'm completely in favor of juries' powers -- and may someday have time to write an article on how that has been contracted over the last couple of centuries. But as a practical matter, for every jury the murder case in front of them will be worst such case they ever saw, with gory photos and a view of life at its most depraved (or maybe the two appeals I defended were atypical, but I doubt that).
2.11.2007 9:59pm
Lev:
Kovarsky


executive commitment to exacting capital punihsment in cases it deems appropriate.


Do I correctly assume from that that when you say "executive" you are referring to the local district attorneys?
2.11.2007 10:02pm
Kovarsky (mail):
Lev,

I don't interact with the DAs. I mean the AG.
2.11.2007 10:03pm
Alex 2005 (mail):
Orin,
In response to your comment, I think the unstated assumption in her piece is that public attitudes toward the death penalty will continue to migrate toward a position that an ever larger portion of the population will either outright reject the death penalty or express a general lack of confidence in it (e.g., her citation to the survey that 'more' people support life in prison than the detath penalty). But the attitude reflected on the Supreme Court will ultimately diverge from that position because those justices recently appointed may (likely?) maintain attitudes toward the death penalty that will be ultimately "out of step" when contrasted with the shift in public attitudes. And because the opportunity to replace Supreme Court justices has not been an all too frequent event (at least recently), the attitudes of the Supreme Court will long term be (to use her phrase again) "out of step" with the public's (on a side note: whether these alleged shifts in public attitudes are translated into legislative changes is a different story.) In the short term, this would be reflected by Supreme Court decisions that do not make incremental steps toward "cabining" the mechanism of death -- as the public seemingly would like. I admit that it takes a bit of "reading into" her piece to get this far with the analysis -- but that was my take on it.

But I take your main criticism as more damning to her piece in general -- she's trying to make a mountain out of a molehill of evidence.
2.11.2007 10:13pm
Truth Seeker:
From 1997-2002, Texas averaged around 30 executions a year. Since then, it's been a little over 20.

Offhand, this doesn't strike me as a significant reduction.


So if they were averaging 20 and it changed to 30 you wouldn't see that as significant either?
2.11.2007 10:19pm
Lev:
Kovarsky

]I don't interact with the DAs. I mean the AG.

Then you should explain exactly what you are talking about.

In Texas, the decision to charge or not charge a defendant with capital murder is made by the local District Attorneys. The sentence of death is imposed after a trial in local criminal court in front of a local jury conducted by, for the people, the local DA.

The AG has nothing to do with that.

The convicted defendant may appeal to the Board of Pardons and Paroles, by appeal I mean ask, for the Board of Pardons and paroles to recommend to the Governor a reduction of sentence ranging from life without parole to a pardon. If and only if the Board of Pardons and Paroles makes such a recommendation may the Governor perform the action, presumably also advised by the AG.

Aside from that, the Governor may, on his own, presumably as advised by the AG, give one (1) thirty extension of the execution.

What is it you are talking about?
2.11.2007 10:29pm
byomtov (mail):
So if they were averaging 20 and it changed to 30 you wouldn't see that as significant either?

As in the case of the actual numbers, it would depend on the exact figures, other circumstances, how the time periods for comparison were chosen, etc.

In any case, the difference between twenty and thirty does not change my low opinion of Texas criminal justice.
2.11.2007 10:30pm
Kovarsky (mail):
Lev,

The AG conducts federal postconviction litigation.
2.11.2007 10:34pm
Kovarsky (mail):
Lev,

I'm sorry if you're not familiar with the way capital litigation is conducted, but please take it down a notch with whatever it is you're trying to insinuate by your repeated and loaded requests for me to explain myself.
2.11.2007 10:38pm
Lev:
Kovarsky


I'm sorry if you're not familiar with the way capital litigation is conducted, but please take it down a notch with whatever it is you're trying to insinuate by your repeated and loaded requests for me to explain myself.


You are mighty defensive about your state of knowledge.

A fairly objective reading of my post(s) would be that I set forth how death penalties are arrived at in Texas, and then asked you what you meant when you said:


Most executive decisions to seek the death penalty occur at the state level.


You still have not explained that statement.

I could surmise that what you meant to say was something like:

"I deal with the State AG in the federal court review of Texas state death penalty cases and have not noticed that the state executive has relented at all in its defense of the death penalty as applied in the state courts."

But I don't know what you meant, since that which I surmised you might have meant doesn't sound much like:


Most executive decisions to seek the death penalty occur at the state level.


since local DAs, not the AG, are the ones who make the decision to seek the death penalty, as opposed to defend the death penalty in federal court once applied.

Perhaps you need to climb down off your high horse.
2.11.2007 10:53pm
OrinKerr:
Lev, Kovarsky --

Chill out, folks.

-- The Mgmt.
2.11.2007 10:59pm
Kovarsky (mail):
Lev,

All I meant to say was that I have a first-hand appreciation of the executive's commitment to pursuing the death penalty where it believes appropriate. You went into some long-winded explanation about how the AG has almost nothing to do with capital litigation, which is just wrong.

Nothing I said was the slightest bit misleading.
2.11.2007 11:03pm
Kovarsky (mail):
Orin,

FYI, last message was written before I got the management memo. Feel free to take any and all commentary on the subject down; it's pretty peripheral.
2.11.2007 11:10pm
Lev:
Kovarsky

It is too bad you didn't read what I actually said.


Nothing I said was the slightest bit misleading.


And nothing I said was misleading either.

For the record, it is highly unlikely that a public official opposed to the death penalty would get elected in Texas, because a majority of the people of Texas know that there are in fact, some people who need killing, i.e. the death penalty, for what they have done.

The AG is an elected position.
2.11.2007 11:11pm
Kovarsky (mail):
For the record, it is highly unlikely that a public official opposed to the death penalty would get elected in Texas,

You can say that again.
2.11.2007 11:14pm
Lev:
Referring to


frankcross (mail):
Anon makes a good point and actually even Texas is easing away from the death penalty. From 1997-2002, Texas averaged around 30 executions a year. Since then, it's been a little over 20.


I could be wrong, but I think the "decrease" is the result of, to be crude, a backlog being reduced as the various appeals etc. have ended.
2.11.2007 11:15pm
Kovarsky (mail):
Lev,

As I tried to explain above, the atkins decision came down and many capital offenders acquired a constitutional claim against their punishment. These claims had to go through state courts, and their all hitting the federal courts right now.

There are other reasons, my only point had been that it is not attributable to "moderation" by the executive.
2.11.2007 11:20pm
Visitor Again:
Anyone with the least familiarity with capital litigation coming from Texas knows that the Texas executive branch, represented by the A.G., has fought tooth and nail to defend capital convictions even when they were plainly unlawfully achieved under the U.S. Supreme Court's capital jurisprudence. Admittedly, the Texas executive has been encouraged in this by a certain recalcitrance on the bench.
2.12.2007 7:32am
Virginia:
With such a dumb article it's hard to know where to start my criticism. I've always 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 9:59am
Houston Lawyer:
Part of the decline in Texas death penalty cases could be from the reduced homicide rate in Houston over the last two decades. Back in the oil boom days, the murder rate here was much higher, I believe reflecting the arrival of roudy elements looking to make a quick dollar. It takes decades to work through that kind of backlog.

I haven't heard any indication that Mr. Rosenthal, who replaced Johnny Holmes as Harris County DA a few years ago, is any less interested in seeking the death penalty in appropriate cases. I believe the Harris County DA brings more death penalty cases than any other in the nation.
2.12.2007 11:43am
rothmatisseko (mail) (www):
@Kovarsky:

"Thomas and Scalia consistently dissent on the ground that they will not adhere to 8th circuit precedent. . . . "

Yep. SCOTUS Petitioners really have to win claims that the sentencer wasn't able to consider all the mitigating evidence by a 5-2 margin, since those two will not entertain Lockett/Penry arguments. So much for stare decisis.

". . . .which incorporates something of a majority rule."


I disagree that a "standard" requires a "majority."
2.13.2007 3:03pm
rothmatisseko (mail) (www):
right...that's 8th _Amendment_ precedent....
2.13.2007 4:59pm