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Supreme Court Upholds Execution Protocol:
The Supreme Court handed down Baze v. Rees this morning, upholding the three-drug protocol. The opinion is here. I have to hit the road, unfortunately, so I won't be able to blog more on it right away, but it looks like the vote was ultimately 7-2 to allow the protocol. At the same time, he Court was splintered as to the rationale: There was no majority opinion on exactly what the correct standard is for the constitutionality of execution protocols. My sense is that under the Marks rule, however, the Roberts plurality opinion can be treated as the Court's binding opinion. But that's just based on a quick skim. More later, when I'm back at my computer.
Carolina:
Thomas' concurrence is masterful. Roberts' plurality opinion, for the reasons set forth by Justice Thomas, is quite disappointing.
4.16.2008 12:06pm
therut:
As it should be. I can not believe the case even got to the USSC.
4.16.2008 12:33pm
SDProsecutor:
And now the way is paved for a challenge that a lethal opioid injection is a more appropriate protocol. There will be a court that will find it to be more than "merely ... a slightly or marginally safe alternative." And, a state's claim that a murderer doesn't deserve to go to his or her death in a euphoric state (think an OD on heroin) is not likely to be found to be a "legitimate penological justification."
4.16.2008 12:52pm
Donkus:
Well after reading that, I don't think Scalia is going to be invited to be invited to Stevens' birthday party ;) I agree with Scalia on this one, but I think he need to chill out a bit. Perhaps some medicinal marijuana would help (yes that's a cheap reference to Raich).

Agree with Carolina - Thomas has it right.
4.16.2008 12:56pm
Jeff Lebowski (mail):
I agree with both Carolina and Donkus.

Thomas was exactly right. So was Scalia, although the smackdown was a little over the top, IMHO.
4.16.2008 1:08pm
David M. Nieporent (www):
I do think that Ginsburg reading of the Eyelash Brushing Clause of the eighth amendment is probably the most creative use of judicial activism since Griswold.
4.16.2008 1:20pm
David M. Nieporent (www):
Ginsburg's
4.16.2008 1:21pm
Asher Steinberg (mail):
I agree with Scalia, but does it necessarily follow that, just because the Constitution mentions something, it's permissible? Suppose the Constitution mentioned segregation in some context (I can't imagine what context, but suppose), not predating the adoption of the Fourteenth Amendment - would that mean that the Fourteenth Amendment can't be read to prohibit segregation? If you're a thoroughgoing originalist, I guess you have to say yes, but I wouldn't.
4.16.2008 1:26pm
TruePath (mail) (www):
What I find so horrible about the three drug protocol is that it would be so easy to use a procedure that posed no risk of pain. The reason I tend to think that the standard three drug protocol qualifies as cruel and unusual is because it involves the totally unnecessary chance of imposition of suffering. It would be quite cheap and simple just to execute criminals with an overdose of opiates and there would be no danger of pain.

It drives me nuts that bureaucratic rules are stopping such an obviously preferable solution (the problem as I understand it is that controlled substances are only available via prescription which doctors are unwilling to provide for executions but a simple change in the law could address this problem).
4.16.2008 1:46pm
JonC:
Random aside: when the Catholic majority on SCOTUS upholds abortion restrictions, it's bashed by the commentariat for what we're supposed to believe is an obvious abdication of judicial responsibility in favor of religious concerns. I'll bet it's long odds that when the same five Catholic Justices uphold the death penalty, as effectively happened here, they'll be given credit for demonstrating independence from the dictates of their faith.
4.16.2008 1:54pm
Virginian:
I concur with those who have praised Thomas' opinion. My favorite line: "It appears the Constitution is 'evolving' even faster than I suspected."
4.16.2008 1:59pm
cjwynes (mail):
Well, score this in the "loss" column for the cynics (which usually includes myself.) When Breyer suggested at oral argument that he was going to be scouring the record and the zillions of documents in amici to assess the actual risk of unnecessary suffering, I suspected he would cherry-pick a few things to justify voting to outlaw the procedure. Lo and behold, he actually did read all that stuff (or his clerks did) and he came out the other way. So Breyer isn't just finding ways to justify reaching leftist conclusions.

Although that raises another issue about him, because it sometimes seems like Breyer thinks of himself more like a trial judge in a fact-finding role than as an appellate judge.
4.16.2008 2:04pm
TomB (mail):
The latest chapters in the unending charade (or kabuki, if you will) surrounding capital cases is hot off the presses. Seven more opinions to fit on the head of this crowded pin.

But Justice Stevens delivers a rare and refreshing thing -- an honest, straightforward opinion. He shockingly admits that he opposes the death penalty for his own personal reasons, and can't support his opinion in a legal or constitutional way. But he concedes that he's on the wrong side of the argument today. He can't even come up with the usual obtuse reasons to limit capital punishment. He knows that the Court, most of the Legislatures, and most of the People are against him, but he'd still like to overturn the death penalty in his lifetime. So bring him another case and let's have it out, he says.

Justice Scalia calls Stevens on his ruse, but not bitterly in my opinion. I think both of them are actually enjoying this repartee. Bring it on, they're both saying.

Justice Thomas, meanwhile, disrobes the Emperor. Actually, the Emperor was always naked but Justice Thomas forces us to look directly at the nakedness. "[I]t is clear that the Eighth Amendment does not prohibit the death penalty." Bam. "Thrice the Court has considered a challenge to a modern method of execution, and thrice it has rejected the challenge, each time emphasizing that the Eighth Amendment is aimed at methods of execution purposely designed to inflict pain." Boom. "We have neither the authority nor the expertise to micromanage the States' administration of the death penalty in this manner." Bada-bing.

And I'm not going to make fun of Ginsburg's dissent, though it's easy pickings. She is resolute in her opposition to the death penalty but unwilling to just admit it. What's the opposite of straightforward? Oh, that would be the tactical approach by death penalty opponents -- the meandering, opportunistic, obfuscating, delaying, eyelash-stroking, and frustrating path toward the only end-point they think is correct, their passionate moral view that unfortunately is at odds with the People. The People who bitterly cling to the death penalty.
4.16.2008 2:12pm
Pub Editor:
I guess this is the Catholic-majority Court's birthday present for Pope Benedict on the occasion of his 81st birthday and first visit to the U.S. as pope. Heh. ;-)
4.16.2008 2:15pm
Pub Editor:
Donkus, Jeff and others:

I agree, and this is not the first time that J. Scalia has let his temper show in his opinions. I love (most of) his positions and his general constitutional approach, but this opinion is just one more datum of evidence that maybe he doesn't (and never did) have the temperament to be Chief Justice (as many were advocating back in 2005).
4.16.2008 2:18pm
Kovarsky (mail):
i have yet to read the opinion in full, but for those of you who "don't understand how this case got up in the first case", let me provide some background.

this was the first time the three drug cocktail protocol was presented not as in a motion to stay exection, but in a less dramatic procedural posture. that's why cert was granted.

when it got up there, everyone realized that this was probably a less than ideal case to consider the appropriate standard for the three drug cocktail cases, because kentucky actually had pretty good execution protocols. once the court got a careful look at the record, i'm guessing the justices wished they'd chosen another case to consider the issue.

that being said, if you what you mean is that you don't understand why the 8th amendment standard to be applied to execution procedure is even a question, then i'm guessing that you are either some caricaturish idealogue or are hopelessly uninformed about the topic.
4.16.2008 2:31pm
PLR:
So the decision comes out 3 to 2, with 3 concurrences.

Thanks, Chief Justice Roberts. You're doing a helluva job keeping the appellate lawyers gainfully employed.
4.16.2008 2:34pm
PLR:
Make that 4 concurrences (nice last paragraph, Justice Stevens!).
4.16.2008 2:36pm
Casual Peruser:
PLR--my thoughts were along similar lines. Roberts took his post with the intent to forge broad majorities for opinions drawn on the narrowest possible grounds. This opinion is strong ammunition for those who doubted his ability to do so.
4.16.2008 2:40pm
JonC:
PLR and Casual Peruser: of the five opinions SCOTUS issued this week, three were unanimous and one was 6-3. Baze was the only case that was substantially splintered. I agree that C.J. Roberts has probably overestimated his ability to generate consensus on the Court, but using this case to bludgeon him on that score is a bit cheap, in my opinion.
4.16.2008 2:51pm
DB Schwimmer:
This is just another example of the gradual deterioration of justice, and its replacement by irrational exercises in semantics. I happen to oppose the death penalty in practice, for reasons that have nothing to do with cruelty or unusual punishment. But I think it is absurd beyond words for anyone to worry for a nanosecond about how much pain an executed murderer might feel during the few minutes needed to end his life.

The notion that the Eighth Amendment was ever intended to prevent even the deliberate infliction of pain - to make an execution more pleasant than childbirth or a root canal - is just ludicrous. Justice Stevens' opinion notes that the quest for ever more "humane" methods of execution has nullified the retributive character of the punishment, and argues that this should render the death penalty invalid altogether. To me, his observation is correct, but just shows that the nonsense has already gone too far. If we're going to keep using the death penalty, then it ought to be a penalty imposed on the perp, not a quick, easy escape from life.
4.16.2008 3:13pm
Gilbert (mail):
It seems like the entire Court, particularly Justice Thomas, ignores the issue of the 8th Amendment's incorporation through the Due Process clause, which lends its own polish to the meaning of the Amendment, and just treats this as a straight out 8th Amendment application. The Chief Justice's opinion seems very well reasoned as a Due Process-8th Amendment case even assuming Justice Thomas is right on the history. Then it's a question of scrutiny.
4.16.2008 3:14pm
andy (mail) (www):
did Justice Stevens really say that the public favors the death penalty due to "habit and inattention"? Stevens' concurrence sets a new record for judicial condescension (although I don't doubt that the author was writing in good faith).
4.16.2008 3:19pm
GWLaw08 (mail):
Thomas and Scalia were both dead on in their analyses. Yet, Scalia's concurrence again demonstrates what I think is one of his major shortcomings. What purpose is served by singling out Stevens for such a rhetorical beat-down? When the next case rolls around and he needs Stevens' vote, is he more or less likely to get it? Pointless.
4.16.2008 3:25pm
MXE (mail):
Haha, Scalia's concurrence is hilarious! "It is Justice Stevens' experience that reigns over all." I love it!

Thomas' concurrence, while less cheeky, was really great.
4.16.2008 3:27pm
KeithK (mail):

did Justice Stevens really say that the public favors the death penalty due to "habit and inattention"? Stevens' concurrence sets a new record for judicial condescension


Maybe he's been attending cocktail parties with a certain presidential candidate...
4.16.2008 3:46pm
c.f.w. (mail):
"He knows that the Court, most of the Legislatures, and most of the People are against him, but he'd still like to overturn the death penalty in his lifetime."

Of the billions in the world, by far most oppose the death penalty. In the US, when given the choice between death and LWOPP, the numbers are close to 50/50. This blithe acceptance of death as "the wanted thing" is the sort of inattention and habit that Justice Stevens rightly rejects.

The best ethical justification for not having torture (or needless torture risk) become an accepted part of killing for the law has as much or more to do with not dehumanizing the person who carries out the execution as caring for the convict.

The USSCT and its admirers remain a parochial bunch who need to get out and see the world. If the justices were a bunch or worldly management consultants (which is what top lawyers are likely to be in 1.5-2 generations), this sort of acceptance of needless risk of torture would be beyond the pale. Scalia should just resign and flog his book full time. What a rude cave-man wanna-be.
4.16.2008 3:59pm
Virginian:

Of the billions in the world, by far most oppose the death penalty.


Completely irrelevant to the interpretation by the U.S. Supreme Court of the U.S. Constitution regarding U.S. law.
4.16.2008 4:07pm
cjwynes (mail):
To the people saying this undermines Roberts' claims to be trying to decide cases narrowly and build larger majorities thereby, how can you possibly reach that conclusion? What hypothetical ideal opinion could possibly have gotten a unanimous decision today? If you read the case, the answer is obvious: none could have.

At most, he could have drug Alito and Kennedy into supporting Breyer's fact-intensive concurrence, which (had it been the majority opinion) would have dropped the 5 or 6 sentences that he put in to reassure abolitionists that he's still open to questioning the penalty itself someday. That would have given us a 4-member plurality. Stevens was not to be deterred from having his Blackmun-moment here and atoning for his 70's sins, he would have written what he did regardless. Scalia would therefore have responded as he did. Thomas would still have concurred with his originalist take. And if Ginsburg and Souter would have joined a Breyer majority opinion, then why didn't they join his concurrence? No, even if Roberts had selected the narrowest basis held by any of the Justices, it still would have come out about this way in terms of numbers.

Really, if you look at alot of these cases where the "conservative" wing split 3-2, if you find the side of that which argues for the narrowest grounds you will find Roberts there. Short of stealing all the pens in Justice Scalia's office, I'm not sure what you want the guy to do.
4.16.2008 4:15pm
Jeff R.:

Of the billions in the world, by far most oppose the death penalty.


Is that even true? In most of Europe, (Germany aside) the numbers bounce around either side of the 50/50 mark; the DP's abolition there was a case of a democratic deficit rather than any kind of popular demand.

China has the DP and a fairly popular (if, you know, evil) government, as well as a huge chunk of those billions; probably enough to outweigh the Indian contribution to the other side of our hypothetical global plebiscite. And the Islamic world is going to be full of pro-DP people. I don't even see a narrow majority, let alone a vast one.
4.16.2008 4:54pm
ejo:
is that true on the billions-I have read polls that, even in Europe, the public often wants it while the political class does not. further, cfw, why does it matter? if I were to spout that the majority of the world doesn't acknowledge freedom of speech or freedom of religion, would that be sufficient for you to cast those rights, enshrined in our Constitution?
4.16.2008 4:56pm
Zarathustra (mail):
Could someone explain to me why Roberts's opinion announces the holding of the Court? The Marks rule requires that when no single rationale enjoys a majority, the holding of the CT will be viewed as the position taken by the Justice who concurred in the judgment on the "narrowest grounds." Is the
4.16.2008 4:58pm
PLR:
To the people saying this undermines Roberts' claims to be trying to decide cases narrowly and build larger majorities thereby, how can you possibly reach that conclusion? What hypothetical ideal opinion could possibly have gotten a unanimous decision today? If you read the case, the answer is obvious: none could have.

That's a bit circular, don't you think? "Having read all seven opinions, I have concluded that this 7-2 decision could not have been decided on the basis of two opinions."

Consensus will always involve yielding one's intellectually perfect ideal for something that is close enough, reaches the same result and will produce useful information for future cases. For better or worse, Roberts will get the blame (or credit, depending on one's financial interest in appellate litigation) when the eight other egotists have convinced themselves there's only one Right Answer. He may not be solely to blame, but he's the head fish in this school.
4.16.2008 5:44pm
D.A.:
Virginian, Jeff, and ejo,
Please ignore the strawman and move to the next sentence of cfw's post, if you will.
4.16.2008 5:58pm
Bill Dyer (mail) (www):
I'm still working through the opinions, but is this choice of quotation (and its unacknowledged black comedic pun) an example of Chief Justice Robert's dry wit?

By 1915, 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185 (1915).


Well-grounded. Well, yes.
4.16.2008 6:07pm
Dave N (mail):
Could someone explain to me why Roberts's opinion announces the holding of the Court?
I would argue that the Chief Justice's opinion is the holding of the Court because 2 justices (Thomas and Scalia) would hold that the issue is outside the scope of Eighth Amendment jurisprudence because the method, lethal injection, does not involve torture.

When you square their view with those of the other justices, then it clearly, and obviously, does not support either Justice Stevens' opinion or Justice Ginsberg's. Justice Breyer's opinion endorses Justice Ginsberg's approach, though not her conclusion.

Of course, Justice Thomas criticizes the plurality (and has the better argument IMHO), but in the end, the plurality decision is the narrowest holding--and I suspect that were Justices Thomas and Scalia "forced" to join another decision, they would state that they approach the Roberts approach over the others presented.
4.16.2008 6:11pm
Bill Dyer (mail) (www):
TruePath (12:46pm) wrote:
... It would be quite cheap and simple just to execute criminals with an overdose of opiates and there would be no danger of pain.

It drives me nuts that bureaucratic rules are stopping such an obviously preferable solution ....


So, to maintain your sanity, have you written your state legislators? Or, perhaps, legislators in the 35 states that permit the death penalty to be carried out through means of this three-drug cocktail? Or your U.S. Representative or Senators?

Or are you just waiting for a liberal activist court to re-read the Constitution to match your preference?
4.16.2008 6:15pm
Bill Dyer (mail) (www):
Oops -- 35 states, plus Kentucky, makes 36. Sorry.
4.16.2008 6:17pm
ejo:
If lwop were so acceptable, one would see our legislators heading in that direction. that would be entirely proper in a democratic society. I wouldn't be so naive as to believe that once death is taken off the table, the abolitionists wouldn't move to undermine lwop. why take death off the table when you know the next step is abolish lwop? you say the court is parochial-take a look at the world and tell me again how mild life is out there.
4.16.2008 6:20pm
Dave N (mail):
China has the DP and a fairly popular (if, you know, evil) government, as well as a huge chunk of those billions; probably enough to outweigh the Indian contribution to the other side of our hypothetical global plebiscite.
And I would note, India is both a) a democracy and b) a country with a death penalty.
4.16.2008 6:22pm
Bill Dyer (mail) (www):
Much opposition to the death penalty in other countries is based on its random, irrational, or arbitrary use -- oftentimes for overtly political purposes and crimes -- without a fraction of the procedural safeguards to protect substantive rights that are universal throughout the United States. And most of those same countries, including some very "civilized" ones in Europe, routinely lock away prisoners for life based on prosecutions that would never withstand scrutiny under American standards. So when you say, "Most of the world opposes the death penalty," you're comparing apples and oranges, or at least apples and pineapples.
4.16.2008 6:28pm
c.f.w. (mail):
"Completely irrelevant to the interpretation by the U.S. Supreme Court of the U.S. Constitution regarding U.S. law."

"is that true on the billions-I have read polls that, even in Europe, the public often wants it while the political class does not. further, cfw, why does it matter? if I were to spout that the majority of the world doesn't acknowledge freedom of speech or freedom of religion, would that be sufficient for you to cast those rights, enshrined in our Constitution?"


A nationalistic approach to death penalty / torture / punishment law makes as much sense now as Mercantilism. Nationalism in US law is more and more unconnected with what is happening in consulting, investment banking, lending, accounting, economics, public policy, business, science, medicine.

Law schools like UChic will soon be focusing more and more on law students and law profs who can act and write intelligently on an international/global platform. Top law firms, soon to be publicly owned (or available for sale on public markets), are going to need to go global to compete.

The USSCT needs to develop doctrines that allow more meaningful consideration of things going on beyond US borders, as was done by Madison et al. in coming up with the Constitution in the first place.

It is irrelevant by (parochial) definition what the world thinks about US use of the death penalty - but not irrelevant in fact.

The legal definition of what is relevant in a death/cruelty/torture case needs to be rethought, or the persuasive force of the US in the world legal arena (such as it is) is likely to decline. When it was hard to find US law except in law libraries via lawyers, it was more ok to largely ignore law from the rest of the world. That excuse for ignoring non-US law is gone, thanks to the internet. The USSCT can and should avoid thinking of US law in a parochial manner, as if US law were an island with no meaningful connections with other legal systems.

That does not mean that we reject freedom of speech or freedom of religion if other nations reject those concepts. But when dealing with vague concepts like "cruel and unusual" or "due process" it is not unfaithful to Madison or Jefferson to see and discuss what is done in the UK, EU, Japan, India, China, etc. No economist or i-banker or mgmnt consultant would erect an intellectual/empirical/factual wall on a national border and no lawyer or judge should either. The idea that Madison or Jefferson or the like must have wanted a national-border legal/empirical wall in death/torture/cruelty/due process cases is unsupported by the historical record.
4.16.2008 6:28pm
Dave N (mail):
I find c.f.w.'s position appalling. Yes, commerce should and does have an international component. But criminal law is inherently different--since it is regulating the conduct of individuals in a specific location--and not transnationally. So to that end, what the rest of the world thinks of U.S. criminal law is ultimately irrelevant--and frankly, I don't give a damn what European elitists (what is usually meant by "international opinion") think when it comes to American criminal law.
4.16.2008 6:36pm
cjwynes (mail):
ejo, I don't think all death penalty opponents would move on to opposing sentences of life w/o parole. I personally oppose the DP, but want to get rid of it the honest way, by persuading my fellow citizens to make that choice democratically. And I have no objection to life w/o parole. Many of the people I met at death penalty protests also had no problem with lwop.

Unfortunately, many of the DP opponents I met were also your typical college "progressives" who attribute all crime to racism or poverty or some such thing, and those folks would readily move the bar and argue that lwop should be abolished. I suspect the criminal defense bar would move that way too.

Hell, even some prosecutors would find their world a nightmare in that scenario. W/o the death penalty around any more, nobody would *ever* plead to lwop. But the public would be constantly demanding it, since the future elimination of the death penalty will be presented as more palatable largely because of lwop's availability. So we'd have to try just about ALL of our murder 1st cases.
4.16.2008 6:39pm
justwonderingby:
"It would be quite cheap and simple just to execute criminals with an overdose of opiates and there would be no danger of pain"

1. This is not true. Opiods do not guarantee a painless death. For one, death is by asphyxiation on one's own vomit.

2. Is there ANY evidence that any DP defendant has been given the 3 drug cocktail in error? It's the first drug that makes them unconscious - which if not administered - would cause a painful death. But it's pretty easy to tell whether someone is unconsciousness of lucid. Now, in terms of semi-conscious... well with the dose being 5 GRAMS (normal surgical dose ~350 mgs)... semi-consciousness doesn't happen (despite all that debunked "science" claiming otherwise).

Let's also just remember that lethal injection was instituted as a more humane approach. Now it's no good, too?
4.16.2008 6:52pm
justwonderingby:
Correction:

1. death is by cocking on one's own vomit OR respiratory failure via fluid in the lungs.
4.16.2008 6:53pm
justwonderingby:
Sorry, that should be "choking" (wish we could fix comments here at VC)
4.16.2008 6:55pm
PLR:
So to that end, what the rest of the world thinks of U.S. criminal law is ultimately irrelevant--and frankly, I don't give a damn what European elitists (what is usually meant by "international opinion") think when it comes to American criminal law.

I agree, absent evidence that a substantial group of Americans holds the identical view.
4.16.2008 7:02pm
KeithK (mail):

Is there ANY evidence that any DP defendant has been given the 3 drug cocktail in error? It's the first drug that makes them unconscious - which if not administered - would cause a painful death. But it's pretty easy to tell whether someone is unconsciousness of lucid. Now, in terms of semi-conscious... well with the dose being 5 GRAMS (normal surgical dose ~350 mgs)... semi-consciousness doesn't happen (despite all that debunked "science" claiming otherwise).


Some opponents make the argument that we can't know whether the condemned feels pain. For them the possibility that they might be is sufficient to oppose the protocol. I have no doubt that there have been cases where those administering have had trouble - missing veins if nothing else. But that's different from evidence. I don't believe there was any evidence presented in this particular case.

Ginsburg argues that the case should be remanded to determine whether there are sufficient safeguards to ensure that the condemned is indeed unconcious.


Let's also just remember that lethal injection was instituted as a more humane approach. Now it's no good, too?


That's one of Thomas' arguments.
4.16.2008 7:20pm
Bill Dyer (mail) (www):
Here's a link, in lieu of a trackback, to my own more extended take on this case on my own blog.
4.16.2008 7:38pm
TomB (mail):
To cfw: when I originally said the People I meant the people of the U.S. subject to the U.S. Constitution. Sorry for the confusion.

But you bring up the rest of the civilized world. I see several commenters have said that other political opinions are not important to us, but I don't entirely agree.

But it is clear from many surveys that the people of many other countries have significantly divergent opinions about capital punishment that would appear from their governments' positions. So I will contend that a majority of the people in the world favor the death penalty, or at least significant numbers notwithstanding the count of governments opposed.

But that should not overrule the U.S. Constitution.

Then you said: "The legal definition of what is relevant in a death/cruelty/torture case needs to be rethought, or the persuasive force of the US in the world legal arena (such as it is) is likely to decline."

To conflate administration of the death penalty with torture weakens your argument. It's a cheap shot that has no basis in fact. Even Justices Scalia and Thomas strongly support the Eight Amendment's prohibition of any means that deliberately inflict pain, much less anything like torture. Only a few crackpots support torturing criminals (who might even deserve it), but you place yourself among the crackpots when you blithely equate DP and torture.

We're talking about putting to death criminals who have been proven guilty and given upteen chances to overturn their conviction for factual, legal, procedural, or even silly reasons. Only after all this litigation is complete will we kill a murderer, and then only certain murderers who overcome the many hurdles in the adjucation and sentencing process. This is allowed by the U.S. Constitution, and supported by the democratic process. If I support (as I do, fully) the right of New Jersey's citizens to abolish the death penalty, you must support Texas's right to carry it out.

Let's propose a constitutional amendment outlawing the death penalty, and see where that goes. Let the will of the People prevail.
4.16.2008 8:00pm
c.f.w. (mail):
"Much opposition to the death penalty in other countries is based on its random, irrational, or arbitrary use -- oftentimes for overtly political purposes and crimes -- without a fraction of the procedural safeguards to protect substantive rights that are universal throughout the United States."

Death penalty litigation is random, irrational and arbitrary in the US and places outside the US where we exercise influence (Afghanistan, Iraq, G'tmo). It is done for political purposes. The procedural safeguards are a chimera - look at the reversal rates in places like TX and CA - virtually zero. The "lightning striking" analogy still holds.

It is time for Scalia to resign for one simple, ethical reason, in my view. He says in the latest torture/death case (that is the unique context of this case, where one is arguably tortured to death by the drug cocktail) that he does not have an opinion about whether or not the death penalty is appropriate, but he will kill anyway. That is depravity by definition, under any reasonable ethical standard or under definitions of psychological pathology. Scalia, if we take him at his word, is a cold blooded killer. He is like Pilate washing his hands of the matter. At least he should be able to say, I personally think this is the right thing to do - to kill this fellow human being. If he cannot say that, is it not ethically time to resign?

"We're talking about putting to death criminals who have been proven guilty and given upteen chances to overturn their conviction for factual, legal, procedural, or even silly reasons. Only after all this litigation is complete will we kill a murderer, and then only certain murderers who overcome the many hurdles in the adjucation and sentencing process. This is allowed by the U.S. Constitution, and supported by the democratic process. If I support (as I do, fully) the right of New Jersey's citizens to abolish the death penalty, you must support Texas's right to carry it out."

The "umpteen" chances to change the result are a myth. The chances of success in a murder case (or perhaps a child rape case) are quite limited, even with a strong defense case. TX is pathetic in what it pays its lawyers in DP cases, in habeas at least. Trial lawyers in CA in DP cases are routinely over-matched and under-resourced. The tribunals are routinely skewed away from a non-death result (military commissions, voir dire to weed out those who will not likely vote for death). It is the judges who manage the charade that is DP litigation, and they should be charged with reforming (while referendums are also important). Keep in mind, the bill of rights is not there to protect the enfranchised with political power, but rather the discrete and insular minorities.

"But you bring up the rest of the civilized world. I see several commenters have said that other political opinions are not important to us, but I don't entirely agree."

Glad to hear you are open on this point.

"But it is clear from many surveys that the people of many other countries have significantly divergent opinions about capital punishment that would appear from their governments' positions. So I will contend that a majority of the people in the world favor the death penalty, or at least significant numbers notwithstanding the count of governments opposed."

Fine, this should be debated. Globally and historically. But if we do that, then Scalia needs to get off his high horse about how no possibility of error exists. If there have been huge numbers of errors in places like Russia, China, Iran, Iraq, KSA, recently and historically, how are we so sure there can be no errors in the US? At a minimum, when deciding what is due process and cruel and unusual, why not allow the empirical evidence to emerge, even if it comes from outside the US? In this day and age, when LWOPP is affordable, why not err in favor of life? I suspect a worldwide referendum, comparing LWOPP to death, would be comfortably supportive of LWOPP.

"But that should not overrule the U.S. Constitution."

It is not overruling Madison or Jefferson, et al., to give meaning, as of now, to concepts like due process and cruel and unusual. The chemicals Roberts blessed were not even available in 1787, I suspect. LWOPP was not practical or routinely available in 1787. Times change, and Scalia's resistance to change, by pretending we are still in a 1787 legal/empirical environment, is about as defensible as creationism.
4.16.2008 9:25pm
Roscoe B. Means:
Could someone explain to me why Roberts's opinion announces the holding of the Court? The Marks rule requires that when no single rationale enjoys a majority, the holding of the CT will be viewed as the position taken by the Justice who concurred in the judgment on the "narrowest grounds."

Zarathustra, I'll take a stab. One problem with that conventional short statement of Marks is that it omits the requirement that the identified concurrence must be one that controls the judgment, not just concurs. For example, Justice Breyer could have written that he concurred because he thinks the Eighth Amendment does not apply to a defendant who has killed more than once. That would be the "narrowest grounds" for concurring, but there would still be a five-member majority who didn't care about the number of victims. His opinion didn't control the outcome. In these cases I think it's easier to look for the opinion under which the judgment would have changed with the least change in the facts, which I think is what "narrowest grounds" is meant to convey. I think Prof. Kerr has correctly identified the plurality opinion as that opinion here. And I'm pretty certain he could do a better job than I at explaining the test.
4.16.2008 9:31pm
Bill Dyer (mail) (www):
c.f.w. -- if you think the reversal rate for death penalty cases is "virtually zero" in Texas, you're badly mistaken. Care to provide a source for that (over)statement?

It is true, however, that in large Texas counties whose prosecutors and judges have acquired significant capital case experience (e.g., Harris, Dallas &Bexar Counties), they tend, on average, to commit fewer reversible errors than in places where the death penalty is taken less seriously. That's a good thing.
4.16.2008 9:43pm
whit:
"It is done for political purposes. The procedural safeguards are a chimera - look at the reversal rates in places like TX and CA - virtually zero."

you do realize your statement is like a lesson in logical fallacies. the safeguards may very well be poor (or not), but the fact that the REVERSAL RATES are near zero doesn't prove or even suggest that.
4.16.2008 9:48pm
KeithK (mail):

It is time for Scalia to resign for one simple, ethical reason, in my view. He says in the latest torture/death case (that is the unique context of this case, where one is arguably tortured to death by the drug cocktail) that he does not have an opinion about whether or not the death penalty is appropriate, but he will kill anyway. That is depravity by definition, under any reasonable ethical standard or under definitions of psychological pathology.

No, it's not depravity. The question of whether the death penalty is constitutional or appropriate is not before the court. The courts are supposed to rule only on the questions laid before them, not to make broad rulings about any issue that is related to the case in question.


At least he should be able to say, I personally think this is the right thing to do - to kill this fellow human being. If he cannot say that, is it not ethically time to resign?


But it's not Scalia's job to decide whether executing this individual is the right thing to do. That decision was rightfully the responsibility of the State of Kentucky (through the prosecution) and the people of Kentucky (through the jurors). Scalia's job as an appellate judge is only to decide whether the decision was correct as a matter of law under the Constitution.
4.16.2008 10:03pm
TomB (mail):
c.f.w.: you say. The "umpteen" chances to change the result are a myth. The chances of success in a murder case (or perhaps a child rape case) are quite limited, even with a strong defense case.

What does "success" mean, that a murderer is found not guilty? Oops, your words are showing your bias....

Convicted murderers are seldom sentenced to die. Death row inmates are seldom put to death, usually because of procedural or technical issues. So the lack of "success" is actually on the part of the State to carry out the legal sentence against a guilty defendant.

These defendants do have "umpteen" chances. In almost every case, certainly all the cases that make it to SCOTUS, these defendants and their lawyers use these chances to argue about procedure, and never to argue about guilt. Never! We are always spltting hairs about everything except the guilt of the murderer and the impact on his victims' families.

Also: Keep in mind, the bill of rights is not there to protect the enfranchised with political power, but rather the discrete and insular minorities.

The Constitution is there to protect the life and liberty of all the people. To protect the people from murderers. It's ironic that the real victims -- of the out-of-balance condition in adjudicating guilty murderers -- are the minorities you allege we should be protecting. By over-protecting the guilty, we are causing vastly and tragically more deaths among the innocent.

Let's look at the statistics over the past 20-some years:

Guilty murderers not punished = thousands
Guilty murderers who have their death sentence unfulfilled = thousands
Innocent defendants put to death = zero
Defendants found guilty and released on later evidence = well under 1% (probably count them on 2 hands and 2 feet), each one a tragedy of our flawed system.
4.16.2008 10:13pm
c.f.w. (mail):
NYT 2000, re TX:

"The state appeals court has reversed only 8 death penalty verdicts in the last five years, while affirming the convictions and death sentences in 256 cases, according to court statistics. This is the lowest reversal rate in capital cases in the country."


"But it's not Scalia's job to decide whether executing this individual is the right thing to do."

Look at the last paragraph of his concurrence, where he responds to Stevens. Scalia volunteered that he has no opinion on the appropriateness of the DP. If true, that is astounding - Pilate like. He did not say "not my job" - he said I am not moved one way or the other (meaning I feel no need to kill this person, but let's do it anyway). Sort of like grilling ants with a magnifying glass. Time to retire, if that is his current true feeling. When Scalia sees St. Peter at the Pearly Gates he is going to account for the blood on his hands by saying I saw no need for the DP, felt no passion about the matter, so I let it go on because tehy paid me? Seems cave-manish.

"you do realize your statement is like a lesson in logical fallacies. the safeguards may very well be poor (or not), but the fact that the REVERSAL RATES are near zero doesn't prove or even suggest that."

Good thing we need not look at logic alone. The empirical evidence is that the systems are junk, in my view. Reversal rates in CA that went from say 98% to around 5% (after change in court personnel) shows that errors went away? Hardly, the real explanation is a heavier reliance on waiver and harmless error "work around" of glaring errors.

"It is true, however, that in large Texas counties whose prosecutors and judges have acquired significant capital case experience (e.g., Harris, Dallas &Bexar Counties), they tend, on average, to commit fewer reversible errors than in places where the death penalty is taken less seriously. That's a good thing."

That concept of reversible error assumes you have judges who are doing even-handed, non-political review, with well-financed defense counsel and procedures that allow a fair trial. Care to show us any evidence about hours and rates of pay for the defense counsel in the TX habeas and trial cases? Do they get to bill when asleep also? Death Penalty In Texas Case Is Overturned, Citing Lawyer, By RICHARD A. OPPEL JR., Published: August 31, 2000. TX is not fooling anyone.


"What does "success" mean, that a murderer is found not guilty? Oops, your words are showing your bias...."

Not guilty is ok if not guilty. One can also be found guilty but given LWOPP - that can be success also, in some cases. The point is, one needs the really good lawyers for the DP cases, and one needs to pay them well. That is not what TX does, and you know it, I suspect.

"By over-protecting the guilty, we are causing vastly and tragically more deaths among the innocent."

How is LWOPP over-protecting? Bringing murder victims back to life is not what DP litigation is about. That is not going to happen, ever. LWOPP is massive punishment, massive deterrence (imposed promptly), and reversible. It is the decent thing and the ethical thing. We can do it, and should. Why not, in this day and age, in the US?
4.16.2008 10:53pm
Bill Dyer (mail) (www):
cfw: LINKS please. That way I determine whether, for example, the NYT was ignoring the death penalty decisions of the fourteen intermediate Texas Courts of Appeals (who also review death penalty cases). I would bet you $1000 the statement you've quoted refers only to the Texas Court of Criminal Appeals (the highest appellate court for criminal cases in the Texas system), and that it's not counting unpublished opinions. Or that the NYT -- and you -- are just wrong about your basic facts.
4.16.2008 11:05pm
Oren:
TomB, those numbers are fantastic, and I don't mean in a good way.
4.16.2008 11:14pm
Uhh:

That concept of reversible error assumes you have judges who are doing even-handed, non-political review, with well-financed defense counsel and procedures that allow a fair trial.


I've never seen reversible error count how much money defense counsel was paid. Only the capabilities (and occasionally zeal) of counsel. But I've certainly seen a low-paid counsel put up a significantly better case than a well-paid one, who was just phoning it in.

I want to give you credit here, because I respect that you've put a good deal of thought into this. But you keep saying things that just aren't true, or are things you want them to be. And that's not fair to the other people you're discussing with.

Please, please, go back and study up and get your facts and cites squared away and come back. You seem like you really could build a cogent argument here if you did the research.

And, for the record, drop the Scalia stuff. He's doing exactly the right thing that he should be in this case. It's not his concern whether or not someone is put to death in this case. Trying to make silly hits against him isn't going to gain you anything, and frankly is another thing distracting from your argument.
4.17.2008 12:03am
Dave N (mail):
I know nothing of C.F.W. other than his posts today (he/she does not post often; I will assume "he" because "he/she" looks moronic) That said, C.F.W. is both blindingly arrogant in his worldview andd breathtakingly ignorant in his knowledge of capital punishment.

I have commented previously on his concept that U.S. criminal law should somehow bow down to EU bureaucrats because "world opinion" knows better than we rubeish Americans.

But comparing torture to capital punishment; to discuss military commissions in discussing capital punishment(which have not been used to condemn anyone since World War II); to suggest ANYONE that Guantanimo has been executed, are all so incredibly moronic that they do not merit further comment.

But if you add B.T.W.'s condescending tone and match it with his ignorance, then I must sadly conclude that a Kos-kid escaped from that fantasyland website where everything America does is wrong and found his way here.

I do not mind intelligent discussion (I have had many with intelligent people of the left on this site) but I will not deal further with someone who is not only wrong but who talks down to others in the process.
4.17.2008 12:17am
David M. Nieporent (www):
When Scalia sees St. Peter at the Pearly Gates he is going to account for the blood on his hands by saying I saw no need for the DP, felt no passion about the matter, so I let it go on because tehy paid me? Seems cave-manish.
I suspect you're trolling because you don't like the DP, but on the off chance you're serious, I'll explain it to you: he let it go on because he had no right to stop it. He has no legal authority to implement his personal policy views.
4.17.2008 12:32am
Bill Dyer (mail) (www):
cfw: Your assertion about Texas is wrong. I've just skimmed, on Westlaw, something over 135 death penalty cases from the last four years. Even ignoring habeas cases, remands for evidentiary hearings, and everything else except direct appeals -- and of course, ignoring the second layer of protection in the federal district and appellate courts -- I easily found over a dozen Texas cases in which death sentences had been reversed. Sure, far more are affirmed than are reversed; but that, again, is equally consistent with the proposition that prosecutors and trial courts are performing well. And of course, it's consistent with non-capital cases as well, in which a large majority of criminal convictions are affirmed on appeal.

There are articulate and principled opponents of the death penalty. People like you who peddle misinformation do them, and their cause, a great disservice.
4.17.2008 12:58am
advisory opinion:
Alito's concurrence was a joy to read for its utmost restraint. Scalia's had a 'couldn't-resist-the-slap-down' quality about it.
4.17.2008 8:11am
c.f.w. (mail):
"I suspect you're trolling because you don't like the DP, but on the off chance you're serious, I'll explain it to you: he let it go on because he had no right to stop it. He has no legal authority to implement his personal policy views."

Sure he does. If he is asked to do something immoral, against his religion, he can recuse himself or resign. He volunteered his indifference, indifference which is hard to believe, so why is he not opening up the ethical issue. Same could be said for Stevens. For de facto recusals, see Brennan and Marshall opinions in DP cases. Death is not commerce, money, or years of life. It is different, and raises ethical questions that Scalia punts. Like a cave man.

"cfw: Your assertion about Texas is wrong. I've just skimmed, on Westlaw, something over 135 death penalty cases from the last four years. Even ignoring habeas cases, remands for evidentiary hearings, and everything else except direct appeals -- and of course, ignoring the second layer of protection in the federal district and appellate courts -- I easily found over a dozen Texas cases in which death sentences had been reversed. Sure, far more are affirmed than are reversed; but that, again, is equally consistent with the proposition that prosecutors and trial courts are performing well. And of course, it's consistent with non-capital cases as well, in which a large majority of criminal convictions are affirmed on appeal."

You are up to a 8.8% reversal rate. That compares to what in non-capital cases or civil cases? I suspect 8 had to do with rejection of TX recalcitrance by the USSCT (Penry I-III). The DP is a political issue in TX.

Any news on billing for sleeping lawyers or what one can get paid to handle a DP trial or habeas case in TX?

Any chance AG can get his old job back rubber stamping rejections of TX clemency petitions?

The point is there are virtually always mental health issues in DP cases, and ineffective assistance of counsel issues. The TX position is not far from my position - LWOPP is huge punishment, and civil, and a deterrent, and reversible. It is death by imprisonment. So it should not be hard to get a cave man like Scalia to go for an abolish the DP ruling, especially if he listens to his Pope and gets his head out of 1787. Once one tours the big prisons like SanQ, one can see that LWOPP is the proper result in virtually all DP cases. A self defense rationale might justify death in cases on the battlefield, but that is not where the DP is getting used in places like TX. DP work is for folks like Spitzer, looking to build careers. That political ambition we can and should re-channel into LWOPP work. And referenda are not a panacea, since the Bill of Rights is not for the majority, it is for the discrete and insular minorities.

I am as bitter and hateful about murder and child rape and terrorism as anyone. But, I am an LWOPP proponent because to err is human, to be political is human, and we are not going to bring anyone back to life by killing through Scalia (as opposed to using LWOPP). He does not even want to do it, or feel it must be done, so let's give Nino a break. Any other approach is ethically questionable for Nino and those who seek to kill through him.
4.17.2008 2:02pm
KeithK (mail):

For de facto recusals, see Brennan and Marshall opinions in DP cases.


Many of us consider Brennan's actions to be a dereliction of duty. If he wasn't able to follow the law and uphold death sentences that were ifarly issued and constitutional then he should have resigned.
4.17.2008 3:01pm
Gonzo:
Scalia will get to heaven via ez-pass. Can there be anything more pleasing Catholic god then blood thristy hipocryte?

BTW, how oan Opus Dei fanatic manages to appear to be honest, yet fail to recuse from atheist's Newdow case.

link
4.17.2008 8:49pm