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Stevens and the Machinery of Death

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Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:

Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.

The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)

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  • And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators…
    But the Court routinely addresses this kind of “policy judgment” regardless of any “reasonable” disagreements that may exist. Stevens quotes Furman v. Georgia (1972): “[A] penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose.” He offers a detailed analysis of the “legislative purposes” of capital punishment and finds none that are valid.
    The states and Congress are unwilling to repeal capital punishment laws due to the most crass political calculations and contrary to convincing evidence against them. That’s precisely when the courts need to intervene. It seems odd to place the burden of proof on the opponents of state-sanctioned murder.
    There were major disagreements on “policy judgments” back in 1954 when the Supremes decided Brown v. Board of Education. And there certainly was no “national consensus” against racial discrimination. If Scalia’s position had prevailed back then, we’d still live in a legally segregated society.

  • drip

    We must never lose sight of the fact that Stevens was a conservative judge appointed to the Court by Gerald Ford. He is not a liberal; he just appears to be one in light of his cohort. He also appears to be old (if vigorous) in that same context.
    I know that we should be focused on why Obama hates America and whether Clinton is a bitch or a man, but if the Supreme Court is an actual issue in the campaign, who will the dems replace Stevens with? We know that McCain will appoint more Scalia/Roberts/Alito/Thomas. Will the democrats appoint more Breyers or reach out and find someone as far to the left as the Quintuplets are to the right?

  • NonyNony

    Will the democrats appoint more Breyers or reach out and find someone as far to the left as the Quintuplets are to the right?
    More Breyers and Ginsbergs. Perhaps a Souter.
    A Dem president in the current Dem Party will never “reach out and find someone as far to the left” as the conservatives on the court are to the right. Not. Going. To. Happen. Because the conservative coalition controls the Senate: moderately conservative Dems + moderately conservative Republicans + crazy conservative Republicans == supermajority for conservatives. This will be true even if the Dems were to get to that “magical” 60+ number in the Senate because to get there they need moderately conservative Dems to stay in their coalition.
    It would take a realignment of the political parties leftward in the same manner that Nixon/Reagan realigned the political parties rightward to get nominations of justices who are as liberal as, say, Alito or Thomas are conservative. Barring that realignment, we’re going to see moderate liberals nominated by Dem presidents and far-right conservatives nominated by GOP presidents for the foreseeable future.

  • cfw

    Referenda on DP vs. LWOPP are good but not enough. Why? The Bill of Rights is not there to protect the powerful and politically influential. It is there to protect those who are in the discrete and insular minorities. The courts can properly take the lead in rejecting or curtailing the DP because the courts construct, supervise, monitor and maintain the imperfect adversary/political system that leads to executions. As a practical matter, the USSCT justices have blood on their hands in every (or virtually every) contested DP case that gets to execution. That the 5th amendment refers to life does not imply it is consistent with due process to execute based on politically slanted and defective adversary proceedings. It is also ok for justices to consider things that were not around in 1787, such as LWOPP as a viable option, and chemicals that kill without significant risk of torture.

  • I think you’re wrong about the importance of the 5th and 14th amendment to the debate. They probably show that the framers of those amendments thought the death penalty was not cruel and unusual. They don’t show that it is not cruel and unusual. They also don’t say the death penalty is constitutional even if it is cruel and unusual.
    There is nothing inconsistent about believing both (a) the death penalty is unconstitutioanl and (b) if it is available, it cannot be imposed as the result of double jeopardy. You probably wouldn’t include rule “b” unless you were at least uncertain about rule “a”, but they definitely don’t contradict each other.

  • I haven’t actually read Scalia’s opinion, but even on Scalia’s own theory of originalism, what matters is what contemporaries understood the framers to say in the Eighth Amendment, not how they or the framers would expect that principle to apply.

  • Barry

    “If Scalia’s position had prevailed back then, we’d still live in a legally segregated society.”
    Geaghan
    Which, in Scalia’s mind, is a feature, not a bug (IMHO)

  • dan

    I haven’t read Stevens’ opinion yet, but Blackmun’s argument against the death penalty was a due process argument, not a cruel & unusual argument.

  • rea

    You know, the common law penalty for treason was hanging, drawing and quartering (the movie Braveheart shows it very graphically). Within the lifetime of many of the Founders, it was used (after ’48), but never used again.
    Anyone doubt that hanging, drawing and quartering constitutes “cruel and unusual” punishment?
    So in other words, the “evolving standards of decency” view of the 8th Amendment was probably consistent with “what contemporaries understood the framers to say in the Eighth Amendment”. I assure you, everyone participating the the American Revolution had good reason to consider whether hanging, drawing and quartering remained a legitimate penalty.

  • rea

    Oops, a dread smiley face ambiguity!
    The reference was meant to be to the Jacobite Rebellion of 1748, not to 48)

  • drip

    If NonyNony is correct, and I would put my money on that part of the wheel of political fortune, I see no reason to pay attention to arguments concerning the Supreme Court in this election. That the death penalty case law took this turn shows that the quints are dragging others into their web and it is sad to see.

  • mpowell

    I don’t see anything wrong with Steven’s argument from a constitutional perspective. The 8th amendment clearly establishes some kind of test for punishment. I think that it is very likely that at the time they considered the death penalty to pass that test. Stevens bases his argument on modern data about the fairness of the death penalty. Overturned convictions on death row are even pretty objective. If the constitution establishes a test, it is perfectly reasonable to argue that the parameters of the test are more important than the founder’s ideas about what punishments would pass the test 200 years ago.

  • omar shanks

    I’m with mpowell. Scalia’s position is more persuasive than Stevens’ only if you already accept Scalia’s originalism. But then you have to stick your fingers in your ears and go “nyah, nyah, nyah, ho-hom” whenever anyone questions why the framers would deliberately insert textually “open” provisions into the constitution. For Stevens, its an invitation from the framers to interpret the text. For Scalia, its the commandment to let the framers (seen in a quasi-religious role as genii) keep dead-hand control of the body politic.

  • Anderson

    I’m open to arguments about the death penalty as applied
    That in fact is what Stevens’s argument amounts to. N.b. his observation that no capital prosecutor wants to go to bat with 12 randomly selected jurors.
    To continue reprising my comments at the Volokh blog, I think Scalia’s fit of spite against Stevens is way out of proportion to Stevens’s actual vote in the case. I am wondering whether Stevens at first meant to dissent, then thought better of it.
    As it stands, Stevens’s deference to precedent does not at all smack of “judicial fiat,” tho the wingnuts at the VC are lapping it up.

  • Geaghan

    Scalia’s position is more persuasive than Stevens’ only if you already accept Scalia’s originalism.
    Scalia’s “originalism” has proven to be a highly flexible doctrine when it might otherwise produce a politically-undesirable result, as in D.C. v. Heller (the D.C. handgun ban) and Bush v. Gore (equal protection).

  • Someone ought to tell these fuckwits that the eighteenth century was mostly horrible.

  • Vincent

    Here’s the kicker. Even Scalia would agree that some of the things they did for punishment back then would be cruel and unusual today. Originalism is not for the faint of heart.
    From Scalia’s own law review article “Originalism: The Lesser Evil” 57 U. Cin. L. Rev. 849 (1989):
    “What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge-even among the many who consider themselves originalists- would sustain them against an eighth amendment challenge.”
    There are things we don’t do any more as punishment. Why is execution any different?

  • Vincent,
    Its not. So we have to ask ourselves what is at stake in the whole “originalist” shtick. It is far, far, more true that the framers were aware that circumstances and interpretations would change how society needed to read the constitution and the bill of rights than that they were,themselves, under any illusion that a “strict construction” of their “original intent” would be the best way to move forward. Unlike their conservative “defenders” (whether pro or anti federalist) our forefathers were damned smart and every one of them, of course, a revolutionary and not a conservative. (OK, throw john adams in my face, but still, his monarchical tendencies were way overblown.)
    aimai

  • Scalia’s “originalism” has proven to be a highly flexible doctrine when it might otherwise produce a politically-undesirable result, as in D.C. v. Heller (the D.C. handgun ban)
    WTF? Now Scalia is getting blamed for opinions that haven’t even been issued yet?

  • Now Scalia is getting blamed for opinions that haven’t even been issued yet?
    If you listened to the oral arguments in the Heller case, his position was made abundantly clear (as was Roberts’, for that matter). Maybe he’ll be persuaded otherwise in conference, but I’d be surprised if that’s ever happened in his 22-year career with the Supremes.

  • If you want to make an argument about Scalia’s political preferences trmuping his originalism, you don’t have to look to the future–just cite Adarand v. Pena. I wish he would get around to actually making an argument for the proposition that the 5th Amendment was understood in 1791 as forbidding all racial preferences…

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