Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
Keep CounterPunch ad free. Support our annual fund drive today!

Death Penalty, Juries and Scalia

by Alexander Cockburn And Jeffrey St. Clair

Amid all the assaults on the Bill of Rights, the trashing of the Bill of Rights in the Patriot Act, the denial of habeas corpus to citizens; amid all this, in the span of one week, the US Supreme Court has issued rulings almost beyond the dreams of the most ardent civil libertarians.

Listen to the exultant cry of Stephen Hawkins, executive director of the National Coalition to Abolish the Death Penalty: “This year has been the most favorable Supreme court term for death penalty foes in 25 years.” And from Virginia Sloan, who runs the Constitution Project, “This is a great day for our criminal justice system. The court recognized the jury’s critical role under our constitution to decide all the facts necessary to impose the death penalty on someone.”

For those who have gazed aghast over the past generation as jury rights have been trampled by tough-on-crime fanatics and liberal elites, there are paragraphs in certain opinions in the Court’s rulings that are as momentous as any in the Warren Court. From whose pen did these sentiments issue?

“My observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt sentencing factors determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.”

John Paul Stevens, you guess? No, Gerald Ford’s appointee is certainly the most liberal on the court but the man writing those splendid words about the crucial role of the jury is the justice whose image has replaced that of James Watt as the liberal fundraiser’s villain of choice: Antonin Scalia.

Scalia’s emphasis on the fundamental role of the jury as guardian of our rights under the constitution runs entirely counter to the trend of the past couple of decades, where judges have, with either the approval or indifference of legislatures and the press, been allowed not only to deprecate the jury’s fundamental right to nullify and set the law aside, but also to set jurors’ verdicts aside and impose their own, often with lower standards of proof.

By and large, liberals have been the architects of these erosions of fundamental popular rights, whether it was Tip O’Neill rushing through totalitarian drugs laws in the mid-1980s; or Clinton’s post-Waco Counter-Terrorism and Effective Death Penalty Act which, among other horrors, junked the doctrine of habeas corpus; or the Hate Crimes statutes written into many states’ codes at the behest of gay, feminist and liberal civil rights groups in the wake of the James Byrd and Matthew Shepard killings.

Scalia exposes the contradictions tellingly in his concurring opinion in Ring v. Arizona, where the court struck down, 7-2, the Arizona statute which allowed judges rather than juries to impose the death penalty. He rightly chided Justice Stephen Bryher, a Clinton nominee from the Kennedy stable, for inconsistency in first of all endorsing the right of judges to overrule the jury in tacking on enhanced punishment under hate crime statutes, and then in Arizona v Ring tacking the other way. Scalia gives this kind of pirouette the coarse put-down, “Death-is-different jurisprudence,” and he makes a telling point.

The momentous Supreme Court ruling known as Atkins v Virginia concrns a case where a man with an IQ of 59 had committed a robbery and a murder and was sentenced to death. The Supreme Court, 5-4, has just taken the view that times have changed and that now it’s not okay to put the retarded to death. (Some might say that the only downside to this decision is that it is no longer possible even to imagine George W. Bush being put on Death Row.)

Scalia, in a dissenting opinion, made an argument in consonance with his view of the jury’s paramount role, as expressed in the Ring decision. Why, he asked, should the determining of a person’s mental competence be allotted to the social scientists, the IQ testers, the battery of so-called experts so memorably stigmatized in the works of the late great Stephen Jay Gould, not to mention Allen Chase. Liberals don’t want to execute the mentally retarded; they just want to abort or sterilize them. In the Atkins trial, Scalia noted, the jury had been given testimony on the murderer’s mental capacity but had regarded it as insufficient in detaining the defendant from the death cell.

Scalia asks, how can one exempt people from the capital penalty on the grounds of mental incapacity to recognize the concepts of punishment and retribution, while putting them away from their rest of their natural lives. He’s consistent, and offers more respectable arguments in this area than Bill Clinton who was asked his view of the Court’s ruling in the light of his own decision as governor of Arkansas to okay the execution of Rickey Ray Rector in primary season, 1992. Clinton claimed that Rector had been of sound mind when he committed his crimes and was only incapacitated by his attempt to shoot himself in the head between the murders and his trial.

Where Scalia is caught in an obvious contradiction is in his endorsement of the notion that only those prepared to vote for the death penalty should be allowed on a jury, and that appeals court judges opposed to the death penalty should recuse themselves in capital cases. “There is something to be said,” Scalia writes in his dissent in Atkins, “for popular abolition for the death penalty; there is nothing to be said for its incremental abolition by this court.” Again, it’s a good argument, but abolition of slavery began in part with jury’s refusing to abide by statutes endorsing slavery. Ditto with religious freedom , starting with William Penn, whose jury refused to convict him for flouting the Conventicle Act.

If he was consistent Scalia would recognize that the only inhibition on jurors being empanelled would be whether they have a material interest in the outcome of the case.

Meanwhile we should honor the tremendous efforts of the defense teams who fought these cases to the Supreme Court and who have been rewarded by two decisions that in an instant overturn the death sentences of 800 people on Death Row, almost a quarter of all the people facing execution in this country today. But the fact remains that it is the death penalty itself that needs to be abolished and this is a peerless moment of opportunity for death penalty activists to press forward.

The US Court majority said in the Atkins decision that the eighth amendment prohibition on cruel and unusual punishment reflects social values which change from century to century and decade to decade (notwithstanding Scalia, who gazes back nostalgically 2000 years to St Paul). What an excellent spring board for an invigorated campaign to end the barbarism of judicial killing.


Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.

2016 Fund Drive
Smart. Fierce. Uncompromised. Support CounterPunch Now!

  • cp-store
  • donate paypal

CounterPunch Magazine


October 20, 2016
Eric Draitser
Syria and the Left: Time to Break the Silence
Jeffrey St. Clair
Extreme Unction: Illusions of Democracy in Vegas
Binoy Kampmark
Digital Information Warfare: WikiLeaks, Assange and the US Presidential Elections
Jonathan Cook
Israel’s Bogus History Lesson
Bruce Mastron
Killing the Messenger, Again
Anthony DiMaggio
Lesser Evil Voting and Prospects for a Progressive Third Party
Ramzy Baroud
The Many ‘Truths’ on Syria: How Our Rivalry Has Destroyed a Country
David Rosen
Was Bill Clinton the Most Sexist President?
Laura Carlsen
Plan Colombia, Permanent War and the No Vote
Aidan O'Brien
Mao: Monster or Model?
David Swanson
Barbara Nimri Aziz
Less Than Two Weeks
Victor Grossman
Suicides and Hopes and Fears
October 19, 2016
Dan Schiller – Shinjoung Yeo
The Silicon Valley Candidate
Mike Whitney
Trump Unchained
Paul Buhle
Criminalizing the Struggle: Incarceration and the Rise of the Neoliberal State
Linn Washington Jr.
Abusing the Abused: Philly Police Abuse Case Typifies All-Too-Common Misconduct by US Prosecutors
Terry Tempest Williams - Brooke Williams
Rejected by the BLM
Binoy Kampmark
Neither War Nor Peace: Shimon Peres, Israel and History
Patrick Cockburn
This Battle for Mosul Will Not Be the Last
Joyce Nelson
Trudeau Bullying on Trade Deal
Thomas Mountain
Revolutionary Islam and Regime Change in Ethiopia
Serge Halimi – Benoît Bréville
The Limits of Eloquence: the Failures of Barack Obama
Mel Gurtov
America’s Dangerous Moment
Jerry Kroth
Questions for Obama Before Leaving Office
Michael Garrity
America is a Nation of Laws: Collaboration and Its Discontents
October 18, 2016
Srećko Horvat
The Cyber-War on Wikileaks
Zoltan Grossman
Stop the Next President From Waging the Next War
Jim Kavanagh
Hillary’s Hide-and-Seek
Robert Fisk
After Mosul Falls, ISIS will Flee to Syria. Then What?
Ted Rall
The 4 Things Hillary Could Do To Close the Deal Against Trump
Pepe Escobar
Why Hillary Clinton is a Bigger Concern for China than Donald Trump
Colin Todhunter
World Wide Fund for Nature: Stop Greenwashing Capitalism, Start Holding Corporations to Account
David Macaray
Whiskey Workers Go on Strike: I’ll Drink to That
James A Haught
After the Election, Back to Important Things
Arturo Desimone
How a Selective Boycott Can Boost External Support for Palestinians
Russell Mokhiber
If Chris Wallace Asks About Street Crime He Should Also Ask About Corporate Crime
Mark Kernan
Moloch in Paris: on the Anniversary of COP21
Carol Dansereau
The Hillary Push: Manipulation You Can Believe In
Andre Vltchek
Will They Really Try to Kill the President of the Philippines?
Sean Joseph Clancy
The Wreckage of Matthew: Cuba and Haiti
October 17, 2016
Paul Street
Pick Your Poison? Presidential Politics and Planetary Prospects
Patrick Cockburn
US Allies are Funding ISIS (and Hillary Knew All Along)
David Swanson
What Hillary Clinton Privately Told Goldman Sachs
Fran Shor
A Rigged System?