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June 28 / 30, 2002
Cockburn / St. Clair
Death,
Juries and Scalia
Tarif Abboushi
Bush's
Double Standard
on Israel
N.D. Jayaprakash
Seething
with Rage:
The Palestinian Saga
Michael Yates
Taking
the Pledge:
Teachers and the Flag
Stephen Zunes
Bush's
Speech a Setback
for Peace
Walt Brasch
The Pledge
v. The Constitution
Cockburn / St. Clair
Strikers
as Terrorists?
Tom Ridge Calls Longshoremen
June 27, 2002
Ralph Nader
Reclaiming
Our Commons
Neve Gordon
Jerusalem
Under Attack
Robert Jensen
Alternative
Futures
David Vest
Darryl Kile's
Great Day
Gary Leupp
The Loya
Jirga Joke
Rahual Mahajan
Arafat
Says US Needs New Leadership; Calls for Fair Elections
June 26, 2002
Robert Fisk
Sharon as
Bush Speechwriter
Mokhiber / Weissman
Brokerman
June 25, 2002
Dave Marsh
The RIAA,
Library of Congress and the Web Pirates
Uri Avnery
Reform
Now!
Bahour / Dahan
Bush:
Off with Arafat's Head
Walt Brasch
Bush:
the Compassionate Exerciser
June 24, 2002
Bernard Weiner
Talkin'
About the F-Word
David Bates
Portland
Gets Dicked:
Cheney Does Oregon
Jo Freeman
Will
the War on Terror Follow the Path of the Cold War?
Tom Gorman
The Only
Thing "Generous" is the Propaganda
Bezhad Yaghmaian
Caught
Between Borders
in a Borderless World
Ben Sonnenberg
Ted
Hughes' Spell
June 22/23, 2002
Douglas Valentine
Sex,
Drugs & the CIA
June 21, 2002
Norman Madarasz
Brazil
Over England:
The Gaucho's Wild Ride
John Borowski
Stossel
and Disney's Crimes Against Nature
Chris Floyd
Southern
Cross: The US Takes Aim at Brazil
David Martin
Of Lies
and Oil: an interview with Rahul Mahajan
James T. Phillips
Serbian
Reservations:
Kosovo 2002
June 20, 2002
Chris Kromm
The South
at War: a Tour of the US Military/Industrial Complex
Jacob Levich
The War
on Terror is
Not a Suicide Pact
Mark Weisbrot
What
are They Doing to Argentina?
Jeffrey St. Clair
and Alexander Cockburn
Fire
Walk With Me:
Terry Lynn Barton and the Flames of Colorado
June 19, 2002
Gary Leupp
Red Targets in Terror War
Lenni Brenner
The Road
Forward for the
Palestinian Movement
Bernard Weiner
Inside
Cheney's Diary:
Cakewalking Through Minefields
Alexander Cockburn
The
Incredible Shrinking President
Resources:
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by Alexander
Cockburn
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The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
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The
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Weekend
Edition
June 28/30, 2002
Death, 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.
This Weekend's
Features
Cockburn / St. Clair
Death,
Juries and Scalia
Tarif Abboushi
Bush's
Double Standard
on Israel
N.D. Jayaprakash
Seething
with Rage:
The Palestinian Saga
Michael Yates
Taking
the Pledge:
Teachers and the Flag
Stephen Zunes
Bush's
Speech a Setback
for Peace
Walt Brasch
The Pledge
v. The Constitution
Cockburn / St. Clair
Strikers
as Terrorists?
Tom Ridge Calls Longshoremen
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