FacebookTwitterGoogle+RedditEmail

The Death Penalty and a Divided Supreme Court

Currently, in the Washington, D.C. area, prosecutors from Maryland, Virginia, and the federal government are competing for the privilege of being the first to seek the death penalty against the beltway snipers. As unseemly as these acts of political one-upsmanship may be, who can argue that the punishment does not fit the crime?

The sniper duo, after all, has multiple premeditated, cold-blooded murders to answer for. They terrorized millions of people for weeks on end.

Meanwhile, this week, the writer/lawyer Scott Turow launched his new book Reversible Errors — the story of a man wrongly convicted of capital murder and sentenced to death — by announcing his conversion to death penalty abolition.

A former federal prosecutor, Turow used to consider the death penalty “an ugly necessity.” But since then, Turow achieved the exoneration of a long time resident of Illinois death row, and has served on the commission to review the death penalty in that state. And now Turow has come to believe that constructing a fair and accurate system of capital punishment exceeds the grasp of human wisdom.

This is the fundamental paradox of the death penalty. For some ungodly reason, American society regularly produces human beings who commit monstrous crimes, the kind of crimes that leave most of us comfortable with idea of execution in individual cases. Yet when we look at the death penalty en masse — that is, when we assess the DNA-validated statistical certainty of erroneous conviction (not to mention the issues of class and racial bias) — many of the same people who would otherwise have been moved to support the death penalty, feel compelled to condemn the whole system.

The power of this paradox is tearing apart the Supreme Court.

The Way the Paradox Plays Out in the Supreme Court

Only a few years ago, a substantial majority of the Court’s Justices was willing to let the death penalty operate with an ever shrinking level of judicial oversight. Yet although the composition of the Court has not changed, that laissez faire attitude now hangs by a single vote.

Last week, a bitterly divided Supreme Court refused by a 5-4 vote to reconsider the constitutionality of the death penalty for juveniles, a punishment that it expressly countenanced as recently as 1988, but that an increasingly vocal contingent on the court is beginning to passionately question. (The case was In re Kevin Nigel Stanford)

Usually decisions not to hear a case are unaccompanied by any comments from the justices. In this case, though, the four dissenters signaled their extreme displeasure in writing. Not only did they criticize the majority for refusing to reconsider the juvenile death penalty, but they also declared the “shameful practice” incompatible with a civilized society.

The Death Penalty Is Apparently Straining Courtesy Among the Justices

Part of the frustration and anger evident in the dissent surely stemmed from the fact that, ordinarily, four votes (equal to the number of dissenters) is sufficient to grant review of a case. Stanford, however, apparently did not fall under the usual rule.

Why? Unlike in the typical case, which comes up to the Supreme Court from the lower courts, here the death row inmate had applied directly to the Supreme Court for a writ of habeas corpus that would vacate his death sentence. Evidently, five votes are necessary to grant review of such a direct application.

One might have thought that at least one member of the Stanford majority would have accommodated the strong views of the four dissenters by agreeing to set the case for argument and decision on the merits. Should a technical distinction potentially cost a man his life? Stanford’s is a death case, no matter how it reaches the Court.

And what about the touted current collegiality of the Justices? Couldn’t one have lent a vote when it seemed to mean so much to the other four — not to mean the death row inmate?

It seems that within the Court, the debate over the death penalty now leaves no room for accommodation or collegiality. Instead, as was true in the late 1980s, there is an unbridgeable gap — between those who do not want to look again at the troubling realities of the capital punishment system, and those anxious to pursue the legal conclusions to which those realities point them.

The Shift in the Views of Souter, Ginsburg, and Breyer

The resurrection of this deep divide results from a steady shift in the views of Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. (Justice John Paul Stevens has been a near-abolitionist on death penalty issues for some time).

What is the source of the shift? For one thing, it is probably significant that none of these justices had meaningful experience with the death penalty prior to joining the Court. They are all from jurisdictions where the death penalty long ago withered into non-existence.

Coming to the issue afresh, Souter, Ginsburg, and Breyer spent their first few years on the Court in a state of relative complacency in the capital cases. That has changed, and changed profoundly.

After years of inescapable confrontation with the death cases that incessantly bombard the Court, they have been moved from complacency to active skepticism. Now they vote repeatedly to limit the scope of the death penalty and re-examine the process by which it is imposed.

The Resurrection of an Old and Deep Death Penalty Divide

In moving in this direction, the trio of Justices is following an honorable path. Justice Harry Blackmun came to the Court in 1971 absolutely committed to the constitutionality of the death penalty. He retired, more than two decades later, a death penalty abolitionist.

Blackmun’s transformation did not reflect a moral conversion. Rather, it reflected an evolution of thinking driven by weekly observation of how police, prosecutors, judges, and juries make the choice between life and death.

Thanks in part to DNA testing, we now know more than ever about the faults in this system. To a scientific certainty, we know that people confess to capital crimes they did not commit, that key eyewitnesses make tragic mistakes, that forensic experts exaggerate their knowledge, that informants outright lie (perhaps to secure prosecutorial favor).

Yet the system nevertheless relies on such flawed evidence in determining who should die. In short, it has a flaw at its heart.

We also know — to as close an approximation of certainty as statistics permit — that race plays a powerful and insidious role in meting out death sentences. And we know to a moral certainty that the single most important factor in whether a defendant receives a death sentence is the quality of his lawyer.

Should the Supreme Court’s View Be Systemic, Or Individual?

All of which returns one to the paradox. Is it the role of the Supreme Court to think about the snipers, or the system?

For five justices, the public demand for protection and revenge against the evildoers of the world takes precedence over systemic concerns. And so they have created an elaborate set of rules to relegate to others the Herculean task of protecting against inevitable human failure.

For the other four, in contrast, the seeds of doubt have sprouted and are growing daily. Onto all their desks, the habeas applications and the cert. petitions and the horror stories of innocent people sentenced to die will continue to stream. Someday, and perhaps not so far away, the force of experience — as it did for Blackmun, as it has for Turow — will surely carry the day.

EDWARD LAZARUS writes about, practices, and teaches law in Los Angeles. His most recent book is Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Lazarus is a columnist for FindLaw Writ.

 

More articles by:
September 24, 2018
Jonathan Cook
Hiding in Plain Sight: Why We Cannot See the System Destroying Us
Gary Leupp
All the Good News (Ignored by the Trump-Obsessed Media)
Robert Fisk
I Don’t See How a Palestinian State Can Ever Happen
Barry Brown
Pot as Political Speech
Lara Merling
Puerto Rico’s Colonial Legacy and Its Continuing Economic Troubles
Patrick Cockburn
Iraq’s Prime Ministers Come and Go, But the Stalemate Remains
William Blum
The New Iraq WMD: Russian Interference in US Elections
Julian Vigo
The UK’s Snoopers’ Charter Has Been Dealt a Serious Blow
Joseph Matten
Why Did Global Economic Performance Deteriorate in the 1970s?
Zhivko Illeieff
The Millennial Label: Distinguishing Facts from Fiction
Thomas Hon Wing Polin – Gerry Brown
Xinjiang : The New Great Game
Binoy Kampmark
Casting Kavanaugh: The Trump Supreme Court Drama
Max Wilbert
Blue Angels: the Naked Face of Empire
Weekend Edition
September 21, 2018
Friday - Sunday
Alexandra Isfahani-Hammond
Hurricane Florence and 9.7 Million Pigs
Andrew Levine
Israel’s Anti-Semitism Smear Campaign
Paul Street
Laquan McDonald is Being Tried for His Own Racist Murder
Brad Evans
What Does It Mean to Celebrate International Peace Day?
Nick Pemberton
With or Without Kavanaugh, The United States Is Anti-Choice
Jim Kavanagh
“Taxpayer Money” Threatens Medicare-for-All (And Every Other Social Program)
Jonathan Cook
Palestine: The Testbed for Trump’s Plan to Tear up the Rules-Based International Order
Jeffrey St. Clair
Roaming Charges: the Chickenhawks Have Finally Come Back Home to Roost!
David Rosen
As the Capitalist World Turns: From Empire to Imperialism to Globalization?
Jonah Raskin
Green Capitalism Rears Its Head at Global Climate Action Summit
James Munson
On Climate, the Centrists are the Deplorables
Robert Hunziker
Is Paris 2015 Already Underwater?
Arshad Khan
Will Their Ever be Justice for Rohingya Muslims?
Jill Richardson
Why Women Don’t Report Sexual Assault
Dave Clennon
A Victory for Historical Accuracy and the Peace Movement: Not One Emmy for Ken Burns and “The Vietnam War”
W. T. Whitney
US Harasses Cuba Amid Mysterious Circumstances
Nathan Kalman-Lamb
Things That Make Sports Fans Uncomfortable
George Capaccio
Iran: “Snapping Back” Sanctions and the Threat of War
Kenneth Surin
Brexit is Coming, But Which Will It Be?
Louis Proyect
Moore’s “Fahrenheit 11/9”: Entertaining Film, Crappy Politics
Ramzy Baroud
Why Israel Demolishes: Khan Al-Ahmar as Representation of Greater Genocide
Ben Dangl
The Zapatistas’ Dignified Rage: Revolutionary Theories and Anticapitalist Dreams of Subcommandante Marcos
Ron Jacobs
Faith, Madness, or Death
Bill Glahn
Crime Comes Knocking
Terry Heaton
Pat Robertson’s Hurricane “Miracle”
Dave Lindorff
In Montgomery County PA, It’s Often a Jury of White People
Louis Yako
From Citizens to Customers: the Corporate Customer Service Culture in America 
William Boardman
The Shame of Dianne Feinstein, the Courage of Christine Blasey Ford 
Ernie Niemi
Logging and Climate Change: Oregon is Appalachia and Timber is Our Coal
Jessicah Pierre
Nike Says “Believe in Something,” But Can It Sacrifice Something, Too?
Paul Fitzgerald - Elizabeth Gould
Weaponized Dreams? The Curious Case of Robert Moss
Olivia Alperstein
An Environmental 9/11: the EPA’s Gutting of Methane Regulations
FacebookTwitterGoogle+RedditEmail