IMORAL MAXIM #10: THE DEATH PENALTY

Immoral Maxim & Repartee #10: The Supreme Court and the Dealings of Death

The Death Penalty and the 5th, 8th, and 14th Amendments.

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia (1972) Stewart, concurring.

Immoral Maxim #10:

“Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” [Antonin Scalia, dissenting in Atkins v. Virginia (2002) which struck down the Death Penalty for the mentally retarded] [F1]

“From this day forward I shall no longer tinker with the machinery of death.” Harry Blackmun, dissent, denial of certiorari Callins v. Collins, (1994)

Death Penalty cases arise before the Supreme Court in various forms — usually raising questions of either “due process of law” or “cruel and unusual punishment.” As a general rule, in non-capital cases, Scalia tends to be skeptical of the claims of convicted petitioners and will frequently support very harsh penalties. [F2] This is even more true of his findings in death penalty cases where — and I am using my words with care — Scalia tends to write “with a vengeance.”
Before discussing the results of Scalia’s “jurisprudence” and his methodology, it is important to note some features of his style of argument. Two characteristics of his approach should alert us to the fact that something rather peculiar is going on in the mind of this judge. One that hits me immediately is his frequent tendency to refer to those opinions of the Court with which he disagrees as the Court’s “death-is-different jurisprudence.” This bracketing of the phrase “death is different” suggests that Scalia harbors some doubt as to whether the death penalty is really different in kind from other punishment. If Scalia actually has something new to say on this issue he needs to say it without innuendo. Secondly, in a number of his dissents, after some short introductory declarations, Scalia often describes the terrible details of the crimes committed by the petitioner in the cases before him. Indeed, Scalia appears to almost relish presenting a parade of horribles as he explains why he thinks, say, that mental retardation or youth should not restrict our use of the death penalty in the cases that have appeared before him. As a matter of fact, a number of death penalty cases that come before the Court involve very brutal crimes. However, Scalia’s opinions in these cases read more like the self-righteous pleadings of the prosecutor than the reasoned considerations of a judge.
If Scalia’s uninhibited style requires some attention, the actual holdings or “results” of Scalia’s work are readily seen to be on the relatively cruel and indifferent end of the judicial spectrum. He has consistently — often passionately — argued that the Death Penalty should be applicable to minors (including 15 year olds) [Thompson v. Oklahoma (1988); Stanford v. Kentucky (1989); Roper v. Simmons, 543 U.S. 551 (2005)], rapists [Kennedy v. Louisiana (2005)] [F 3] as well as to the mentally retarded [Penry v. Lynaugh (1989); Atkins v. Virginia, 536 U.S. 304 (2002)]. He has argued that Victims Impact Statements with their distracting emotional appeal should be allowed at sentencing — even though these statements of family and friends are inherently difficult to rebut when they are overstated [Booth v. Maryland (1987); Payne v. Tennessee (1991)]. He has argued that persons who would execute anyone convicted of a potentially capital murder are qualified to sit as ‘neutral jurors’ while rejecting as ‘harmless error’ a verdict by a jury improperly altered when a juror who expressed some doubt about the reach of the Death Penalty was excused. [F 10-4] Most troubling indeed was his dissent in Simmons v. South Carolina (1994). In this case, the judge refused to answer a jury inquiry about the nature of parole (the defendant under South Carolina law) would have been ineligible for parole even though the prosecutor had presented the argument that the jury should consider the defendant a “threat” — and impose the death penalty as an act of “self-defense.” Scalia’s tortured opinion looks everywhere except at the offending words themselves. Even the three conservative justices Rehnquist, Kennedy, and O’Connor — no tender-hearted liberals seeking to coddle criminals these — voted to reverse the South Carolina Judge. [F 10-5]
As suggested above, Scalia’s judicial approach in Death Penalty cases is similar to his approach on the 8th Amendment’s prohibition of Cruel and Unusual punishment or other cases involving ‘due process of law.’ The most remarkable characteristic of Scalia’s “jurisprudence” on Death Penalty cases is not that he believes that the Death Penalty is “Constitutionally” justified — the Founders clearly believed that the Death Penalty was appropriate in a number of circumstances and today most citizens and judges within the United States still believe that to be the case. What is surprising is how narrowly and vociferously he defends practices such as the death penalty for minors and the mentally retarded. He also consistently raises artificially high legal barriers in death penalty cases which present credible prima facie evidence of improper, unjust and/or illegal activity in the courts below. Scalia does not believe that we should apply our common understanding of cruelty to the facts of the case. Rather he asserts that we are legally bound to interpret ‘cruel and unusual’ as, in effect, meaning an acceptance of almost any practice which we can find in the historical record of the colonies and new republic of the late 18th Century.
Scalia’s record is that for him the 8th Amendment in death penalty cases is virtually a dead letter. [F 10-6] His use of the due process clause as merely formal in death penalty cases is a classroom exemplar of judicial malfeasance (Cf. Repartee #5). In Appendix C I analyze Scalia’s methodology in more rational terms. Essentially, I argue there that the penology of “retribution” improperly taints the notion of deterrent justice with the irrational and unjustifiable thirst for revenge. Scalia’s inordinate justifying analysis of this ancient tendency within the law helps to make my case. His occasional casual comments about the unlikelihood of anyone being executed even when innocent are silly, even frivolous. There is, however, an important exception to my list of objectionable death penalty opinions. In a concurring opinion in Ring v. Arizona (2002) Scalia supported the position that judges cannot and should not overrule a jury’s recommendation for mercy in Death Penalty cases. [F 10-7] In spite of such extenuating case, however, on far too many capital cases Justice Antonin Scalia’s position has been, at best, a stance of malignant indifference — and, at its worst, a methodology of active and actual malice.

FOOTNOTES
[F 10-1] A little more revealing of some inward, usually unexpressed complexities is his dissent in Booth v. Maryland (1987) which — until overturned a few years later — banned victim impact statements from death penalty sentencing procedures. “Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court.”
[F 10-2] See Repartee #8. Some exceptions are noted in Appendix A.
[F 10-3] Kennedy v. Louisiana was a particularly terrible case involving the rape of an 11-year old. If one wished to reinstitute the death penalty for a crime not involving murder, this appears to be your case. But that is precisely the point, prosecutor’s seeking public approval in sensational cases and sitting juries filled with righteous indignation are a prime source for both disparate sentences and the conviction of the innocent. The judicious approach is to forgo some pleasure in “full revenge” in order to live in a fairer — and therefore safer — society. If this is an elitist approach — so be it.
[F 10-4] Cf. Appendix E - Casuistry in the Opinions of Justice Antonin Scalia. In my opinion,Scalia’s most egregious inconsistencies rise to the level of casuistry. These inconsistencies are particularly evident in death penalty cases.
[F 10-5] Also, see Repartee # 5 for his comments about “actual innocence” as a non-judiciable factor.
[F 10-6] See Appendix D - Scalia’s Constitutional Dead Spots.
[F 10-7] Of course, a Life Sentence without the Possibility of Parole is not usually a particularly high standard for use of the term “mercy.”


CASES

Atkins v. Virginia, 536 U.S. 304 (2002) Scalia dissent.
Booth v. Maryland, 482 U.S. 496 (1987)
Callins v. Collins, 510 U.S. 1141 (1994) certiorari denied.
Furman v. Georgia, 408 U.S., at 306 (Stewart, J., concurring).
Kennedy v. Louisiana, #07-343 (2005) Scalia dissent
Payne v. Tennessee, 501 U.S. 808 (1991)
Penry v. Lynaugh, 492 U. S. 302 (1989)
Ring v. Arizona, 536 U.S. 584 (2002) Scalia concurrence
Roper v. Simmons, 543 U.S. 551 (2005) Scalia dissent
Simmons v. South Carolina, 512 U.S. 154 (1994)
Stanford v. Kentucky, 492 U.S. 361 (1989) Scalia: Court Opinion
Thompson v. Oklahoma, 487 U.S. 815 (1988)