More on the Supreme Court and the Death Penalty:
I'll second my co-blogger Jonathan Adler's criticism of Dahlia Lithwick's latest column, and I'll add another concern: the apparent lack of evidence to support Lithwick's central thesis.
Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening" at the Supreme Court.
But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:
UPDATE: Ed Whelan adds more thoughts here.
Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening" at the Supreme Court.
But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:
1. In one recent case the Supreme Court overturned a capital conviction but Chief Justice Roberts wrote a dissent.I'm not sure why any of these examples are supposed to establish that the Court is out of step with public opinion (assuming, for purposes of this post, that this would be a criticism if true). Granted, it suggests that some individual Justices favor narrowing the role of the courts in the implementation of the death penalty. But none of the evidence actually seems to go to the question of what a majority of the Court has done. And to the extent Lithwick's point is that the Court may change its direction in the future, surely the same can be said about the direction of public opinion.
2. In a 2005 case the Court overturned another capital conviction, reversing a decision written by then-Judge Samuel Alito.
3. In a capital case last year, Justice Scalia wrote a concurrence that included very heated rhetoric.
4. In a recent oral argument, Chief Justice Roberts asked a question that seemed to question some of the Court's recent decisions that increased judicial scrutiny of the death penalty.
UPDATE: Ed Whelan adds more thoughts here.
Related Posts (on one page):
- Whelan on Lithwick & the Death Penalty:
- More on the Supreme Court and the Death Penalty:
- Are Justices "Out of Step" on the Death Penalty?
In fairness to Lithwick, however, Thomas and Scalia consistently dissent on the ground that they will not adhere to 8th circuit precedent, which incorporates something of a majority rule.
Does the 8th Amendment really "incorporate a majority rule"? Seems to me that it allows nationwide majority preference to trump local majority preferences.
It's an evolving standards of decency test. Basically the doctrine requires the Court to look at "objective indicia" of moral approbation, such as state legislation. That's all I meant.
How is a memo written 20 years ago while serving at the pleasure of the president good evidence that Roberts does not share "the burgeoning sense that the machinery of death in this country is broken"?
The court is become less resistant precisely because the executive is moderating.
Lithwick doesn't seem to be able to distinguish 'absolute' and 'relative' effects.
Of course her observations themselves seem like grasping at straws....
It's a minor detail and does not change your larger point about shifting majorities, but Justice Byron White resigned on June 28, 1993. President Clinton filled that vacancy with Justice Ruth Bader Ginsburg, who took office August 10, 1993. Justice Breyer did not arrive on the Court until August 3, 1994 (after Justice Blackmun finally retired).
Most executive decisions to seek the death penalty occur at the state level. And I don't know what state executive you're talking about, but the view from Texas doesn't look at all like that.
Lithwick's claim was that the Supreme Court "looks grievously out of step" with the public. This sounds like she wants to compare the Court today with public opinion today. At the same time, some of her examples suggest that she is actually predicting what the Supreme Court may do in the future. Lithwick doesn't offer throughts on what public opinion in the future may look like, though, which seems puzzling if her point was to say that the two were out of step with each other. Perhaps her point is that it's *possible* that in the future the Supreme Court will enter rulings that are out of step from majority public opinion during the 2004-2006 period? I suppose that's undeniably true, but it seems so obvious as to be a tough basis for a newspaper column.
Offhand, this doesn't strike me as a significant reduction.
Do I correctly assume from that that when you say "executive" you are referring to the local district attorneys?
I don't interact with the DAs. I mean the AG.
In response to your comment, I think the unstated assumption in her piece is that public attitudes toward the death penalty will continue to migrate toward a position that an ever larger portion of the population will either outright reject the death penalty or express a general lack of confidence in it (e.g., her citation to the survey that 'more' people support life in prison than the detath penalty). But the attitude reflected on the Supreme Court will ultimately diverge from that position because those justices recently appointed may (likely?) maintain attitudes toward the death penalty that will be ultimately "out of step" when contrasted with the shift in public attitudes. And because the opportunity to replace Supreme Court justices has not been an all too frequent event (at least recently), the attitudes of the Supreme Court will long term be (to use her phrase again) "out of step" with the public's (on a side note: whether these alleged shifts in public attitudes are translated into legislative changes is a different story.) In the short term, this would be reflected by Supreme Court decisions that do not make incremental steps toward "cabining" the mechanism of death -- as the public seemingly would like. I admit that it takes a bit of "reading into" her piece to get this far with the analysis -- but that was my take on it.
But I take your main criticism as more damning to her piece in general -- she's trying to make a mountain out of a molehill of evidence.
Offhand, this doesn't strike me as a significant reduction.
So if they were averaging 20 and it changed to 30 you wouldn't see that as significant either?
]I don't interact with the DAs. I mean the AG.
Then you should explain exactly what you are talking about.
In Texas, the decision to charge or not charge a defendant with capital murder is made by the local District Attorneys. The sentence of death is imposed after a trial in local criminal court in front of a local jury conducted by, for the people, the local DA.
The AG has nothing to do with that.
The convicted defendant may appeal to the Board of Pardons and Paroles, by appeal I mean ask, for the Board of Pardons and paroles to recommend to the Governor a reduction of sentence ranging from life without parole to a pardon. If and only if the Board of Pardons and Paroles makes such a recommendation may the Governor perform the action, presumably also advised by the AG.
Aside from that, the Governor may, on his own, presumably as advised by the AG, give one (1) thirty extension of the execution.
What is it you are talking about?
As in the case of the actual numbers, it would depend on the exact figures, other circumstances, how the time periods for comparison were chosen, etc.
In any case, the difference between twenty and thirty does not change my low opinion of Texas criminal justice.
The AG conducts federal postconviction litigation.
I'm sorry if you're not familiar with the way capital litigation is conducted, but please take it down a notch with whatever it is you're trying to insinuate by your repeated and loaded requests for me to explain myself.
You are mighty defensive about your state of knowledge.
A fairly objective reading of my post(s) would be that I set forth how death penalties are arrived at in Texas, and then asked you what you meant when you said:
You still have not explained that statement.
I could surmise that what you meant to say was something like:
"I deal with the State AG in the federal court review of Texas state death penalty cases and have not noticed that the state executive has relented at all in its defense of the death penalty as applied in the state courts."
But I don't know what you meant, since that which I surmised you might have meant doesn't sound much like:
since local DAs, not the AG, are the ones who make the decision to seek the death penalty, as opposed to defend the death penalty in federal court once applied.
Perhaps you need to climb down off your high horse.
Chill out, folks.
-- The Mgmt.
All I meant to say was that I have a first-hand appreciation of the executive's commitment to pursuing the death penalty where it believes appropriate. You went into some long-winded explanation about how the AG has almost nothing to do with capital litigation, which is just wrong.
Nothing I said was the slightest bit misleading.
FYI, last message was written before I got the management memo. Feel free to take any and all commentary on the subject down; it's pretty peripheral.
It is too bad you didn't read what I actually said.
And nothing I said was misleading either.
For the record, it is highly unlikely that a public official opposed to the death penalty would get elected in Texas, because a majority of the people of Texas know that there are in fact, some people who need killing, i.e. the death penalty, for what they have done.
The AG is an elected position.
You can say that again.
I could be wrong, but I think the "decrease" is the result of, to be crude, a backlog being reduced as the various appeals etc. have ended.
As I tried to explain above, the atkins decision came down and many capital offenders acquired a constitutional claim against their punishment. These claims had to go through state courts, and their all hitting the federal courts right now.
There are other reasons, my only point had been that it is not attributable to "moderation" by the executive.
Death penalty supporters could get just as much mileage by quoting people's responses to the question, "Do you think that we should execute Osama bin Laden if we capture him and he is found guilty after a trial?" and claiming that yes answers indicate "death penalty supporters." I think the "yes" on that one was about 85% when they asked it a few years back.
On a somewhat unrelated note, Lithwick's claim about declining public support for the death penalty is just plain inaccurate, if opinion polls mean anything. Go to pollingreport.com and you'll see that the decline (from a high in the early 1990s of about 80%) came in the mid 1990s. The last 8-10 years support has been constant in the 64-72% range (i.e., about 2/3 of Americans support it, just under 30% oppose it, and a few are undecided).
I haven't heard any indication that Mr. Rosenthal, who replaced Johnny Holmes as Harris County DA a few years ago, is any less interested in seeking the death penalty in appropriate cases. I believe the Harris County DA brings more death penalty cases than any other in the nation.
"Thomas and Scalia consistently dissent on the ground that they will not adhere to 8th circuit precedent. . . . "
Yep. SCOTUS Petitioners really have to win claims that the sentencer wasn't able to consider all the mitigating evidence by a 5-2 margin, since those two will not entertain Lockett/Penry arguments. So much for stare decisis.
". . . .which incorporates something of a majority rule."
I disagree that a "standard" requires a "majority."