Justice Scalia's concurring opinion in Baze v. Rees is a must-read. Responding to Justice Steven's newly-minted view that the death penalty is now somehow always a violation of the Eighth Amendment, Justice Scalia marshals the arguments in favor of retribution and deterrence (citing Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L.Rev. 703, 706 (2006), among other sources). His opinion concludes powerfully:
But actually none of this really matters. As Justice STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens' experience that reigns over all.
I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.
----------------------------------
Amen.
In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim.16 This trend, while appropriate and required by the Eighth Amendment’s prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the
retribution rationale is based.
And Scalia's claim that he takes no position on the desirability of the death penalty is the most disingenuous thing I've ever heard.
He was just waxing philosophical, and Scalia was tweaking him for it. As Scalia tweaks go, this one won't even leave that much of a bruise -- not on Stevens, whose thick skin reflects his decades on the Court.
It essentially reduces to the proposition that retribution is an all or nothing proposition. Either we must go back to drawing and quartering or we must abolish the death penalty altogether, simply because less barbaric methods of execution cannot be "retributive" enough. That of course is nonsense. What's more, it is not up to the Supreme Court to determine how much retribution is enough. If the society believes that lethal injection serves sufficient retributive function, why is Justice Stevens' opinion to the contrary matters?
Well, I don't know. Scalia is widely knows as a practicing Catholic and the Catholic church is opposed to the death penalty--he very well may be personally opposed as well. Of course, that's his very point--it doesn't matter what he thinks.
"knows" = known
For this alone he should be impeached and removed from the court. If the constitution specifically permits something (the death penalty), that thing cannot be on its face unconstitutional. The arrogance expressed by Stevens is a direct slap at every citizen of this country. You don't count. Your vote means nothing. The constitution is only what I say it is and don't you dare believe your lying eyes. Vanguard of the proletariat crap. For this reason alone it is enough to vote for McCain.
I agree with you completely. Stevens should be removed from the court. But let's face it, his kind of thinking is common fare among elites in government, media, academia and the legal system. They have usurped American democracy. Europeans are even worse off. After voting down the EU constitution several times, the European elites shoved it down the throats of the people by imposing it as a treaty. The people of western Europe stood by powerless watching their governments dissolve national sovereignty by fiat.
I wish I had your confidence in McCain. None of the above for president this year.
A judge deciding the case might do as Justice Stevens did, and write, "The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of any punishment under the Eighth Amendment . . . I have relied on my own experience in reaching the conclusion that the imposition of this sentence on someone with fear of heights is cruel and unusual and therefore unconstitutional."
What is the problem here, people? What is wrong with Justice Stevens relying on his own experience in deciding when an unusual punishment is also cruel? (The death penalty is now so rarely imposed that it can reasonably be called "unusual.")
"Our"?
Look, I'm an opponent of the death penalty. But I don't believe for a minute that the Constitution was written in such a way to exclude capital punishment. The Fifth Amendment provides a precondition for execution, and the Fourteenth applies that condition to the states.
But, one objects,the Constitution"evolves," and thus the question of what the Founders meant does not determine what the Constitution means /toady/.
In reality, however, the Constitution does /not/ evolve. What evolves is the society to which the Constitution applies, and thus that society's understanding of the words in the Constitution change. That's inevitable.
But what we are then left with is an /epistemological/ problem: How does one KNOW what the evolving interpretation of any given provision of he Constitution is at this time? One does not have to be an Originalist or strict constructionist (I'm not) to see that there is a problem here. Is a Supreme Court justice in a good position to KNOW the prevailing "judgment" concerning the "acceptability" of the death penalty? Why?
Steven's epistemology is gnostic in this case: He knows not only what the standard is, bu where it is going. His evidence is some polls and some sociological studies, none of which speak to whether there is broad support for executing at least /some/ people who are convicted of /some/ crimes. Again, I would rather that no one be executed. But Stevens provides me with no evidence that prevailing "judgment" agrees with mine at this time.
On page four he points to the lack of a "nationwide endorsement" of one of the chemicals in question, bringing in the actions of state legislatures to support his interpretation. Yet it is equally clear that there is no nationwide endorsement of his view on capital punishment. If the chemical needs to go, so does his rather simplistic epistemology.
@A. Zarkov: Just for the record, the original Constitutional Treaty was also a treaty, and now it's been replaced by a treaty that's not a constitution. (No more flags, national anthems and other things that make it look like one. The current Reform Treaty is similar in nature to the other treaties of the last 20 years.)
As for the general topic of this thread, I think Justice Stevens could have put it better, but he's generally right. What's cruel and unusual depends on "evolving standards of decency", etc., as it was supposed to from the start. The question is, indeed, how do you know? The answer, at least since Marbury v. Madison, is that it is up to the Supreme Court to decide, in the end. If and when, in their judgement, the standards of society have evolved to the point where the death penalty is considered cruel, it will be held unconstitutional.
In that regard, I don't think the 5th amendment really matters. That amendment merely sets rules for the imposition of the death penalty to the extent that the death penalty is not forbidden by any other part of the constitution. (Cf. how the 3rd and 4th amendments both have different things to say about the government's right to disturb you in your own home. Scalia's argument is equivalent to saying that anything permitted by the 4th amendment must automatically be constitutional, regardless of what any other amendment says.)
Of course that's if you don't subscribe to Justice Thomas's disgusting opinion of what cruel and unusual punishment is.
And with regard to Scalia, he has to claim agnosticism on the desirability of the death penalty. If he announces that he's personally for it or it's good for society, he creates a big issue because he's Catholic. If he announces that he's personally against it or it's bad for society but has to let the law stand, then he's close to triggering his own recusal conditions--the right legal conclusion being the wrong moral conclusion. So he is boxed in.
Justice Thomas's opinion of cruel and unusual punishment (at least with regard to the choice of drugs used to pefrom the procedure) is that it is not cruel and unusual punishment where the method utilized is not "deliberately designed" to cause pain.
Setting aside whether you believe that that is the right analysis, (and I really am trying to understand your argument on this) how is that a "disgusting opinion"?
Just a few days ago I saw a tape of a speech that Scalia gave to some high schoolers in which he explained that while he found flag burning abhorrent, he nevertheless voted that criminal prohibitions on flag burning violate the first amendment.
Is he now required to recuse himself in all flag-burning cases?...all expressive conduct cases?
Actually, that sounds more like cyanide, which irreversibly binds hemoglobin. Nitrogen just displaces oxygen, and interferes with the CO2 release that triggers the breathing reflex ... folks I've known in industry who passed out in Nitrogen atmospheres (used to inert vessels with flammable contents) say they dropped like a sack of cement ... only takes a few seconds to lose consciousness. Your body doesn't even try to keep breathing. Might be a good candidate for DP.
I really like Scalia's approach. All the comments that are critical of it seem like nothing more than folks trying to force their personal opinion, dripping with "holier than thou" and "I've got the moral high ground" sentiment, down the rest of our throats.
You are free to have your own opinion, but that doesn't make it good legal thinking. My opinion? Some people don't deserve to live.
Only the Irish Republic has been permitted to vote on the current EU Constitution disguised as a treaty. This leaked email shows the how the government plans to deceive the voters as to the nature of what they will vote on.
"The current Reform Treaty is similar in nature to the other treaties of the last 20 years."
Which treaty of the past 20 years takes away the power of member states to set their own tax and social policies and effectively gives unelected ministers the power to rule by decree?
From CNN in 2002: " Supreme Court Justice Antonin Scalia on Monday criticized his church's position against the death penalty, saying that Catholic judges who believe capital punishment is wrong should resign.
The devout Roman Catholic said after giving it "serious thought" he could not agree with the church's stand on the issue."
In fact, Scalia does the same thing in First Amendment Establishment Clause cases - he says our nation was founded by "judeo-christian" principles and thus in his view, statutes and displays honoring such principles are perfectly fine. Only Scalia doesn't follow precedent, he actually dissents. Sure, he is not quite as blunt as Stevens in saying "it's my opinion" but it's not like Scalia has any sources that show the framers intended this to be a christian (or "judeo-christian" to appease the jewish lobby as christians take over the country) nation. In fact the evidence shows quite the contrary.
Scalia will decide religious cases as a Catholic, which is worse than what stevens is doing - stating an opinion about the constitutionality of something. Scalia defends his actions by saying "there is no catholic way to be a supreme court justice just like there is no catholic way to cook a hamburger" ... yet there most certainly is a "catholic way" to decide, say, an abortion or establishment clause case. The "catholic way" has nothing to do with the constitution, either.
An opinion formed on one's objective and subjective experiences and observations is FAR superior to an opinion based on religious dogma. Opinions based on religious dogma are based on faith. That means they are stupid, erroneous, asinine, pigheaded, likely prejudicial to other persons, possibly racist, and controvertible by data. Meanwhile, Stevens' observations about the death penalty are pretty much undisputed. The only question is whether those observations mean it is violative of the 8th Amendment C&UP clause (I don't think that it is).
Scalia is:
1. Certain that the death penalty is clearly constitutional, which for him as a judge is the only question that matters.
2. Critical of the magisterial position on the death penalty because he does not find it rooted in Christian tradition. He even finds it non-binding. So, despite being Catholic, he is free to reach his own conclusions.
3. Nonetheless personally neutral on the issue of the death penalty's utility and only willing to state that he does not find it immoral or unconstitutional.
4. Convinced that any judge who agrees with the magisterial position and finds the death penalty immoral must resign. This is not the magisterial position on those judges' duty and is a consequence urged by Scalia. (How convenient for him to clear the bench of death penalty opponents!)
@A. Zarkov: I'd be more than happy to explain in detail why you're wrong, but I think that would be more than a little off topic. You should, however, feel free to comment on the blog of Commissioner Margot Wallström, which is the place where I usually engage in debate about how evil the EU is or isn't. As it turns out, there are quite a few people who share your opinion.
@Kenvee: And yet I cannot escape the impression that the kind of remarks Justice Stevens quotes about McVeigh are in fact representative of wide swathes of US society.
The 8th is in place to prevent the govt from running roughshod over the people.(I consider the judiciary govt). In the context of the govt prosecuters and judges metting out punishment whithout the support of society (people). How can a sentence be considered cruel or unusual if it is enacted thru the legislative and executive branches of govt?
The example of a judge inventing a sentence of window washing a highrise is extremly illustrative to this debate. If a judge would invent this punishment, then I understand an appeal to a higher court. But if society thru its elected legislators enacted the punishment and a jury chose the punisment, any judge would have no legal standing to overturn the will of the people. What special skill or ability in imbued to a person upon recieving the title of judge that enables a judge t5o devine what is "proper" in todays society?
Although we often hear about the evolving standards of decency in society, Stevens couldn't care less about society's standards. He explicitly says, and means, that what matters are his own standards, society's standards be damned.
It's one thing for the Court to try to suss out what society's standards are; it's another to dismiss them because they don't match the personal views of the judges.
I've been thinking about this a little this morning and it leads me to a question that I don't have a good answer to, that being, even if we assume that the Supreme Court is in a good position to KNOW the prevailing "judgment" concerning the "acceptability" of the death penalty, why does that lead to the death penalty being cruel and unusual?
Even if we assume that the majority of Americans are against the death penalty, there a variety of reasons why people are against the death penalty that have nothing to do with the possibility of harm to the recipient of the penalty (racial disparities, wrongful convictions, the inability to correct mistakes, etc.). In fact, I'd wager that the majority of death penalty opponents (at least in the US, I don't know if it's true internationally) oppose death penalty on grounds other than the potential of pain to the recipient. How does this fit into the 8th Amendment construct?
On his recent visit to U.Va., Justice Scalia fielded questions. Someone in the crowd asked a perfectly predictable (but, from the questioner's tone, clearly earnest rather than "gotcha!") question about Bush v. Gore, and Scalia responded, "Of course I have no problem with Bush v. Gore; in fact, I'm happy with it. My guy won!" He then moved on to the next question without even making a half-hearted attempt at a serious answer.
Now, clearly, he was just being flippant in response to the question. But his refusal to engage an honest, serious question about rule by judicial fiat leads me to think that he has little, if any, concern about such a system, so long as the right people are in charge.
What Scalia said was that the death penalty was constitutional, and thus (Catholic) judges who couldn't set aside their religious views on the death penalty should resign.
Interesting. In that respect, Stevens is becoming more and more like Justice Goldberg, who once famously argued that the Court should find capital punishment cruel and unusual, despite clear public opposition, because it was the Court's job to force the evolution of society's standards of decency.
@David M. Nieporent: I read Justice Stevens' opinion to mean what I wrote. From the context, I'd say that by "we"/"our" in many parts of his argument he means American society, such as here:
Where he discusses the role of the judge, such as on p. 14 of his opinion where he discusses Justice White's opinion in Coker v Georgia, the question is less about the standards of society, but more about the question of excessiveness, i.e. the question whether any "social or public purpose" is served by imposing the death penalty. This is more a question of fact, where Justice White justifiably based his assessment "on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty."
I don't read Stevens' opinion as generally advocating the idea that his standards somehow trump those of American society.
You are free to have your own opinion, but that doesn't make it good legal thinking. My opinion? Some people don't deserve to live.
What happens when an innocent person is executed? With our muddled and often corrupt and incompetent legal system this is bound to happen if it hasn't happened several times already. The number of innocent people freed from death row and for other serious crimes certainly shows that this is likely the case.
And what's the retribution model for the family of the wrongly executed? I haven't heard this dicussed much by the pro death penalty crowd. I would suggest formally and humanely executing the prosecutor and one family member from the family of the victim they were wrongly accused of killing. This is hyperbole, but not by much. If you're going to engage in retributive barbarity with the possibility of being completely mistaken, you better be prepared to face the consequences of your incompetent barbarity.
Why even bother with the Bill of Rights: if the legislative and executive branches like it, it has to be good!
The Supreme Court overturned the death penalty in 1972 because juries lacked sufficient discretion to exercise mercy and therefore the penalty was arbitrary and capricious. These days, the jury has total discretion and the result is arbitrary and capricious.
Whether a defendant gets a death sentence these days does not usually depend on the nature of the crime. It turns on the political ambitions and abiity of the prosecutor; the ability of the defense counsel; the ability of the defendant's habeas counsel; the defendant's race and gender; and the social status of the victim, whether or not known to the defendant at the time of the crime. People who kill priests tend to get death sentences more than people who kill prostitutes.
The game is not worth the candle.
Actually, Scalia met with law students earlier in the day. I witnessed a student asked him about Bush v. Gore and Scalia engaged in a 5 min. conversation with him about it.
Please point to me those "innocent" people who have been executed. Just one. By name. In his Kansas v. Marshconcurrence, Justice Scalia threw down the gauntlet on the issue. I have yet to see any of the abolitionists pick it up and demonstrate that Justice Scalia was wrong.
This is patently absurd. The "very premise on which public approval of the retribution rationale is based" is that people who commit certain crimes deserve to be dead. The fact that evolving standards of decency have imposed limits on the methods we can legitimately use to bring about the deaths of these people is irrelevant. Stevens might as well declare incarceration itself unconstitutional since evolving standards of decency now limit the ability of the police and the prison guards to rough up inmates before tossing them in their cells.
Presumably Scalia is alluding to Amendment 5, which begins: "No person shall be held to answer for a capital, or otherwise infamous crime, unless..."
What, exactly, is wrong with that, where the framers of the Eighth Amendment used vague and subjective language that necessarily calls for the incorporation of a judge's personal intuitions into the constitutional analysis? Does anyone think that the drafters of the Eighth were such dullards as to not realize that the obvious consequence of the phrase "cruel and unusual" would be to require members of the judiciary to make determinations on the basis of their own experience as to which punishments were excessively cruel, and therefore unconstitutional? Even an originalist interpretive approach has to acknowledge that the "evolving standards" model is built inescapably into the text and has been there since the beginning. One might reasonably argue that the innate subjectivity of the Eighth Amendment is a flaw in the constitutional scheme, but Stevens's analysis does no more or less than his duty as a judicial officer to make the determinations clearly called for by the constitutional text.
Quite frankly his opinion reads as almost a bad parody of originalist thought.
Personal intuitions? So a judge is supposed to GUESS what is constitutional, based on how he personally is feeling that day? Is this the Rule of Law or the Dating Game? Is that how you get a result that says the death penalty is not constitutional when the words of the Constitution itself expressly permit it? Or is that how you get a result that bans guns when the words of the Constitution says it's a right of the people?
Sorry. Words mean things and have a common understanding. It is flat out nonsense to say that lethal injection is cruel AND unusual.
The problem with this is not that Stephens says society's standards be damned. That's just typical judicial arrogance from the left. It is to be expected. The REAL problem is the premise itself: evolving standards of decency. I can't find that phrase in the Constitution. The test, as described in the Constitution, is whether something is cruel and unusual. We know what was considered cruel and unusual when the Amendment was adopted. "Evolving standards" is only a way to re-word the true test into something that allows a judge to change the result to whatever he wants it to be. So of course Stephens is going to change the result - his new premise itself permits it! You have to understand that the that the premise of "evolving standards" itself is NONSENSE. The correct premise should be whether something is "cruel and unusual."
Give a mouse a cookie and he'll ask for a glass of milk. Re-word the premise from "cruel and unusual" to "evolving standards" and don't be surprised if they "evolve."
The people who outlined the idiotic "evolving standards" test are the ones who should've been impeached.
There are plenty of people executed who have raised newly-discovered exculpatory evidence (DNA or otherwise). When the state challenges the evidence and wins, the person is still deemed to be "guilty" and thus a "guilty" person will have been executed. The state will never concede someone is innocent and execute them anyway.
As for cases of exculpatory evidence being found after an execution, it happens but there's never a hearing to determine whether the person was innocent. The case of Ruben Cantu is a good example. Without a hearing, it's only speculative that Cantu was actually innocent. So again, the state can claim a guilty person was executed. No court ever found him innocent, nor will any court ever make such a finding.
So the challenge to "name an innocent person who has been executed - just one!" is horrendously disingenous.
But I'll name one anyway. Ruben Cantu was innocent and was executed by Texas. There.
Who is this "we"? Is it not the Court itself? And what authority does the Court have to "evolve" our "standards of decency"? (In reality, to compell us to agree with it's own moral views.)
Yeah.
It strikes me that judges waxing philosophical could and should be construed as disqualifing under the "good behavior" condition under which they serve. It's malpractice, plain and simple. They are supposed to be technicians, not philosopher kings.
You didn't respond to my point at all. First of all, I'm not talking about the Second Amendment; my comment was restricted to the Eighth and specifically to the inherent and likely intentional subjectivity of the phrase that the framers of that amendment incorporated as the substantive legal criterion. Second, for the record, I agree with the comments above that the references to deprivation of life in the Fifth and Fourteenth Amendments do not resolve the matter because those amendments simply impose upon the state the obligation to provide due process for deprivations that are otherwise constitutional, saying nothing about whether any particular deprivation of life or liberty is or is not a violation of the Eighth Amendment. I realize that that is perhaps a controversial point but it isn't where my comment was headed. The point I was making, again, is that where the plain text of the Constitution expressly uses a subjective term like "cruel and unusual" as a legal standard, there simply is no distinction between the "rule of law" and the application of a judge's personal intuitions-- because the text of the Constitution makes those intuitions relevant. This is not a wholesale endorsement of the living Constitution model, but simply a recognition that, within the unique confines of Eighth Amendment jurisprudence, even a textualist should acknowledge that a judge's personal view of which punishments are "cruel" must be given some legal weight.
Anyone would think, reading this thread, that Stevens voted *against* permitting death by lethal injection.
In fact, he voted to get the execution machine rolling along again. Read the freakin' syllabus, if paragraphs are too hard for you:
Moreover, although experience demonstrates that imposing that penalty constitutes the pointless and needless extinction of life with only negligible social or public returns, this conclusion does not justify a refusal to respect this Court’s precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods, under which petitioners’ evidence fails to prove that Kentucky’s protocol violates the Eighth Amendment.
Putting aside his personal opinions to rule in accordance with the law -- isn't that what the "conservatives" at this blog favor?
But no. Your triumphalism is such that no one is supposed to even personally disagree with you. And then you wonder why people call you "wingnuts."
The necessary corollary to that is that the state MAY deprive a person of life WITH due process of law.
I think both of those would probably count as implicitly permitted. "Explicitly permitted" seems like a bit of an overstatement. Lots of times in legal argument people use the word "explicit" when they really shouldn't, and I think Scalia made that mistake here.
If you want to support the death penalty that is your decision, but do not lie to yourself that innocent people won't be killed in the process.
Ok, buddy. Let's "compare and contrast":
Years of Experience:
*Catholic Church-1900+
*JPS-87
Number of People Doing the Experiencing:
*Catholic Church in US--@70 million
*JPS-1
I think that the RC Church can claim a broader, richer base of experience than can Mr. Justice Stevens. So I'm not certain how you've come to your list of adjectives. It strikes me that all of them could be applied to the opinions of an INDIVIDUAL with whom you disagree, and not just a religion against which you are a raving bigot.
Since those personal opinions are "FAR superiror", in your mind, to those of an ancient religion, could you tell us HOW you know whose opinions are intelligent, accurate, wise, moist, and all other things you admire in opinions? I mean, what happens when people disagree? On what do you base YOUR opinion? And how do you know YOU aren't wrong?
In making that statement, Justice Stevens insults every person who supports the death penalty, every legislator that voted for it. He felt free to insult us, so why shouldn't we point out his deficiencies in return.
Yes, it is to his credit that he voted for the proper outcome of the case. Personally, I suspect his respect for precedent in this case is tactical, in hopes of staving off an overturning of Roe v. Wade.
Judges personal views should not enter into the equation.
Congress, not judges, represent society's standards with the legislation it passes.
The "conservative"position is NOT limited to a judge puting aside his personal views. It also concerns the REASONING behind his decision.
Please have another look at the implications of his reasoning. That is, if paragraphs aren't too much of a problem for you.
Initially, I just wondering what Justice Scalia was referring to. Assuming he's just referring to the Fifth and Fourteenth Amendments, as you and Q suggested, then I'm mostly just accusing him of a bit of overstatement and poor grammar.
Does it have any impact on the legal analysis? I don't know. I guess it might.
If there were an explicit Constitutional provision that said "Imposition of the death penalty does not violate the Constitution, and no provision of this Constitution shall be construed to invalidate the death penalty," I think the legal analysis might be a little different in at least some cases.
*titus32:4.17.2008 12:04pm
"Anderson, you neglect to mention Stevens' conclusion that the death penalty is unconstitutional. Are you translating this conclusion as "personal opinion"? I suppose that would be technically true, but contrary to customary usage. Can't people debate his conclusion that the death penalty is unconstitutional, especially when he recognizes that the issue will come up in future cases?"
Out of fairness, various groups convinced of Cantu's innocence have criticized this report, but their criticism appears to be procedural (e.g., the district attorney had a conflict) and not substantive.
I grant that "judgments" about what the Constitution means evolve. Again, the question is HOW DOES A GIVEN JUSTICE KNOW what those standards have become? I see two general lines of thought:
1) The Constitution means at any given time, on any given case or controversey, whatever 5= members of SCOTUS say it means.
In practical terms, that may be true. But that cannot be called "evolution." This is Intelligent Design.
2) SCOTUS Justices have some other means of knowing what the evolving standard now is.
If Number 2, what is that means of knowing?
It's difficult for us to debate it, given that he grounds his view in his own feelings rather than the law. Of course after nearly half a century on the SCOTUS, I doubt he even rembers the difference beteen the two.
What happens when an innocent person is executed? With our muddled and often corrupt and incompetent legal system this is bound to happen if it hasn't happened several times already. The number of innocent people freed from death row and for other serious crimes certainly shows that this is likely the case.
So, we shouldn't punish criminals because the system is imperfect? Your arguments apply just as well to any criminal sentence, not just capital ones. Lost time is no different that shortened time.
And what's the retribution model for the family of the wrongly executed? I haven't heard this dicussed much by the pro death penalty crowd. I would suggest formally and humanely executing the prosecutor and one family member from the family of the victim they were wrongly accused of killing. This is hyperbole, but not by much. If you're going to engage in retributive barbarity with the possibility of being completely mistaken, you better be prepared to face the consequences of your incompetent barbarity.
So we're holding prosecuters personally responsible for convictions? Why not judges and juries too? Or society? Let's pick someone at random from the phone book. The consesquences of our "retributive barbarity" is that the state gets to say where responsibility ends, even for errors in the judicial system. I'm good with that.
The alternative is no judicial system at all ... and if you want retributive barbarity, you ain't seen nothin' yet.
So, if some gets convicted, later released as wrongly convicted, and then confesses ... do we get to put you and one of your family members humanely to death?
Such squeemishness. So if we could achieve the impossible and have a criminal justice system that never makes a mistake, do you THEN support the death penalty? That's the real issue. The whole production about conviction errors is just a PR wedge by the anti-DP crowd. They really don't care ... it's just a way to undermine the basic concept.
And I object to being called an incompetent barbarian. I'm actually quite competent.
My take is that he is relying on stare decisis. The Court has said (even in constitutional cases, such as abortion cases) that stare decisis should restrain a Justice's conclusion that precedent is wrong.
Here is a link to that office's website. The Cantu link is immediately visible when you click onto that page.
Like I said.
Section I: he gives what he intends as helpful advice to the states to FACILITATE their executions.
Section II: he expresses skepticism about the quality of reasoning behind legislative enactments authorizing the death penalty. So now, VC commenters think that legislatures are stocked with deliberative geniuses? Your favorite branch of the federal government is now Congress? Or do you think that state legislators are even smarter?
Who is the _____ up above who said, "it's not about retribution, it's about killing people who deserve it"? Must be a state legislator.
Section III: for reasons that you may or may not find persuasive, but which are certainly stated plausibly and colorably, Stevens decides that, according to HIS OWN experience, the death penalty AS APPLIED violates the Eighth Amendment. N.b. especially his observation that the LAST thing a capital prosecutor wants is a jury of 12 randomly selected people.
Section IV: Stevens REJECTS reaching a constitutional holding on the basis of his own experience, and decides that he must rely on precedent.
That seems to me like a freakin' case study in how a "conservative" would want a jurist to rule, where the jurist's personal opinions and experience conflict with the case law.
Must be given legal weight? No. A Judge's personal preferences should have no weight in determining the meaning of words in the Constitution. The only determining factor of words in the Constitution should be their original understanding by the people that enacted them. I don't know if that's "textualism" or "originalism," but it's the only way to guarantee that the democratic process of enacting Constitutional Amendments doesn't become corrupt by the rule of judges over the elected. A judge who gives weight to his personal view of what constitutes "cruel" is a BAD JUDGE.
Does this happen? Yes. I'll acknowledge that it happens. It shouldn't. I'll also admit that, as they say, back in the day, this wasn't much of a problem because most judges understood that their personal preferences were irrelevant. But nowadays, you have kids graduating law school who like Bill Clinton think it's right to parse the meaning of the word "is", that words can be re-defined to suit the meaning of the speaker based on deconstructive analysis, and that the role of a judge is to engage in legal realism power politics. If you want a future where you give an inch on this process, you'll end up getting a mile.
If Stevens were originally going to dissent, then that would make sense of Scalia's "Purer expression cannot be found of the principle of rule by judicial fiat." But in fact, Stevens expressly rejects exactly that.
I wonder whether Nino was so in love with his rhetoric that he couldn't bear to take it down, after a Stevens flip? Time will tell, perhaps.
I still contend that Cantu is innocent. But as long as the state says he's guilty and no court is going to have an evidentiary hearing on the matter, the "fact" that a guilty person was executed will remain to defend the state's actions.
What would I have to show in order to prove that an innocent person was executed? Clearly I need more than to just show newly-discovered exculpatory evidence that the original jury didn't consider. I need some sort of official finding of innocence. I'll never have that. Courts dont normally issue advisory opinions, and even if they would, they wouldn't touch this with a ten foot pole. So I still contend the 'challenge' is disingenous.
Another person who pays all of the attention to the final outcome, none to the reasoning. Scalia was referring to Stevens' reasoning.
I don't agree with that interpretation. Stevens accepts the constitutionality of the death penalty here only because that issue wasn't before the court. I think he makes it pretty clear that if the case were about the DP itself and not just the method he would NOT rely on existing precedent.
I'm not sure this is true. You may be projecting the experience of a couple hundred years of judicial review onto the drafters. How jurisprudence would develop in later years may not have been foreseen by those working at the beginning of the first democratic republic.
I find it entirely plausible that the drafters (or some portion of the Congress that approved it) thought it perfectly clear that the 8th prohibited what they considered cruel and unusual from English law and nothing else. I've read some quotes from Jefferson that might point to an evolving constitution but not enough to be conclusive about the 3rd president's opinion, let alone everyone else involved.
I'm much more interested in the theoretical issue (are Constitutional presuppositions conclusively binding when they conflict with the explicit text?) than in the death penalty issue, because any possible problems with the death penalty strike me as trivial compared to the fact that our prisons are barbaric hellholes. The fact that gang rape, sex slavery, abuse by guards, and the like are considered Constitutional even though they are much crueler than the punishments considered "cruel and unusual" and are administered for reasons having nothing to do with the crime the prisoner was convicted of is just preposterous.
This comment is stupid, erroneous, asinine, pigheaded, prejudicial to other persons and bigoted.
You're simply insulting the intelligence of the framers of the Eighth Amendment, who knew perfectly well that the use of a vague and subjective textual standard like "cruel and unusual" would invite--indeed, necessitate-- an application of the judge's own understanding of those terms to the law. There's simply no other way to read those words, and more to the point, both the text and the "original understanding," to the extent that we have any way of discerning such a thing, seem to demand that approach. Do you think the framers were unaware of the fact that members of the judicial branch would necessarily be compelled to apply their own understanding of "cruelty" to the application of the Eighth Amendment? The framers weren't idiots; they could have been more specific had they chosen to do so, and they were well aware of the fact that by incorporating such an abstract principle into the constitutional fabric they were delegating much of the development of Eighth Amendment jurisprudence to the personal convictions of future generations of jurists-- and entrusting those jurists to apply that abstract principle prudently and in good faith. Again, perhaps the framers deserve some criticism for leaving so much interpretive space available, but I can't see a basis for criticizing Justice Stevens for discharging the duty imposed upon him to interpret the text of the Constitution in good faith.
This highlights the biggest reason I can no longer support the death penalty as it now exists. I think the battle for principled, rational application of it has already been lost. The American judiciary has proven that it is incapable of administering this level of justice in any way that makes sense. The result is that those who truly deserve to die a painful death are likely as not to be spared the penalty at all. The bottom like likelihood that the penalty will be imposed on those who deserve it or don't has gone to the level of coin-flipping.
You may be right; I'll concede that my view of the framers' understanding of what they were doing is based largely on my own assumptions-- as much of the debate about original intent often tends to be. I hope they weren't so naive as to misunderstand the risk inherent in applying such a vague and subjective standard as "cruel and unusual" if they really didn't intend for an "evolving standards of decency" test to develop. Still, I think the textual argument holds even if the originalist one does not.
This statement could equally be made for people who serve life sentences and die in jail. Those too include innocent people for which the exculpatory evidence is never found.
If this is an argument against anything, it's an argument against all punishment.
(And don't say "well, the death penalty can't be reversed, but we can let someone out of jail. That only happens if the exculpatory evidence is found, and this is about cases where it is not.)
This isn't my field, but BruceM and ratel have provided responses that were on point. The significant amount of people getting released from death row is evidence enough for me, especially since the rate at which this is occurring has increased since DNA evidence has become available. Imprisoning people who are innocent is horrible enough, the prospect of executing people who are innocent is unconscionable.
PatHMV said:
FYI to the guy who asked, the 14th Amendment also explicitly permits the death penalty: "nor shall any state deprive any person of life, liberty, or property, without due process of law;"
The necessary corollary to that is that the state MAY deprive a person of life WITH due process of law.
Actually, as a matter of formal logic, that isn't true. It would only be correct if there were no other requirements, but since there are, they all have to be met before the death penalty is permissible. (I.e. the requirements are independent of each other, and additive.)
The structure is essentially:
No death penalty:
- If it is cruel, or
- If it is unusual, or
- If there has been a failure of due process.
Turning that around yield:
Yes death penalty:
- If it is not cruel, and
- If it is not unusual, and
- If there has not been a failure of due process.
(Whether cruel and unusual is one criterion or two is not the point here, my point is how the "or" in the first series becomes and "and" in the second.)
My point is that someone claiming actual innocence should carry the burden of proving it. In other words, a jury has already been convinced beyond a reasonable doubt of a person's guilt--those who want to undermine that verdict should carry the heavy burden of overcoming that verdict.
With respect to Ruben Cantu, it is interesting that on direct appeal, an issue was whether he could testify at his penalty hearing regarding another bad act and not be cross-examined about the murder for which he stood convicted. That, in itself, is rather an odd position to take at trial for someone who is "actually innocent."
Of course JPS is able to determine whether a given punishment is cruel as a purely emperical matter.
Even if they were completely naive (from the modern perspective) it's hard to fault those who were trying to invent and codify a new system of government for not foreseeing all possibilities. Overall the Framers did a great job and deserve our respect and admiration. But they were mere mortals.
I'm always open to change my mind with additional facts, but you can't get around the fact that the EU Constitution was repeatedly voted down. And now with the exception of Ireland, they don't get a chance to vote on the treaty.
The blog of an EU Commissioner hardly seems like an objective forum to get the facts about the Treaty of Lisbon. I simply don't trust the EU organs to provide an uncensored forum.
"It is flat out nonsense to say that lethal injection is cruel AND unusual." That is not a legal argument.
The only way your analysis works is if we assume that the Framers actually intended "cruel and unusual" to be a sliding scale referencing current social thinking by a political minority of the nation (because the social thinking of a political majority of the nation is what ends up being enacted into law through the democratic process).
But if that were the case, the Framers were exceedingly circumspect in spelling that out.
LOL. You must be joking. You HAVE heard of O'Connor, haven't you?
That is not a legal argument.
Sue me.
Please quote the words from Stevens' opinion where he says that. Thanks!
Oh good grief. Yet another person who spent a small fortune in law school for the purpose of parsing ancient texts rather than participating in the pursuit of justice and personal liberty.
Camus said it was the job of thinking people not to be on the side of the executioners. But he wasn't on the East Coast in the late 18th century Philadelphia.
Too bad for us.