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Judge Boyce Martin Makes Another Case Against the Death Penalty:
See his concurring opinion here. Notably, Judge Martin does not frame his opposition to capital punishment as a matter of constitutional law, as he has done before. Rather, in this case he expresses his view that "our scarce public resources can be put to better use" as a matter of policy, and that he believes states legislatures should not authorize the death penalty on the basis of the death penalty's high cost alone. (Hat tip: Doug Berman)
Commodore:
Like Justice Stevens, Judge Martin is being highly disingenuous when he criticizes the imposition of the death penalty on grounds of its high financial cost, when the only reason the cost is so high is that judges like Judge Martin and Justice Stevens have made it so.
4.14.2009 5:24pm
Thorley Winston (mail) (www):
What's the point of this other than to show that for the better part of 30 years, Judge Martin has been using his judgeship as a forum for his own personal views against capital punishment? If I didn't think Obama would be likely to appoint someone worse, I'd say he should resign and run for the legislature rather than pretend that he's acting as a judge.
4.14.2009 5:24pm
FantasiaWHT:
That's always been my complaint about the death penalty. It's so rare, and it takes so long, that it's hardly any deterrent over and above incarceration.

However, my solution is that the procedures need to be modified so that it occurs relatively quickly and inexpensively.
4.14.2009 5:24pm
ruuffles (mail) (www):

I'd say he should resign and run for the legislature rather than pretend that he's acting as a judge.

Clarence Thomas did the same in his dissent in Lawrence v Texas, saying he would have voted to overturn the law in question.
4.14.2009 5:25pm
ruuffles (mail) (www):
I should add that since I expect Obama would appoint someone much better, Thomas should also resign and run for the legislature.
4.14.2009 5:28pm
Thorley Winston (mail) (www):
Like Justice Stevens, Judge Martin is being highly disingenuous when he criticizes the imposition of the death penalty on grounds of its high financial cost, when the only reason the cost is so high is that judges like Judge Martin and Justice Stevens have made it so.


I can't say that I fully agree with that, but reading the opinion, I agree that the system allows too many frivolous appeals, at least in the sentencing phase. Whether the jury heard that the murderer was abused as a child, abused drugs, or suffered a head injury had no bearing on his guilt and it should have none on the severity of his sentence.

Moreover, if we ever did abolish capital punishment, I have no doubt that pretty much the same people who agitated for ending capital punishment would do the same for life without parole using pretty much the same arguments.
4.14.2009 5:31pm
rick.felt:
Clarence Thomas did the same in his dissent in Lawrence v Texas, saying he would have voted to overturn the law in question.

Thomas was: (1) quoting Potter Stewart, and (2) explaining that if he followed his personal legislative preference on the issue of the legality of the particular form of piracy at issue in the case at bar, rather than voting as he believed the Constitution required, his vote would be different.
4.14.2009 5:32pm
Thorley Winston (mail) (www):
Clarence Thomas did the same in his dissent in Lawrence v Texas, saying he would have voted to overturn the law in question.


No, the two aren't close to being the same. Martin used his concurring opinion* for making a purely policy-based argument for why he thinks capital punishment should be abolished that had no bearing on the legal issues before the court. Thomas, in his dissent in Lawrence, focused on whether it was the role of the legislature or the courts to change laws criminalizing sodomy, which went directly to the issue of judicial deference to the legislative branch.

* Which makes what he did all the more obnoxious.
4.14.2009 5:38pm
IPLawyer:
Like Justice Stevens, Judge Martin is being highly disingenuous when he criticizes the imposition of the death penalty on grounds of its high financial cost, when the only reason the cost is so high is that judges like Judge Martin and Justice Stevens have made it so.



Do you suggest that the price should be reduced by reducing a defendant's appellate options? If so, you'd be satisfying the cost critique by exacerbating the likelihood an innocent person could be put to death...which is ultimately what most people who deplore the death penalty are concerned about.
4.14.2009 5:39pm
ruuffles (mail) (www):

Thomas was: (1) quoting Potter Stewart, and (2) explaining that if he followed his personal legislative preference on the issue of the legality of the particular form of piracy at issue in the case at bar, rather than voting as he believed the Constitution required, his vote would be different.

How is that different from Martin? I skimmed his concurrence and he did not argue the unconstitutionality of the death penalty. In a long winded sort of way, he was saying that if he were on the legislature, he would vote to abolish it.
4.14.2009 5:40pm
ruuffles (mail) (www):

Martin used his concurring opinion* for making a purely policy-based argument for why he thinks capital punishment should be abolished that had no bearing on the legal issues before the court. Thomas, in his dissent in Lawrence, focused on whether it was the role of the legislature or the courts to change laws criminalizing sodomy, which went directly to the issue of judicial deference to the legislative branch.

Since Martin did not dissent, his policy argument is the same as Thomas's argument. Martin deferred to the legislative branch but said he thought the cost was too high, just as Thomas said it was "uncommonly silly."
4.14.2009 5:42pm
Joseph Slater (mail):
I'm no expert on death penalty law or practice. But in response to the "we should make it a lot quicker and easier to use the deaht penalty" posts, aren't there some inherent reasons why we should be very careful before we authorize the state to do something as irrevocable as killing somebody? In other words, if any area of law screams out for extra protections, I would think it would be this one.
4.14.2009 5:46pm
Joseph Slater (mail):
"death" not "deaht," obviously.
4.14.2009 5:46pm
TerrencePhilip:
Accordingly, I join Justice Stevens in calling for "a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces."

Fascinating- perhaps some statistical studies can be done to show the effect the death penalty has on the murder rate in Texas border towns on the US side, vs the murder rate on the Mexico side? You think that's what he has in mind?
4.14.2009 5:51pm
krs:
ruufles, you're right that Justice Thomas expressed a policy view about, but I don't think that's what the commenters are complaining about with Judge Martin.

Justice Thomas was making the point that the question whether something is unconstitutional is different from the question whether it's normatively desirable, which is a fair point to make in an opinion as it explains the legal principle underlying his vote.

Judge Martin's view of the case before him is that the petitioner did not prove that his counsel was unconstitutionally ineffective. The rest of his opinion has almost no relevance to his view of the case. It's an op-ed about the practical value of the death penalty. It could have been published separately with no changes whatsoever, or it could have been appended to any separate opinion of his in any case involving the death penalty... it looks like a great foreword to a law review symposium about anti-death penalty scholarship. It's as if he's had this sitting on his hard drive for months, polishing it and waiting for a venue to publish it, and he just decided that he'd waited too long and this particular opinion would have to do. Five more months, and he'd no longer be in his "thirtieth year as a judge on this Court, but rather his thirty-first, and his opening sentence wouldn't have the "oomph" that a nice round number like 30 provides.

It's pure soapbox lecturing and nothing else and has no place in a judicial opinion.

Also, it's more than a little rich for a federal judge to point out how expensive the death penalty process has become. I wonder if he's noticed that in his 30 years as a judge, or he's just always assumed that more procedural requirements are always better in criminal cases and no cost is too great to bear to avoid punishing the innocent... or the guilty who shouldn't have lost their motions in limine...
4.14.2009 5:54pm
Hedberg:
Yeah, it costs a lot of money for the state to kill someone in our system. I'm sure that China spends much less. As a Russian might say, China probably spends many times less.

"Moreover, if we ever did abolish capital punishment, I have no doubt that pretty much the same people who agitated for ending capital punishment would do the same for life without parole using pretty much the same arguments."

There are many states which do not have capital punishment; probably a couple which have never had it. Are there a lot of people in those states arguing that life without parole should be abolished because it costs too much? Do they argue that life without parole is too risky of a punishment because of the possibility of wrongful conviction? There may be a couple dopes somewhere who would argue that life without parole is too harsh of a punishment, but it seems very unlikely for such an argument to gain many adherents in this country. Am I wrong about that? Has there ever been anywhere in the United States a court decision in which it was declared that life without parole as a punishment for murder violates the 8th amendment?
4.14.2009 6:00pm
David Welker (www):

Whether the jury heard that the murderer was abused as a child, abused drugs, or suffered a head injury had no bearing on his guilt and it should have none on the severity of his sentence.


Most normal people (i.e. not you) want to know about the background of the murderer before deciding on the death penalty.

It seems to me that it is relevant if, for example, someone lashed out and killed a family member after years of sexual abuse by that individual in contrast to a situation where the murder was simply for money. In general, a jury should know about the life circumstances of the defendant so they can make an informed decision.

You are the first person I have heard who actually advocates for an uninformed death penalty. I suppose for you, ignorance is bliss. Is this how you make important decisions in your person life?
4.14.2009 6:02pm
krs:
I just read Judge Martin's missive from October 2005.

Interesting... it follows the same format--after explaining his views of the case actually in front of him, he has a line of asterisks, and then an irrelevant op-ed piece that opens with a statement about how long he's been on the court (25 years at that point).

Stay tuned for chapter 3 in about 4-5 years, I guess.
4.14.2009 6:03pm
Dave N (mail):
I will give Judge Martin credit for concurring rather than dissenting in this case--I am still awaiting evidence of a single 9th Circuit death penalty case where Judge Reinhardt voted to affirm both the conviction and death sentence.

That said, I found two of Judge Martin's comments troubling. His Footnote 6 contrasts all felony cases (95% settling) with capital cases (80% going to trial according to Kozinski). I suspect that the 5% figure of cases going to trial rises significantly when limited to "major felonies," particularly rape, murder, and other crimes of violence. That has certainly been my professional experience.

Second, he writes, "[E]xperience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases." I may be cynical, but it seems that reviewing Courts (particularly the 9th Circuit) are willing to find error in a capital case than a non-capital case (ie., if the prisoner was not sentenced to death, the court would not find error).

Additionally, as Justice Scalia noted last year, "Justice STEVENS' final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death-though not a risk that Justice STEVENS can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system." Baze v. Reese, 128 S.Ct. 1520, 1554 (2008) (Scalia, J., concurring).

This mirrors Justice Scalia's comments from two years earlier in Kansas v. Marsh, 548 U.S. 163, 188 (2006) (Scalia, J., concurring):
It should be noted at the outset that the dissent does not discuss a single case-not one-in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.
I do, however, agree with Judge Martin in one respect. The time delays do frustrate the system--and justice delayed often is justice denied.
4.14.2009 6:05pm
Props:
Per Martin, we should scrap the death penalty because it costs too much to administer, and we're short on money. I think we should hold Judge Martin to his proposal and use economic cost-benefit analyses to determine whether we keep or abandon other programs. For example, we should scrap Medicare-Medicaid and other entitlement programs as they cost far more than we can afford in these troubled economic times.
4.14.2009 6:07pm
D.A.:
Scalia's comments are dopey.
In just how many cases of an executed defendant are there post-execution quests to prove the condemned man's innocence?
And how much incentive is there for the killing State to undertake to provide a post-execution acquittal?
4.14.2009 6:24pm
My Middle Name Is Ralph:

"Justice STEVENS' final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death-though not a risk that Justice STEVENS can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system."


This seems like a somewhat disengenuous argument to me. There are certainly many cases where the innocence or guilt of the person executed was in question. What evidence would be sufficient for Scalia to admit that an innocent person had been executed? If clear cut evidence of innocence comes to light before an execution, the person is not executed. This has happened repeatedly. But, it seems that once someone has been executed for a crime, there is very little incentive or opportunity to prove his innocence.
4.14.2009 6:24pm
pete (mail) (www):
My main opposition to the death penalty is that it costs too much because of all the appeals and has become so rare and takes so long that it is not much of a ditterent in most states and the money could be more effectively spent somewhere else. Issues about how competent the defense/honest the prosecuters are in these cases is also a legitimate criticism and a large part of the reason for the high costs ion the first place.

I have no moral problem with the death penalty for murder and for many other violent felonies. I am wondering how small of a minority holds this particular position: no problem with death penalty in principal, but thinks it is currently not cost efficient enough too justify.
4.14.2009 6:25pm
pintler:

If so, you'd be satisfying the cost critique by exacerbating the likelihood an innocent person could be put to death...which is ultimately what most people who deplore the death penalty are concerned about.


I would submit that death penalty opponents seem to exert a great deal of effort challenging the methods of execution, even in cases where there doesn't seem to be any claim of innocence.

I wish both sided would compromise - the pro-capital punishment folks would agree, e.g., to reform crime labs, implement better eyewitness ID procedures, tape interrogations, etc, which would reduce false convictions in all cases, not just capital ones. In return, death penalty opponents could forswear mounting a 20 year scorched earth defense in every case even when guilt is not debated, at least until they get 51% or the voters to agree.
4.14.2009 6:26pm
mga (mail):
Judge Martin's views may or may not be appropriate for a judicial opinion, but there's no doubt he's right on the merits. And the costs of the death penalty are not just financial, though it is much less expensive to warehouse someone for the rest of his natural life than to execute him.

The emotional toll that capital punishment takes on everyone involved in the process is enormous, especially including the family of the victim. I had the great good fortune (not!) to be appointed to represent an inmate on death row. After five gruelling years of litigation, the Eighth Circuit set aside the sentence. The local newspaper, which is opposed to capital punishment, published an editorial a few days later praising me by name. Later that morning, I got a voice mail from the widow of the victim, who most understandably had a very different view of my success than I did. Had my client gotten life without probation or parole, the poor woman could have gotten along with the rest of her life instead of having the horror of that day when her husband was gunned down flung back in her face more than a decade later.
4.14.2009 6:27pm
einhverfr (mail) (www):
Policy-wise: Keep the death penalty. It is more humane than most of the alternatives regarding people we can never release again. Also don't have suicide watches on death row inmates. If they want to commit suicide after being sentenced to die, great. It saves us money and saves them dignity.

Constitutionally: Of course death penalty cases should be held to higher review.

On wrongful convictions: Wired had an interesting article a while ago about arson and arson/homicide forensic views changing with a strong warning that many of the folks convicted of these crimes might not have been guilty. Such folks dont get a new trial when science disputes evidence originally held against them. "Wrongfully convicted" does not hence mean "innocent" as one can be innocent of the crime and still be convicted properly according to due process.
4.14.2009 6:30pm
pete (mail) (www):

But, it seems that once someone has been executed for a crime, there is very little incentive or opportunity to prove his innocence.


Death penalty opponents have tried to exonerate executed people before. There was the recent case of a man in the last few years who had claimed innocence up to his death, where posthumous DNA evidence proved his guilt, but I forget the name.
4.14.2009 6:37pm
Anderson (mail):
An Article III judge? Expressing policy opinions? Making recommendations to the Legislature?

Quick, Commissioner Gordon -- light the Kerrsignal!

Whether the jury heard that the murderer was abused as a child, abused drugs, or suffered a head injury had no bearing on his guilt and it should have none on the severity of his sentence.

There is an implicit theory of sentencing here, but it doesn't seem to be a universally approved one.
4.14.2009 6:38pm
New Pseudonym:
Judges who draw out the death penalty appeal process and then attack it on a cost/benefit basis are like the proverbial orphan pleading for mercy.


It seems to me that it is relevant if, for example, someone lashed out and killed a family member after years of sexual abuse by that individual


But in that case, it should have been introcuced during the trail of the case, since it goes to the mens rea. Death penalty appeals are primarily dilatory, in any case. That's why so many are filed as late as possible on the date set for execution.
4.14.2009 6:42pm
therut (mail):
I find it hard to believe that he is really concerned about the cost. I mean look at the money our government is spending today on welfare etc. None is constututionally a mandated power of the STATE given by WE THE PEOPLE. Now running our courts and the the constututionally of the death penalty is written in the Conitutuion. And this guy is a JUDGE. Give me a break. The cost of the death penality does not even come close to being a problem. Now the welfare State is another matter. If he wants to save money there are many things unconstitutional he could grip about.
4.14.2009 6:46pm
pete (mail) (www):
Here is the case I was thinking of: Roger Keith Coleman


DNA tests have confirmed the guilt of Roger Keith Coleman, whose dying claim of innocence had lived on past his 1992 execution.

The results were announced Thursday by Gov. Mark Warner, who took the unprecedented step of ordering the tests after years of arguments by Coleman's supporters that he was innocent.

"We have sought the truth using DNA technology not available at the time the commonwealth carried out the ultimate criminal sanction," Warner said. "The confirmation that Roger Coleman's DNA was present [at the crime scene] reaffirms the verdict and the sanction."

Coleman was convicted in 1982 of killing and raping his 19-year-old sister-in-law, Wanda McCoy, in her Grundy home. He was executed 10 years later, maintaining his innocence from the electric chair.
4.14.2009 6:47pm
pete (mail) (www):
And here is a similar case from Britain where a person executed years ago for rape and murder had his guilt confirmed by DNA evidence after decades of his supporteers claiming he was innocent.
4.14.2009 6:58pm
Clayton E. Cramer (mail) (www):

But in response to the "we should make it a lot quicker and easier to use the deaht penalty" posts, aren't there some inherent reasons why we should be very careful before we authorize the state to do something as irrevocable as killing somebody?
1. I'm opposed to the death penalty.

2. There's a difference between "very careful" and the current absurd level of dotting the i's and crossing the t's. More importantly, if the Constitution required the truly extraordinary levels of due process that are now the norm in death penalty cases--how is it that no one noticed it in the first couple of centuries? Executions used to be much more common, and often completed within 2-3 years of the original crime.

3. There are strong arguments against the death penalty, especially the lack of an undo feature. But that's not the same as unconstitutional.
4.14.2009 7:06pm
Clayton E. Cramer (mail) (www):

I would submit that death penalty opponents seem to exert a great deal of effort challenging the methods of execution, even in cases where there doesn't seem to be any claim of innocence.
One of the many reasons that I detest the ACLU is the absurd abuses of the process that they have engaged in with respect to the death penalty. Dispute whether a person received adequate counsel: fine. Dispute questions about biased jury: fine. Dispute questions about the reliability of eyewitneses, or dishonesty by police or prosecutors: fine. Make an argument to the voters that the death penalty is a bad idea, or expensive (even though the ACLU is a big part of why it is expensive): fine.

But when you make the argument that the drugs used to render a prisoner unconscious before stopping his heart haven't been approved by the FDA? That's someone who has completely abandoned any pretense that this is about law or the constitutionality of a law.

If you want to argue that a particular method of capital punishment is "cruel or unusual," you have to ask: compared to what? Compared to the methods that the Framers had no problem with?
4.14.2009 7:15pm
Dave N (mail):
My Middle Name is Ralph,

Justice Scalia's Marsh concurrence is a much broader critique of capital punishment opponents than his Baze concurrence. I am guessing that because Marsh pre-dates Baze, Justice Scalia saw no reason to repeat his argument.
4.14.2009 7:21pm
OrinKerr:
Thorley Winston:

What's the point of this other than to show that for the better part of 30 years, Judge Martin has been using his judgeship as a forum for his own personal views against capital punishment?
I suppose the question is, what's the point of your comment?

Mga writes:
Judge Martin's views may or may not be appropriate for a judicial opinion, but there's no doubt he's right on the merits.
I suppose "there is no doubt he's right" means "I strongly agree with him"? I don't know how to reason to truths on contested questions of justice, and I suppose I would be surprised if you figured out a way.

Anderson:
An Article III judge? Expressing policy opinions? Making recommendations to the Legislature?

Quick, Commissioner Gordon -- light the Kerrsignal!
I suppose if I must be known for wanting judges to do their jobs, do them well, and not forget the branch of government to which they belong, it is a burden I must bear.
4.14.2009 7:22pm
Andy Freeman (mail):
> If so, you'd be satisfying the cost critique by exacerbating the likelihood an innocent person could be put to death...which is ultimately what most people who deplore the death penalty are concerned about.

Innocent people die because of imprisonment every day. Since said "most people" don't concern themselves much, if at all, with these deaths, I think that death of innocents is not what said "most people" concerned about, let alone ultimately.
4.14.2009 7:31pm
Calderon:
Joseph Slater said:


I'm no expert on death penalty law or practice. But in response to the "we should make it a lot quicker and easier to use the death penalty" posts, aren't there some inherent reasons why we should be very careful before we authorize the state to do something as irrevocable as killing somebody? In other words, if any area of law screams out for extra protections, I would think it would be this one.


It's not clear that the "irrevocability" of the death penalty is different in kind from the irrecovability of a prison sentence. If you're sentenced to life in prison but are shown innocent after 20 years of your sentence, you've irrevocably lost 20 years of your life. If you're sentenced to death and that sentence actually is carried out, you may lose more years, but that's a difference in amount rather than a categorical difference. Thus, I don't see the basis for "extra protections" for the death penalty versus life in prison.

I generally agree with those who say this is a judicially made problem, in two senses. The first is that Brennan, Marshall, Douglas, etc., when they could keep capital punishment abolished decided to erect as many rules as possible to obstruct its use so it would either die out on its own or be susceptible to a future decision prohibiting it. (Notably, conservative legislatures try to do the same thing with abortion, but with much less success) The second is simply the mental energy individual judges put into death penalty cases and the treatment they get. I was always ... disconcerted when clerking that judges wouldn't give a second thought to affirming sentences of 20 years or even life in prison for drug trafficking crimes but would agonize over death penalty sentences for those who committed multiple murders or rape-murders.

Also, while the general trend may seem to be away from capital punishment, technological advances may actually help it to remain. With DNA testing and other advances, if we people have a near certainty that someone has committed a terrible crime, there may be greater willingness to put him/her to death since there's less likelihood of being wrong. From a policy matter, if I were a governor / legislator, etc. in favor of the death penalty I'd require that it only be used when there's DNA evidence or some other kind of similarly powerful evidence to make attacks on the verdicts less likely to be successful and to deprive death penalty opponents of being able to argue that we can't know if we have the right person.
4.14.2009 7:52pm
TerrencePhilip:
The pomposity and certainty of judicial punditry like Judge Martin's, always reminds me of Woodward's bit in The Brethren about the discussions among the Justices about Fuhrman. It's usually good for a chuckle (link):

"Though technically not abolishing the death penalty, Stewart felt that the moral authority of such a Court pronouncement would end the issue. He was fairly sure that the states would not enact the barbaric mandatory laws. The Court would never again have to face the death penalty."

The self-regard of our Guardians seems to know no bounds; today, Justice Kennedy is the primary practitioner of this kind of moral omniscience.
4.14.2009 8:22pm
hawkins:

pretty much the same people who agitated for ending capital punishment would do the same for life without parole using pretty much the same arguments


Isnt the primary objection to the death penalty the finality of it all - the fact that it cannot be reversed if the convict is later exonerated? Life in prison does not raise the same concerns.
4.14.2009 8:29pm
Anderson (mail):
I suppose if I must be known for wanting judges to do their jobs, do them well, and not forget the branch of government to which they belong, it is a burden I must bear.

Sort of the "Dark Knight" of the legal profession, then. But without the cool gadgets?

... What about opinions expressed outside of, well, opinions? Like CJ Roberts hitting up the Congress for higher judicial salaries? What if Judge Martin had written an op-ed for the local paper?
4.14.2009 9:01pm
Brian G (mail) (www):
Any argument that the death penalty is unconstitutional is disingenuous on its face and I do not want to hear it. Now, to argue that it is bad policy is perfectly fine.
4.14.2009 9:02pm
Matt E:

pretty much the same people who agitated for ending capital punishment would do the same for life without parole using pretty much the same arguments



Isnt the primary objection to the death penalty the finality of it all - the fact that it cannot be reversed if the convict is later exonerated? Life in prison does not raise the same concerns.



While I do believe thats how many people view it, I think there could reasonably be a fear of a slippery slope linked to an evolving standard of what is appropriate punishment. I believe several European countries have placed maximum sentences for murder at 20 years, but please correct me if I'm wrong. If I'm right I do think it is a legitimate concern that if we go down this road it will only be several years before people start challenging LWOP as an eighth amendment violation.
4.14.2009 9:10pm
pintler:

Isnt the primary objection to the death penalty the finality of it all - the fact that it cannot be reversed if the convict is later exonerated? Life in prison does not raise the same concerns.


Your wrongful conviction and life sentence are pretty final if all the lawyers who might work to overturn your conviction, or could have worked to prevent it, are arguing over a death penalty case where guilt is not disputed.
4.14.2009 9:20pm
hawkins:

I think there could reasonably be a fear of a slippery slope


I dont deal in slippery slopes. Draw the line wherever its most appropriate.
4.14.2009 10:01pm
Simon Dodd (mail) (www):
Ralph:
If clear cut evidence of innocence comes to light before an execution, the person is not executed. This has happened repeatedly.
Why doesn't that strengthen the case that the system works just fine, particularly when combined with the absence of examples where innocence was proven after execution? Speaking of which, D.A. said:
Scalia's comments are dopey.
In just how many cases of an executed defendant are there post-execution quests to prove the condemned man's innocence?
And how much incentive is there for the killing State to undertake to provide a post-execution acquittal?
So you don't have any cases meeting Scalia's challenge to bring forward either, then? I infer that from your failure to point to any such example. Absent strong incentives to do otherwise, people usually select the strongest available argument, so, if you had an example of "a person executed for a crime he did not commit in the current American system," that would be your counterargument, because it would be the strongest possible argument. Indeed, it woul entirely and irresistably refute Scalia's point. Why isn't your resort to the far weaker counterposition of tacit burden-shifting telling?
4.14.2009 10:31pm
David M. Nieporent (www):
Do you suggest that the price should be reduced by reducing a defendant's appellate options? If so, you'd be satisfying the cost critique by exacerbating the likelihood an innocent person could be put to death...which is ultimately what most people who deplore the death penalty are concerned about.
Very little about death penalty practice has to do with "innocence," and this case illustrates that perfectly.

Wiles was guilty. There was no doubt he was guilty. This was about the sentencing phase, and the claim existed only because, with nothing to lose, Wiles could throw everything at the wall in the desperate hope that two sympathetic judges would find an excuse to vacate his sentence. It's one thing to argue that a defendant can present anything he wants in mitigation, regardless of how silly it is. It's another to argue that a defense counsel is required to present every silly claim to the sentencing panel, such that an ineffective assistance claim might lie if he doesn't. Even under the AEDPA, he was getting multiple bites at the apple for no good reason.
4.14.2009 10:57pm
David M. Nieporent (www):
Isnt the primary objection to the death penalty the finality of it all - the fact that it cannot be reversed if the convict is later exonerated? Life in prison does not raise the same concerns.
No, the primary objection is not the finality of it; the primary objection is that it offends some people's sense of morality. The fact that it cannot be reversed is a practical consideration, but it's not why death penalty opponents are death penalty opponents; they object to its imposition on the clearly guilty as well as the questionably so.
4.14.2009 11:18pm
hawkins:

No, the primary objection is not the finality of it; the primary objection is that it offends some people's sense of morality. The fact that it cannot be reversed is a practical consideration, but it's not why death penalty opponents are death penalty opponents; they object to its imposition on the clearly guilty as well as the questionably so.


You, of course, are likely correct. My primary objection is the finality of it. I entirely believe that some people deserve to die. However, given the fact that errors are inevitable, I dont believe the value gained by killing those people justifies the risk of killing innocent ones.
4.15.2009 12:22am
David Hecht (mail):
As to the argument that the DP should be abolished becasue it's better to let 10 (100? 1000???) guilty men go free than execute one innocent: what's the actual prudential threshold? ISTM that the logic of this position is that we should never execute anyone, and that there are no consequences if we don't.

BUT, as it turns out, there ARE consequences: studies have shown (the actual numbers vary) that between several dozen and several hundred people are killed each year by murderers who might, in a less fastidious age, have been executed (it is true that some of these killings take place in the prison system, but the principle remains).

ISTM that those who argue against the DP for instrumental reasons of prudence generally have not factored in these "innocent" deaths into their thinking (I use the word in quotes since presumably inmates who are killed by their fellow-inmates were guilty of something).

But if a convicted murderer is sentenced to a prison term rather than executed, and is later released into the general population and kills again, who is to blame? Do those who argued against his execution not carry at least part of the moral onus?
4.15.2009 12:28am
Ben S. (mail):

But when you make the argument that the drugs used to render a prisoner unconscious before stopping his heart haven't been approved by the FDA? That's someone who has completely abandoned any pretense that this is about law or the constitutionality of a law.

If you want to argue that a particular method of capital punishment is "cruel or unusual," you have to ask: compared to what? Compared to the methods that the Framers had no problem with?


In that case, don't read State v. Mata, 275 Neb. 1 (2008).
4.15.2009 1:12am
NickM (mail) (www):
The studies showing the death penalty to be "more expensive" suffer from the bias that they have not followed the prison lifers to the end of their lives - many of them will develop geriatric conditions which will be very expensive for the taxpayers to treat.

Nick
4.15.2009 4:56am
Public_Defender (mail):

I suppose if I must be known for wanting judges to do their jobs, do them well, and not forget the branch of government to which they belong, it is a burden I must bear.

I understand your point, even though I disagree with it. But it would have been more fair to Judge Martin if your post had made it clear that the judge actually enforced the death penalty, but then asked the legislature to change the law. Your post implied (although I'm sure it was unintentional) that the judge had imposed his policy preference against the death penalty on this case.
4.15.2009 6:01am
Clayton E. Cramer (mail) (www):

In that case, don't read State v. Mata, 275 Neb. 1 (2008).
I'm not having much luck finding the decision, but if you want to argue that electrocution wasn't something that the Framers contemplated, I won't argue with you. (Remember: I'm not a supporter of the death penalty.) But hanging was certainly widely used at the time, and considered adequately humane. (If badly done, of course, it could be quite inhumane; part of why Michigan has never had a death penalty. There was a hanging shortly before statehood that made a very bad impression on all who attended.) Lethal injection is, if anything, far more humane than hanging.
4.15.2009 8:50am
Daniel M. Roche (mail):

Here is the case I was thinking of: Roger Keith Coleman

DNA tests have confirmed the guilt of Roger Keith Coleman, whose dying claim of innocence had lived on past his 1992 execution.

The results were announced Thursday by Gov. Mark Warner, who took the unprecedented step of ordering the tests after years of arguments by Coleman's supporters that he was innocent.

"We have sought the truth using DNA technology not available at the time the commonwealth carried out the ultimate criminal sanction," Warner said. "The confirmation that Roger Coleman's DNA was present [at the crime scene] reaffirms the verdict and the sanction."

Coleman was convicted in 1982 of killing and raping his 19-year-old sister-in-law, Wanda McCoy, in her Grundy home. He was executed 10 years later, maintaining his innocence from the electric chair.


My criminal procedure professor assigned a book about Coleman entitled "May God Have Mercy" as part of our course reading materials. I'm not entirely sure what the purpose was, but I found it pretty funny when the inculpatory DNA evidence came out at the end of the semester. I'd be surprised if that book was still assigned reading.
4.15.2009 11:01am
Sagar:
Anderson:...
What about opinions expressed outside of, well, opinions? Like CJ Roberts hitting up the Congress for higher judicial salaries? What if Judge Martin had written an op-ed for the local paper?

Prof. Kerr had similar objection to Ginsburg telling the congress (to pass laws) in her legal opinions. i don't think he would have a problem if a judge wrote an op-ed. i am sure you can see the difference.

otoh, nice phrase 'dark knight of the legal profession'! need to Google Orin's picture, to imagine him with a brooding face, in a cape and all ...
4.15.2009 2:00pm
Visitor Again:
Why should we want to deprive our federal and state legislators and the general public of the thoughts of an experienced federal judge about serious problems with capital punishment? Or is the objection only that the judge makes his thoughts known in what is essentially dicta in a judicial opinion? Would the same objection be made were the judge to express the same thoughts in testimony before a legislative body, in a newspaper op-ed piece or in a law review article?

This judge recognizes the problems are ones of policy for the legislature to consider. He does not permit his views on policy matters to influence the manner in which he would dispose of the case before him. He merely raises some policy problems he sees and suggests legislators might do well to look into them.

I fail to see what's wrong with what he has done. He hasn't forgotten what his job is. He hasn't usurped someone else's job. He's merely offered his thoughts, based on his considerable experience, about what needs to be looked into. If legislators are so disposed, they may easily ignore the judge's suggestion. It seems to me only one with a rigid or a highly inflexible view of what the separation of powers requires would insist that it is improper for the judge to do what he has done here.
4.15.2009 3:00pm
Ben S. (mail):

I'm not having much luck finding the decision, but if you want to argue that electrocution wasn't something that the Framers contemplated, I won't argue with you. (Remember: I'm not a supporter of the death penalty.) But hanging was certainly widely used at the time, and considered adequately humane. (If badly done, of course, it could be quite inhumane; part of why Michigan has never had a death penalty. There was a hanging shortly before statehood that made a very bad impression on all who attended.) Lethal injection is, if anything, far more humane than hanging.


Westlaw should have it. As a citizen, I am kind of borderline on the DP, myself. I think only such a penalty can provide a sense of justice in truly horrific crimes, but I recognize the finality of the method of punishment.

As a lawyer, however, I have no doubt that the DP is not only a constitutional goal, but that all of the modern methods of carrying out the DP (electrocution, hanging, firing squad, gas chamber, lethal injection) are well inside constitutional bounds. IMO, the Eighth Amendment addresses torture---that is, means of punishment that the infliction of pain, not just the termination of life, as their aim.

It is a scary thought that some things we might find deplorable are not shielded against by the Constitution. But this is why we have laws; if it is so scary in the first place, odds are that society as a whole will reject the practice in our laws.

Liberals need to understand that the Constitution is meant to ensure no backsliding occurs below a floor of undeniable and universal civil rights. Public discourse, elected officials, and the laws they create are meant to ensure that our law is on the cutting edge and reflects contemporary standards.

As a general matter, conservatives seem to understand this concept, whereas liberals largely---and often intentionally---ignore it.
4.15.2009 3:09pm
Ben S. (mail):
Edit: Should read "means of punishment that have the infliction. . . ." I know, I know; preview.
4.15.2009 3:11pm
David M. Nieporent (www):
Why should we want to deprive our federal and state legislators and the general public of the thoughts of an experienced federal judge about serious problems with capital punishment?
I fail to see what thoughts a federal judge has relevant to the issue of cost. A judge presides over trials. He implements the standards laid down by the Supreme Court. He can discuss the difficulties of doing so. But he doesn't pay the bills, and doesn't have any special expertise on cost-benefit analysis.
Or is the objection only that the judge makes his thoughts known in what is essentially dicta in a judicial opinion? Would the same objection be made were the judge to express the same thoughts in testimony before a legislative body, in a newspaper op-ed piece or in a law review article?
I don't think there would be the same objections, no. Those are places for personal opinions. (I still don't see why a judge would necessarily have anything to contribute, though.)
4.15.2009 6:54pm
Michael Ejercito (mail) (www):

That's always been my complaint about the death penalty. It's so rare, and it takes so long, that it's hardly any deterrent over and above incarceration.

Why does it take so long?

Was crucifixion expensive for the Romans?
4.15.2009 8:58pm
Michael Ejercito (mail) (www):

The studies showing the death penalty to be "more expensive" suffer from the bias that they have not followed the prison lifers to the end of their lives - many of them will develop geriatric conditions which will be very expensive for the taxpayers to treat.

If they become physically inform, we just commute their sentences and dump them in L.A.'s skid row where they can quietly starve to death.
4.15.2009 9:05pm
ReaderY:
I am far less opposed to judges stating their personal opinions then some others. Judges are public officials whose opinions and experience legislators might find worth listening to. I think that clearing stating what their personal opinion is will result in less confusion between what interpreting the law and implementing personal beliefs and values.
4.17.2009 2:01am

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