MARSH MADNESS
Yesterday, the Supreme Court decided that Kansas' death penalty statute, which REQUIRES the imposition of the death penalty if the weight of the mitigating evidence is in equipoise with the weight of the aggravating evidence, is constitutional. The decision was 5-4. No points for guessing who voted how. And no points for guessing which judge who always claims his colleagues should keep their personal beliefs out of the decision-making process smudged his own personal beliefs all over his colleagues like so much of the sludge that he said in the recently-decided Rapanos case the "enlightened dictator" EPA has no business regulating.
Dahlia Lithwick is on the scene, describing the obscene:
Some initial thoughts on Kansas v. Marsh, which we can chew over at greater length tomorrow perhaps: This was a case out of the Kansas Supreme Court, involving that state's capital-sentencing scheme. As is true in many states, in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, they must weigh various statutory "aggravating factors" against "mitigating factors." The aggravating factors are some of the shocking aspects of the crime (was it done for money, or was it especially heinous), and the mitigating factors are pleas for mercy (the defendant was abused as a child). If the aggravators outweigh the mitigators, you die; if the mitigators outweigh the aggravators, you live, and—adds the Kansas statute—the tie goes to the hangman: If the aggravating and mitigating factors found by the jury are equal—say, three apiece—the defendant dies too (actually, it's not a head-count - three versus three - but rather the WEIGHT of the mitgating factors v. the weight of the aggravating factors - that controls. If there is only one mitigating factor, but there are four aggravating factors, equipoise can result if the one mitigating factor is especially strong and the four aggravating factors are relatively weaker).
The Kansas Supreme Court had decided that such a system was unconstitutional (it also found an independent state law basis for disposing of the case. Nonetheless, the Supreme Court couldn't resist telling the Kansas Supreme Court that it didn't interpret its own law properly, and thus the Supremes granted cert anyway - JUST to render the result it did). This morning the Supreme Court disagreed, holding that such a system does not violate the prohibition on "cruel and unusual punishment" set out in the Eighth Amendment. In a 5-4 opinion authored by Justice Clarence Thomas, the court explained why:
The courts' precedents, specifically its ruling in 1990's Walton v. Arizona, provide that so long as a jury is given the opportunity to consider all the mitigating evidence, there is no reason to micromanage a state's specific sentencing scheme. Jurors have the right to discretion, but there's no constitutional rule requiring how that discretion be allocated. (Walton simply said that if the aggravating evidence does not outweight the mitigating evidence, the death penalty cannot be imposed. It did not address the tiebreaker situation. Justice Thomas used tortured logic to make it look as though Walton implied that an equipoise situation mandated death. Well, at least his bloodlust was satisfied for a day).
In Thomas' view, Walton decides Marsh, full stop. This is a point disputed wholeheartedly by Justice John Paul Stevens in his dissent today. Stevens says Thomas is using a dissent in Walton to mischaracterize the plurality's decision on this issue.
Thomas goes through the requirements for a constitutional death-penalty statute set forth in the high court case law and says these baseline conditions are met in the Kansas statute. "In aggregate," he writes, "our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision, and oblige sentencers to consider that information. The thrust of our mitigation jurisprudence ends here." (Actually, it doesn't; if mitigating evidence has less weight than aggravating evidence, the death penalty cannot be imposed. Moreover, what Thomas did not mention is that the "thrust" of the court's "aggravating" jurisprudence has more torque than the thrust of the mitigating jurisprudence; the Court has held that virtually any so-called "victim impact" statement can be admitted into evidence - effectively as aggravating evidence - under the theory that such evidence is "relevant" to the sentencing decision. Is it really relevant to a sentencing decision how a family member feels about the death of a loved one? Say the family member couldn't care less that his son was killed by someone charged with a capital crime who is about to be sentenced to death. Should this family member's apathetic statements dictate that the killer not be sentenced to death, assuming the remaining aggravating evidence carries greater weight than the remaining mitigating evidence? Say a family member lapsed into a deep, irreversible depression upon the son's death. Should this fact be dispositive of what the role of the death penalty is - a considered reflection of the COMMUNITY that a crime was so heinous that the offender deserves to die? The Court members who favor victim impact statements were - surprise - the same ones who voted in the majority in Marsh. In other words, they favor results that favor death, just as they, in Marsh, accused their opponents, out of "personal feelings," of favoring results that do not result in death. The hypocrisy astounds).
Thomas also goes out of his way to show that both the jurors and the state have ample opportunity to exercise their discretion; to bend and stretch to show mercy at any phase in the proceedings (never mind that he gives them a Long Dong Silver tongue lashing whenever they attempt to use same). He appears to be of the belief that italics have some linguistic superpower to confer a multiplicity of choices on the jurors who decide capital cases: "Imposition of the death penalty is an option (duh) … once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing (duh) … a jury is permitted to consider any evidence related to any mitigating circumstance (duh)."
Why, at almost every stage of this scheme, it seems, the jurors have choices to make. Italicized choices. So many choices, in fact, that Kansas kindly relieves the jury of that final choice: If it's really close, execution is automatic and the jury can go home. (With choices like that, the jury is relieved of having to, finally, think. No wonder Thomas loves the Kansas statute).
Italicization as empowerment: I like it.
Thomas goes on to dismiss Justice David Souter's dissenting argument—that death-penalty cases warrant special scrutiny because people, well, die—as both "irrelevant" and "beyond the scope of this opinion." (Of course, he does not dismiss Justice Scalia's diatribe against the "abolitionists" - a rejoinder to Justice Souter - as irrelevant). He writes that the dissenters' "general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose," adding, "[t]his court, however, does not sit as a moral authority." (Thomas thereby acknowledges that the imposition of the death penalty involves a moral dimension. He merely believes that to not impose it is immoral).
Why sit as a moral authority when you can sit as a supercomputer?
But of course the real wackiness today comes with Justice Antonin Scalia's concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia's nail-spitting this morning: He attacks the 1987 study cited by Souter whose "obsolescence began at the moment of publication"; the "exonerees" who are "paraded by various professors" (from whom else could the word professors be a slur?); and the dissent, which merely "parrots articles or reports that support its attack on the American criminal justice system." (Who knows what the phrase "American criminal justice system" means to Antonin Scalia? Scalia may be correct when he states that there have been no DOCUMENTED cases of a later-found-to-be innocent person having been executed, but his implicit confidence that this has never happened and never will happen, and that somehow what he believes to be the "stringent" procedural safeguards meant to prevent such a thing from happening (procedures he has found are not constitutionally required) have in fact done their job, are both misplaced. The overwhelming majority of executed defendants' cases have not been re-examined, for whatever reason; witnesses die, witnesses lie, events fade from memory, evidence is lost. Recreating a situation that itself was recreated (to improper effect many times) is not normally SUPPOSED to lead to a finding that an executed man was in fact innocent. Moreover, as a practical matter, a state or executing authority has no incetive to undertake such a recreation, and those evil criminal justice advocates are limited in their ability to take up even a fraction of the cases in which they believe STRONG evidence of actual innocence exists. Finally, Scalia's diatribe, in addition to being hypocritical, is a red herring. The dissenters are not claiming the death penalty should be abolished. They have merely argued that it should be imposed more uniformly, and that doing so would DECREASE the likelihood of an innocent person being executed. Some people might slip through the cracks of a system that allows for unmistakeable jury passion in sentencing black people to death to exist. In McClesky v. Kemp (1987), four dissenters argued that because such racial animus was so unmistakeable that black people were more likely to be executed in Georgia than white people by a ratio of 10-1, the majority told the dissenters, who argued Georgia's death penalty scheme was racially discriminatory and standardless - to screw off by saying discrimination must be proven in an individual case. This is perhaps the only time the "lust for death" judges really care about focusing on a defendant in particular - go figure. At any rate, these judges, by, as Harry Blackmun said, "allowing the states to execute whomever they please, however they please," have properly opened themselves up to Souter's criticism. Finally, does ANYONE believe that if one, ten, a THOUSAND innocent people were executed, Scalia would change his views on the death penalty one little bit? THIS is what it means to be a hypocrite, folks. Take the fact your opponents claim as true and see if your own views change if it in fact "becomes" true (i.e. are gay people born gay?) If your views don't change, you're not interested in facts - just in death, or bigotry, or both.)
Damn, where are my italics when I really need them?
Now, why, you may be wondering, does Justice Scalia who is—let's recall—on the winning side of this case, feel the need to unload with this scorched-earth diatribe? Why isn't he willing to grant even an inch? A "to be sure"? A nod to the poor representation some capital defendants receive in the trial courts, or the screw-ups that do in fact happen in crime labs? Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side? (Psst. Because of his "personal opinions," i.e. hate).
Justice Souter's dissent in this case is itself hardly a scorcher. He mainly urges that since the Kansas statute mandates death even in "doubtful cases," it may be worth pushing the pause button. He suggests, again, that "death is different" because, to most of us, death really is different. This alone seems to be what sends Scalia over the edge.
So, a question: How is it that Scalia always manages to have it both ways? He and Thomas paint the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a "moral" process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called "innocent" exonerees. He isn't dispassionate here; he's hardly even rational at points. How can he assert that death isn't different, when it clearly drives him to the brink of insanity? (Answer: to a thinking man, he can't).
Finally, one more hypocrisy: Scalia consistently urges us to disregard the whims of the international community when deciding U.S. law, then today asks the dissenters to hold their powder before "impugning" the American criminal justice system "before the world."
The whole world is watching, Ninny.
Dahlia Lithwick is on the scene, describing the obscene:
Some initial thoughts on Kansas v. Marsh, which we can chew over at greater length tomorrow perhaps: This was a case out of the Kansas Supreme Court, involving that state's capital-sentencing scheme. As is true in many states, in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, they must weigh various statutory "aggravating factors" against "mitigating factors." The aggravating factors are some of the shocking aspects of the crime (was it done for money, or was it especially heinous), and the mitigating factors are pleas for mercy (the defendant was abused as a child). If the aggravators outweigh the mitigators, you die; if the mitigators outweigh the aggravators, you live, and—adds the Kansas statute—the tie goes to the hangman: If the aggravating and mitigating factors found by the jury are equal—say, three apiece—the defendant dies too (actually, it's not a head-count - three versus three - but rather the WEIGHT of the mitgating factors v. the weight of the aggravating factors - that controls. If there is only one mitigating factor, but there are four aggravating factors, equipoise can result if the one mitigating factor is especially strong and the four aggravating factors are relatively weaker).
The Kansas Supreme Court had decided that such a system was unconstitutional (it also found an independent state law basis for disposing of the case. Nonetheless, the Supreme Court couldn't resist telling the Kansas Supreme Court that it didn't interpret its own law properly, and thus the Supremes granted cert anyway - JUST to render the result it did). This morning the Supreme Court disagreed, holding that such a system does not violate the prohibition on "cruel and unusual punishment" set out in the Eighth Amendment. In a 5-4 opinion authored by Justice Clarence Thomas, the court explained why:
The courts' precedents, specifically its ruling in 1990's Walton v. Arizona, provide that so long as a jury is given the opportunity to consider all the mitigating evidence, there is no reason to micromanage a state's specific sentencing scheme. Jurors have the right to discretion, but there's no constitutional rule requiring how that discretion be allocated. (Walton simply said that if the aggravating evidence does not outweight the mitigating evidence, the death penalty cannot be imposed. It did not address the tiebreaker situation. Justice Thomas used tortured logic to make it look as though Walton implied that an equipoise situation mandated death. Well, at least his bloodlust was satisfied for a day).
In Thomas' view, Walton decides Marsh, full stop. This is a point disputed wholeheartedly by Justice John Paul Stevens in his dissent today. Stevens says Thomas is using a dissent in Walton to mischaracterize the plurality's decision on this issue.
Thomas goes through the requirements for a constitutional death-penalty statute set forth in the high court case law and says these baseline conditions are met in the Kansas statute. "In aggregate," he writes, "our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision, and oblige sentencers to consider that information. The thrust of our mitigation jurisprudence ends here." (Actually, it doesn't; if mitigating evidence has less weight than aggravating evidence, the death penalty cannot be imposed. Moreover, what Thomas did not mention is that the "thrust" of the court's "aggravating" jurisprudence has more torque than the thrust of the mitigating jurisprudence; the Court has held that virtually any so-called "victim impact" statement can be admitted into evidence - effectively as aggravating evidence - under the theory that such evidence is "relevant" to the sentencing decision. Is it really relevant to a sentencing decision how a family member feels about the death of a loved one? Say the family member couldn't care less that his son was killed by someone charged with a capital crime who is about to be sentenced to death. Should this family member's apathetic statements dictate that the killer not be sentenced to death, assuming the remaining aggravating evidence carries greater weight than the remaining mitigating evidence? Say a family member lapsed into a deep, irreversible depression upon the son's death. Should this fact be dispositive of what the role of the death penalty is - a considered reflection of the COMMUNITY that a crime was so heinous that the offender deserves to die? The Court members who favor victim impact statements were - surprise - the same ones who voted in the majority in Marsh. In other words, they favor results that favor death, just as they, in Marsh, accused their opponents, out of "personal feelings," of favoring results that do not result in death. The hypocrisy astounds).
Thomas also goes out of his way to show that both the jurors and the state have ample opportunity to exercise their discretion; to bend and stretch to show mercy at any phase in the proceedings (never mind that he gives them a Long Dong Silver tongue lashing whenever they attempt to use same). He appears to be of the belief that italics have some linguistic superpower to confer a multiplicity of choices on the jurors who decide capital cases: "Imposition of the death penalty is an option (duh) … once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing (duh) … a jury is permitted to consider any evidence related to any mitigating circumstance (duh)."
Why, at almost every stage of this scheme, it seems, the jurors have choices to make. Italicized choices. So many choices, in fact, that Kansas kindly relieves the jury of that final choice: If it's really close, execution is automatic and the jury can go home. (With choices like that, the jury is relieved of having to, finally, think. No wonder Thomas loves the Kansas statute).
Italicization as empowerment: I like it.
Thomas goes on to dismiss Justice David Souter's dissenting argument—that death-penalty cases warrant special scrutiny because people, well, die—as both "irrelevant" and "beyond the scope of this opinion." (Of course, he does not dismiss Justice Scalia's diatribe against the "abolitionists" - a rejoinder to Justice Souter - as irrelevant). He writes that the dissenters' "general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose," adding, "[t]his court, however, does not sit as a moral authority." (Thomas thereby acknowledges that the imposition of the death penalty involves a moral dimension. He merely believes that to not impose it is immoral).
Why sit as a moral authority when you can sit as a supercomputer?
But of course the real wackiness today comes with Justice Antonin Scalia's concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia's nail-spitting this morning: He attacks the 1987 study cited by Souter whose "obsolescence began at the moment of publication"; the "exonerees" who are "paraded by various professors" (from whom else could the word professors be a slur?); and the dissent, which merely "parrots articles or reports that support its attack on the American criminal justice system." (Who knows what the phrase "American criminal justice system" means to Antonin Scalia? Scalia may be correct when he states that there have been no DOCUMENTED cases of a later-found-to-be innocent person having been executed, but his implicit confidence that this has never happened and never will happen, and that somehow what he believes to be the "stringent" procedural safeguards meant to prevent such a thing from happening (procedures he has found are not constitutionally required) have in fact done their job, are both misplaced. The overwhelming majority of executed defendants' cases have not been re-examined, for whatever reason; witnesses die, witnesses lie, events fade from memory, evidence is lost. Recreating a situation that itself was recreated (to improper effect many times) is not normally SUPPOSED to lead to a finding that an executed man was in fact innocent. Moreover, as a practical matter, a state or executing authority has no incetive to undertake such a recreation, and those evil criminal justice advocates are limited in their ability to take up even a fraction of the cases in which they believe STRONG evidence of actual innocence exists. Finally, Scalia's diatribe, in addition to being hypocritical, is a red herring. The dissenters are not claiming the death penalty should be abolished. They have merely argued that it should be imposed more uniformly, and that doing so would DECREASE the likelihood of an innocent person being executed. Some people might slip through the cracks of a system that allows for unmistakeable jury passion in sentencing black people to death to exist. In McClesky v. Kemp (1987), four dissenters argued that because such racial animus was so unmistakeable that black people were more likely to be executed in Georgia than white people by a ratio of 10-1, the majority told the dissenters, who argued Georgia's death penalty scheme was racially discriminatory and standardless - to screw off by saying discrimination must be proven in an individual case. This is perhaps the only time the "lust for death" judges really care about focusing on a defendant in particular - go figure. At any rate, these judges, by, as Harry Blackmun said, "allowing the states to execute whomever they please, however they please," have properly opened themselves up to Souter's criticism. Finally, does ANYONE believe that if one, ten, a THOUSAND innocent people were executed, Scalia would change his views on the death penalty one little bit? THIS is what it means to be a hypocrite, folks. Take the fact your opponents claim as true and see if your own views change if it in fact "becomes" true (i.e. are gay people born gay?) If your views don't change, you're not interested in facts - just in death, or bigotry, or both.)
Damn, where are my italics when I really need them?
Now, why, you may be wondering, does Justice Scalia who is—let's recall—on the winning side of this case, feel the need to unload with this scorched-earth diatribe? Why isn't he willing to grant even an inch? A "to be sure"? A nod to the poor representation some capital defendants receive in the trial courts, or the screw-ups that do in fact happen in crime labs? Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side? (Psst. Because of his "personal opinions," i.e. hate).
Justice Souter's dissent in this case is itself hardly a scorcher. He mainly urges that since the Kansas statute mandates death even in "doubtful cases," it may be worth pushing the pause button. He suggests, again, that "death is different" because, to most of us, death really is different. This alone seems to be what sends Scalia over the edge.
So, a question: How is it that Scalia always manages to have it both ways? He and Thomas paint the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a "moral" process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called "innocent" exonerees. He isn't dispassionate here; he's hardly even rational at points. How can he assert that death isn't different, when it clearly drives him to the brink of insanity? (Answer: to a thinking man, he can't).
Finally, one more hypocrisy: Scalia consistently urges us to disregard the whims of the international community when deciding U.S. law, then today asks the dissenters to hold their powder before "impugning" the American criminal justice system "before the world."
The whole world is watching, Ninny.
posted by EnterCenter at 5:04 PM
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