The Supreme Court’s sharp internal divisions about capital punishment were on unusually open display in today’s opinion in Kansas v. Marsh.
Of particular interest, Justice Souter wrote a dissent joined by Ginsburg, Breyer, and Stevens that reveals the animating thinking behind the longstanding interest among these four Justices in chipping away at the death penalty. According to Justice Souter, there is a constitutional guarantee of “morally justifiable sentencing,” and the recent empirical evidence on the death penalty shows that the actual operation of the death penalty can be difficult to justify morally.
That precedent, demanding reasoned moral judgment, developed in response to facts that could not be ignored, the kaleidoscope of life and death verdicts that made no sense in fact or morality in the random sentencing before Furman was decided in 1972. See 408 U. S., at 309–310 (Stewart, J., concurring). Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability . . .
We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and STEVENS, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences . . .
According to Souter, recent empirical evidence suggests that death penalty laws that raise a high risk of being implemented in morally unjustified ways violate the Eighth Amendment, including the Kansas statute at issue in the case.
In his majority opinion, Justice Thomas responds:
The dissent’s 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. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States’ prerogatives to do soon the grounds the dissent invokes today.
Justice Scalia offers more in a solo concurrence, including a response to the empirical picture presented by the dissenters. It concludes:
Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.
Pingback: The Volokh Conspiracy
As satisfying as I personally find Justice Scalia’s dismantling of the dissenters’ rationale and the “evidence” they marshal in support of it – I worry that it comes across as too much of a smack-down of the abolitionist movement and thus too much like a political argument.
Don’t misunderstand, the dissenters were certainly making a political argument; its just dressed-up more lawyerly. But knowing how that portion of Justice Scalia’s concurrence will be portrayed (any doubt that the newspapers are going to hang – completely out of context, mind you – the term “insignificant minimum” around his neck?) I wonder if this is not getting down in the weeds with the advocates, when Justice Thomas’ opinion had already said all that needed to be said.
I think “any human institution is flawed” is a huge cop out on this one. There is specific evidence that Thomas just isn’t engaging with, and Scalia is making empirical claims that are just false and which he does not provide any support for. (Does anyone think he’s actually looked into cases where death penalty advocates have argued there was a wrongful execution? Some of them are pretty compelling.) And given that he’s mocked the idea that executing an innocent person shocks the conscience, he is in no position to argue that the definitive DNA exonerations of death row inmates somehow don’t matter because they happened before execution.
(I’m not sure this is really the best case to have this debate about though–the connection to the central legal issue here seems tenuous.)
[OK Comments: Catherine, I think Thomas's point is that whether an institution is flawed doesn't have an obvious constitutional significance. So he's only "copping out" if you happen to disagree with his premises.]
Scalia’s comment rings hollow, as it does when made by so many: “This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to…”
First, this is a total line of bull, and Scalia should be aware of all the reasons it is so. Absence of proof is not proof of absence, as any person of faith should know. And most people of common sense should know, as well.
Second, why is the demonstration uncommon? Because DNA testing is new, and because evidence is often destroyed before it can be tested. As well, not every death row case has evidence that can be used to exonerate the innocence; again, as Scalia should know but is happy to ignore. If one is convicted by eyewitness testimony, just exactly which post-execution “proof” can be used to show that the execution was mistaken?
Does anyone think he’s actually looked into cases where death penalty advocates have argued there was a wrongful execution? Some of them are pretty compelling.
You might want to start with Scalia’s concurrence in the case that you’re commenting on. I’d say he looks pretty closely at those “pretty compelling” wrongful execution cases. Or did you have a quibble with the way he handled them in his concurrence?
I guess “death is different” is itself dead.
Well, I think that the institution as it actually exists in several states is flawed in a way that routinely violates the due process clause, the sixth amendment right to counsel, and, if there is any life left in Furman’s statements about arbitrariness, the cruel and unusual punishment clause. That’s the standard argument that people make, there’s a lot of specific evidence to support it, and “all human institutions are flawed” doesn’t really begin to address it.
I am not sure whether the evidence that Souter cites is specifically relevant to the constitutional issue in this case, and if Thomas restricted himself to that argument I wouldn’t really have a problem with it. But to say that it’s “the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses”–that’s just not true. You have to make some genuine effort at fixing the glaring flaws in the current system before you get all philosophical about the inherent flaws in human institutions. The court’s right to counsel jurisprudence doesn’t make sense, and many of the requirements it imposes in various precedents are ignored on the ground in several states. Again, the relevance of all this to today’s case is debatable, but I don’t think Thomas and Scalia are only making that point; they seem to be dismissing this evidence more generally with an airy “all human institutions are flawed”.
Katherine,
I believe Scalia’s point is that it has never been proven that we have executed an innocent man. Granted, there have been many exonerations. He is implicitly arguing that maybe we have executed some for whom later revelations show they shouldn’t have been executed under the relevant burden of proof/persuasion. But that is categorically different from saying we have executed someone who is completely innocent. That’s at least how I understand the argument.
Scalia said: “But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.”
Yes, how true . . . except for the poor fellow who was wrongly executed.
As to Scalia’s query about where all those cases are showing wrongly imposed death sentences, consider for a moment the number of people on death-row exonerated because of the recent application of DNA testing.
Does anyone reading this blog think that no innocent people were executed before we had DNA testing?
There was a time, long before the New Deal or the Warren Court, when it was said that the Bill of Rights was to be read liberally. Gouled v. United States, 255 U.S. 298, 304 (1921) (“It has been repeatedly decided that (the Fifth Amendment) should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by (it), by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers.”)
That line of thinking looks like some sort of sad, sick joke now.
[OK Comments: Marc, I suspect Justice Scalia would be willing to return to the death penalty jurisprudence of 1921, the year Gouled was decided. Would you?]
actually, it appears that Scalia’s critique of the claims regarding the number of allegedly innocent people released from Death Row was influenced by a case specific critique submitted by california in an AC brief filed in the separate case of House v. Bell –as a matter of disclosure, I authored that brief for California
I’m troubled by Justice Thomas’s comment that the “Court … does not sit as a moral authority.” I would agree that it shouldn’t sit as the moral authority, but there are times when the Court risks credibility by failing to elevate morality over law (ie, acting as a moral authority).
The most obvious examples are Brown and Korematsu. In my 1L Con Law class, every model of constitutional interpretation was based on whether it would affirm Brown. Why? I don’t find Brown to have solid legal grounding, but it seems that academics have accepted that there are times when law must fit moral aspirations instead of existing in its own universe.
On the other hand, the Korematsu court decided to stay within the four corners of law and leave morality to the political branches, and we know how that affected the Court’s future legitimacy.
These situations are extremely rare, perhaps arising once per generation, and I think they warrant creative constitutional justifications to ensure that morality trumps bad law. Blind justice does not mean willful ignorance of morality.
[OK Comments: RMH, let's assume you're right. In your view, is Kansas v. Marsh one of those once-per-generation moments?]
Justice Scalia’s opinion is strong on rhetoric and ad hominin attacks and sadly short of genuine dialogue with the dissent or the constitution. According to Scalia the dissent seeks to invalidate the equipoise rule merely on the basis of “their personal disapproval,” that is on no principled basis. In contrast, Scalia presumably believes that his opinions are principled. Yet, he begins his principled opinion by distorting the dissent’s argument: – he writes the “dissent essentially argues…” Perhaps he should have started with what the dissent actually argues.
[OK Comments: I think one of the difficulties is that it's actually a little hard to figure out exactly what Souter is arguing. I ran into that problem when trying to write the post; Souter makes lots of suggestions, and uses some strong language, but the legal argument seems somewhat hard to follow.]
[Comment edited by OK]
Pingback: Overlawyered
What Prof. Kerr says about Thomas is valid, but the point that “any human institution is flawed” was Scalia’s, not Thomas’s. And since Scalia chose to explicitly make the argument that the possibility of error has been reduced to “an insignificant minimum,” it’s fair not only to question the validity of that claim, but also to note that Scalia once again seems to be making an un-Scalia-like empirical claim where the relevant issue is constitutional.
Does the meaning of the Eighth Amendment turn on the likelihood of error in the trial process? If not, then Scalia probably shouldn’t be throwing in the argument that errors are few and far between, especially since the debate is hardly as settled as he claims. And if the meaning of the Eighth Amendment evolves as our trial processes become more or less perfect, then does that mean that if we discover tomorrow a proven case where an innocent man was executed, the defendant in Marsh ought to be able to move for reargument?
Steve,
Outside of the death penalty context, where views of the constitutional requirements obviously differ, has the Court ever considered an argument that imperfect trial processes at a macro level violate the Eighth Amendment?
This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free.
While true, this statement is misleading. As I understand it, many states bar post-execution DNA testing, so conclusively proving the innocence of an executed prisoner is nearly impossible. When data collection is prevented, arguments based on the error rate are invalid.
It seems to me that one must necessarily accept that the death penalty is different in order to entertain such an argument. My point is that Scalia’s comments open the door to consideration of empirical evidence regarding these issues. If it doesn’t matter for Eighth Amendment purposes whether our trial processes are more or less reliable, what is Scalia’s point in bringing the issue up?
I think Justice Thomas states a valid case, and I don’t think that case is altered by the likelihood of error. Scalia would have done better, in my view, to stay away from the empirical point much as Thomas did. Perhaps he was sensitive to claims of being Thomas’ ideological lackey…
It seems to me that Justice Souter’s argument entails the complete abolition of the death penalty. As I was trying to say in my other comment the only way the constitutional guarantee of morally justifiable sentencing could conflict with the Kansas statute but not the death penalty more generally is if it guarantees that only the defendant’s actions can make the difference between whether he gets life or death. In other words the principle must be that the state can’t decide to combat crime by making it easier to apply the death penalty because this wouldn’t be just to the defendant. However, if we were to take this sort of principle seriously then it is hard to see how the patchwork of death penalty statutes and prosecutorial opinion, motivated by public opinion more than anything else, could possibly be constitutional.
Am I missing something or is Souter really just happy to oppose the death penalty (as instituted in this country) wholesale and this is just one instance of that opposition? I hope this is the answer because it is a reasonable position and I am having trouble coming up with any reasonable position which would view this balancing test as unconstitutional but not death qualified juries, random application, incompetant defense lawyers and all the other problems with the death penalty.
“As I understand it, many states bar post-execution DNA testing….”
Precisely which states are those, AC? Virginia was opposing for a time, but the previous governor changed the policy, at which point Roger Coleman was conclusively proven guilty. I have no doubt the new governor will do the same. When they wanted to dig up Felker, Georgia said sure, go ahead.
I’m sorry if this isn’t well-put enough to be approved, but my take on Scalia’s concurrence is that it dampened/defused Souter’s dissent by claiming to have the same concerns and yet failing to reach the same conclusion. In the future, Scalia, and other likeminded Justices, can simply cite Thomas’ concurrence if they like. But Souter’s dissent has much less power than it otherwise would. I think that the reason behind the “battle of concurrences” sometimes is that it’s just a battle over who sets the stage for posterity. Everybody wants to be a Holmes or a Harlan or a Frankfurter. Justices influence law students who are currently learning the law; they influence future Justices who will be voting in future court cases relying on these precedents; and they influence the pool of law clerks who will be drafting the first drafts of the opinions. They also influence what the media reports about the cases and what the public thinks about the Court and its individual Justices. It would be hard to make the argument that Souter is a cold and rational guy and Scalia is a heartless jerk after reading the opinions in this case. At the very least, the spat smashes media memes.
Kent,
Many states don’t bar testing, per se, but many states have a policy that the evidence is destroyed when the sentence is carried out (“executed,” so to speak).
There’s no real difference between a) barring testing after the execution, and b) making sure that the testable material is destroyed after the execution.
Pingback: The American Street » Blog Archive » Scalia’s definition of ‘insignificant’ isn’t
Scalia’s strongest argument flows from his statement that “courts and juries are not perfect.” Every “system” yet invented by man is flawed and the justice system in this country is certainly no different. To argue that it must somehow always achieve a “perfect” outcome in death cases or the system should be abolished is about as logical as to state that the FDA can approve no new drug if we know for a fact (as we almost always do) that 1 in 10 million users will die from side effects. Perfection, if applied as a prerequisite to any human endeavor, will guarantee failure.
Orin:
Touche re: whether Scalia would want to use the law on executions as it stood in 1921. I suspect there wasn’t much if any, though — which makes your point.
But, from where I stand (and practice), I’d welcome a return to the 4th and 5th Amendment jurisprudence of that time period — as a general matter, that is. (Obviously, Katz and wiretaps would need to be revisited — although with Title III, maybe it wouldn’t matter.)
[OK Comments: Marc, but the Fourth and Fifth didn't apply to the states at the time. I gather you would want the modern developments that expanded protections without those modern developments that limited protections?]
[Edited by OK]
Kent–According to the website for the National conference of state legislatures, 25 states have DNA post-conviction testing statutes on the books right now.
RMH betrays precisely the problem that Scalia, Thomas at al struggle against.
The fact that Brown required the Court to step in as overriding moral authority does not mean that the Court is or ought to be a moral authority. It just means that we all like the moral outcome of the case so much that we are willing to hold our noses and ignore the activist nature of the decision. It is logically indefensible to assert that the Court reserves the right to be a moral trump card once a generation. The moral logic of Brown – of trumping law with moral assertion – led directly to Griswold, to Roe, to a host of very badly decided cases. It is the very foundation of “judicial activism”.
Either the Court is a moral arbiter or it isn’t. If you wish it to be, you do not get to pick and choose where or how it applies its collective moral reasoning.
Pingback: The Virginia Progressive » Supreme Injustice