The US Supreme Court just handed down Baze v. Rees, a highly fractured 7-2 opinion allowing execution by lethal injection.
My view on capital punishment lies roughly opposite of Feddie's: I don't have any intrinsic, moral objection to the death penalty, but I long since have become convinced that the death penalty system in America is so damaged as to make it virtually beyond repair -- up to and surpassing Justice Stewart's description of it being "wanton and freakish." Consequently, I think as applied it runs afoul of constitutional due process and cruel and unusual punishment protections, and I am not optimistic about the ability of policymakers to find a remedy. On the sub-question of whether lethal injection particularly is impermissible (the subject of this case), I stake no claim: that is a fact-based question about the reliability and pain quotient of the procedure upon which I do not have the relevant information.
But that's not actually what I want to talk about. Rather, it appears (from SCOTUSblog's summary, which I have no reason to doubt -- but I haven't read the opinion itself) that Justice Thomas' concurrence (joined by Scalia) rendered an attack on the plurality claiming that the standard their ruling would lay out would lead to an excess of litigation, potentially grinding the death penalty machinery to a stand-still. My question is why this is a legally relevant consideration?
Now on one level, that answer is easy for a legal pragmatist such as myself -- I don't think any consideration, particularly as to outcomes, is per se irrelevant (though some are far more relevant than others). But for the more...metaphysically minded judges, I admit to some confusion about where trying to insure that death comes quickly to our enemies (to borrow from Morbo) becomes a constitutional principle which can affect and even change our criminal justice protections? To my mind, it seems like -- even from the position that the death penalty is theoretically constitutional -- there is nothing flowing from there that proves that the due process and cruel and unusual punishment hurdles our system has to overcome might be high -- perhaps inordinately high.
Psychologically, this is related to what I termed the philosophy of the limit, the need some people have that there be concrete and solid limitations on the contours of justice, because the alternative means a potentially endless struggle for the ideal. Scalia and Thomas would not, I presume, disagree that the constitutional protections for due process, or against cruel and unusual punishment, act against our ability to implement the death penalty in some way. At the same time, they also believe that "ideally", the death penalty is consistent with these protections. What they can't accept, however, is that practically speaking the hurdles these protections put up may be extremely high -- they may require copious amounts of litigation to resolve, they may demand intense fact-sensitive adjudication and multiple layers of appeal. And that might make the death penalty so hard to implement that it becomes effectively impossible. They can't accept that, so they construct their legal schematics so their limits lie comfortably within that which will allow the machinery of death to proceed smoothly.
Given the constraints of Scalia and Thomas' putative ideology, that is not a legitimate "constitutional" leap. It is a legitimate leap for a pragmatist -- but both Thomas and Scalia loathe pragmatism. So I remain confused. Where does the justification for that sort of reasoning come from?
It's more to do with their alleged fondness for democratic preferences than with pragmatism. Both of these judges declare that because the American people of the several states have voted for legislators who like executing criminals, for the judicial system to severely impede those executions -- to the point that they never actually occur -- threatens democracy. If something is definitely unconstitutional (like a ban on flag burning), the majority's democratic preference can be blocked in order to defend the minority's First Amendment right. But because SCOTUS has held that the death penalty is legal for people who were mentally competent adults at the time of the crime, the democratic preference for executions should not be impeded.
ReplyDeleteYou hear a lot of scorn from folks like Scalia toward the EU's ban on the death penalty and conditioning entrance to the Union on a country's banning execution -- they see this as part of the democracy deficit in the EU.
I think it's more than just about how "broken" or not broken our system is. You could have the most infinitely unbroken justice system, and as long as it is run by humans and not some perfect ubermensch I will always claim it completely immoral and against due process. Yes, I do think there are some people that deserve to die, if for nothing else but to be rid of them.
ReplyDeleteWhat I do not believe is that any justice system, ever, has the ability to be correct about conviction every, single, time. I guarantee you that we have already executed dozens of innocent men and have no idea about it. Let them sit in jail for the rest of there lives, and if they truly are innocent then they'll have the rest of their lives to prove it. Once you execute them, they're gone, and then any further evidence that exonerates them just illustrates the naked immorality and stupidity of supporting the death penalty. If you support the death penalty, and an innocent man dies because of it, then you yourself are a murderer and deserve to be executed.
I don't trust the government enough to decide which citizens get to live and which ones get to die.