June 28, 2006

Death and Difference

by Will

So there are really two Marshes worth talking about. Marsh One, which I tried unsuccessfully to provoke interest in, is the debate between Scalia and Stevens about whether it is worth the Supreme Court's while (or within the Supreme Court's Judicial Power) to take the case in the first place. To paraphrase Justice Stevens, Who cares if Kansas is playing fast and loose with the Federal Constitution, so long as nobody gets killed? (This argument is what I glibly and half-unfairly called "Stevens's Nullification Doctrine." No takers yet.

Marsh Two is the fight between Scalia and Souter about the death penalty, and whether or not "death is different" in a way that judges ought to take note of. [There is a Marsh Three-- the actual question presented in the case-- but I agree with PG there is little to say about it because Justice Thomas says all that needs to be said.]

First of all, Scalia probably would have done well to keep quiet on this score. If he is right that the moral status of the death penalty is irrelevant here, then why go into it, provoking the litany of blog posts, newspaper articles, academic emails and law review articles that this section of his concurrence was sure to? It seems like one argument too many, like the accused murderer who says "I wasn't there, I didn't do it, and he hit me first!"

That said. I'm not sure that PG's names below are on-point. Yes, plenty of people have been put on death row and discovered to be innocent before it was too late. The question is whether our modern safeguards (and executive clemency is a safeguard) have allowed an innocent person to be put to death. Scalia's point is that we have no good evidence that the answer is "yes".

I don't know whether PG is right that no organized group is "digging up corpses" to prove that we have executed an innocent person. If not, I can't understand why not. Surely one of the best ways for the death-penalty-as-procedurally-flawed folks to finally "change public policy on death penalty" would be to at last be able to put a face to the claim that innocent people are being killed by the government.

Now, PG, it's fair enough to point out that by narrowing the field to post-Furman executions, Justice Scalia is taking credit for death penalty reforms that he probably would oppose. But those cases are water over the dam so far as Marsh Two is concerned; given the constitutional requirements we have imposed on death penalty regimes, do those regimes kill innocent people, and if so, at approximately what rate?

Anyway, I think I will take Scalia's argument a step further and in another direction. I think it is Justice Souter that is being morally obtuse here. First of all, there is good reason to think that capital cases erroneously convict less often than non-capital felonies do. There are a number of public-interest resources, extra constitutional protections, and other hard looks that help out the capital defendant. In exchange, the capital jury is death-qualified, but errors in the death-qualification procedure can give the defendant another bite at the apple, so it's not even clear which way that cuts. See the discussion of this at Doug Berman's blog.

What's worse, all of this teeth-gnashing about the death penalty means less attention to the real problem of erroneous convictions at any stage. If Justice Souter is right that our death penalty system has an error rate sufficiently high as to be morally suspect, then why not make the same claim about our prison system? Our probation system? They're different in degree, not kind.

Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?

June 28, 2006 07:20 AM | TrackBack

Milbarge's burden of justification analysis is the best defense that can be made of Stevens's pro-defendant judicial federalism.

Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?

Ask Kirk Bloodsworth. As long as there is life, one can protest one's innocence, figure out ways to appeal and hope to leave prison eventually. You and the Constitution don't know upon locking the person up for 50 years when he will die; you have a better idea in an appeals limited death penalty process.

The problem I have with Scalia's assertion that the constitutional safeguards alone are sufficient is that if they were, these exonerations would occur without a need for an Innocence Project (which helps anyone with a claim of actual innocence, not just death row inmates). The Project is not required by the Constitution, it started with a professor's idea -- those darn professors with their parade of "exonerees." It worries particularly about the death penalty because again, once someone has been executed, his innocence will be more difficult to prove and a matter of less interest in a nation that has 2 million prisoners. The exoneration of innocents in our justice system is not self executing, pun unintended. It appears to demand the involvement of the kind of people Scalia derides as the abolition lobby. That's why I get annoyed that he wants to claim for the justice system a correctness that is not inherent to it. The justice system is sufficiently good to allow the intervention of a journalism class, but such investigatory power is not required to be put at the disposal of defendants by the goodness of Scalia's interpretation of the Constitution.

Posted by: PG at June 28, 2006 11:10 AM

I don't think Scalia's claim is that the bare minimum of constitutionally-guaranteed safeguards would be enough to ensure that an innocent person were never executed. His claim is that under the safeguards we have-- of which the Innocence Project is one-- no innocent person has yet been executed, at least as far as we know.

Posted by: William Baude at June 28, 2006 03:18 PM

But the Innocence Project could shut down tomorrow without violating the Constitution (or fretting Scalia much, I suspect). If the constitutionally-guaranteed safeguards are not sufficient to protect the innocent from execution, then Scalia cannot claim that the dissenters and their potential sympathizers should feel secure that innocent people have not been, are not being and never will be executed in the U.S., because it is only the Constitution that can be relied upon, not private actors who may choose to spend their resources elsewhere. Scalia's better argument is that the Constitution does not guarantee against unjust execution, only against execution that is unjust due to a lack of procedural due process.

It's like the people who say not to worry about Roe because the abortion lobby will ensure that women in SD still can get abortions out of state. I can respect the argument that Roe is wrong on the constitutional merits, or that the death penalty is right, but without a constitutional guarantee, we cannot assure people that they still will be protected. It's insulting for me to tell them not to worry because private actors whom I do not support anyway will help them instead.

Posted by: PG at June 28, 2006 05:04 PM
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