June 27, 2006

"Why is [Scalia] blogging his concurrence....?"

Read Dahlia Lithwick's write-up of yesterday's death penalty case, Kansas v. Marsh, in which the court upholds a state law that requires the death penalty when the jury weighs the aggravating and mitigating factors and finds them in equipoise. In Lithwick's words "the tie goes to the hangman."

Let's concentrate on what she has to say about Scalia:
[T]he 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."...

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?...

[Scalia] ... paint[s] 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?
I don't agree that the originalist approach to interpretation is inconsistent with forceful, vivid writing. Lithwick disapproves of the interpretive methodology and that motivates her to portray it as mechanical and inhuman -- the judge as a big computer. Then, she demands consistency within her image and criticizes Scalia for inconsistency. He's not allowed to seem human, because he claimed to be a machine!

But I must say that I do love the notion that to show one's human feeling is to sound like a blogger.

Anyway, what's this about "various professors" with their "parade" of "exonorees"? Let's go to the Scaliatext. He's responding to the dissent, which relies at one point on "a handful of studies that bemoan the alleged prevalence of wrongful death sentences."
One study (by Lanier and Acker) is quoted by the dissent as claiming that “ ‘more than 110’ death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century.’ ” Post, at 8 (opinion of Souter, J.). For the first point, Lanier and Acker cite the work of the Death Penalty Information Center (more about that below) and an article in a law review jointly authored by Radelet, Lofquist, and Bedau (two professors of sociology and a professor of philosophy). For the second point, they cite only a 1987 article by Bedau and Radelet. See Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21. In the very same paragraph which the dissent quotes, Lanier and Acker also refer to that 1987 article as “hav[ing] identified 23 individuals who, in their judgment, were convicted and executed in this country during the 20th century notwithstanding their innocence.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). This 1987 article has been highly influential in the abolitionist world. Hundreds of academic articles, including those relied on by today’s dissent, have cited it. It also makes its appearance in judicial decisions—cited recently in a six-judge dissent in House v. Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J., dissenting), for the proposition that “the system is allowing some innocent defendants to be executed.” The article therefore warrants some further observations.

The 1987 article’s obsolescence began at the moment of publication. The most recent executions it considered were in 1984, 1964, and 1951; the rest predate the Allied victory in World War II. (Two of the supposed innocents are Sacco and Vanzetti.) Bedau & Radelet, supra, at 73. Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review, are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence—which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing—which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)

But their current relevance aside, this study’s conclusions are unverified. And if the support for its most significant conclusion—the execution of 23 innocents in the 20th century—is any indication of its accuracy, neither it, nor any study so careless as to rely upon it, is worthy of credence. The only execution of an innocent man it alleges to have occurred after the restoration of the death penalty in 1976—the Florida execution of James Adams in 1984—is the easiest case to verify. As evidence of Adams’ innocence, it describes a hair that could not have been his as being “clutched in the victim’s hand,” Bedau & Radelet, supra, at 91. The hair was not in the victim’s hand; “[i]t was a remnant of a sweeping of the ambulance and so could have come from another source.” Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 131 (1988). The study also claims that a witness who “heard a voice inside the victim’s home at the time of the crime” testified that the “voice was a woman’s,” Bedau & Radelet, supra, at 91. The witness’s actual testimony was that the voice, which said “ ‘ “In the name of God, don’t do it” ’ ” (and was hence unlikely to have been the voice of anyone but the male victim), “ ‘sounded “kind of like a woman’s voice, kind of like strangling or something U .” ’ ” Markman & Cassell, Protecting the Innocent, at 130. Bedau and Radelet failed to mention that upon arrest on the afternoon of the murder Adams was found with some $200 in his pocket—one bill of which “was stained with type O blood. When Adams was asked about the blood on the money, he said that it came from a cut on his finger. His blood was type AB, however, while the victim’s was type O.” Id., at 132. Among the other unmentioned, incriminating details: that the victim’s eyeglasses were found in Adams’ car, along with jewelry belonging to the victim, and clothing of Adams’ stained with type O blood. Ibid. This is just a sample of the evidence arrayed against this “innocent.” See id., at 128–133, 148–150.

Critics have questioned the study’s findings with regard to all its other cases of execution of alleged innocents for which “appellate opinions U set forth the facts proved at trial in detail sufficient to permit a neutral observer to assess the validity of the authors’ conclusions.” Id., at 134. (For the rest, there was not “a reasonably complete account of the facts U [sic] readily available,” id., at 145.) As to those cases, the only readily verifiable ones, the authors of the 1987 study later acknowledged, “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had.” Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would have hoped that this disclaimer of the study’s most striking conclusion, if not the study’s dubious methodology, would have prevented it from being cited as authority in the pages of the United States Reports. But alas, it is too late for that. Although today’s dissent relies on the study only indirectly, the two dissenters who were on the Court in January 1993 have already embraced it. “One impressive study,” they noted (referring to the 1987 study), “has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984.” Herrera v. Collins, 506 U. S. 390, 430, n. 1 (1993) (Blackmun, J., joined by Stevens and Souter, JJ., dissenting).

Remarkably avoiding any claim of erroneous executions, the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.
Sorry to print such a long passage, but this is what Lithwick decried as his "increasingly hysterical cataloging of the crimes of the so-called 'innocent' exonerees." Remember, she said "He isn't dispassionate here; he's hardly even rational at points" and that the death penalty "clearly drives him to the brink of insanity." Does Scalia deserve that?

I could ask why is Lithwick blogging her criticism, but the question answers itself: She's writing for Slate, and Slate readers are sure to love a "Scalia's ca-ray-zee" rant. Are they going to check the Scaliatext or go about their busy lives feeling one notch more certain that Scalia's a wacko?


Joan said...

That was a long passage, but Scalia's take-down of the so-called "research" was awesome. I love reading that kind of stuff. It's appalling how much "research" is so rigged. And it's all being published in peer-reviewed journals! What I want to know is, what are the peers smoking?

I think you're right about Lithwick needing to paint Scalia as off the wall. That type of thing is one of the reasons I avoid Slate (except for Kaus) most of the time.

Simon said...

Lithwick previously argued that "Scalia's greatest gift as a jurist is his ability to almost persuade anyone who differs with him on any issue, that it's merely due to the fact they are colossal and irredeemable morons." Perhaps he is losing that touch. I suspect that the simple reality is that Scalia is very probably tired of hashing out these same arguments over and over again, when it is so painfully obvious to him that the minority is so plainly wrong. Moreover, it seems to me that Souter is ready to burst; he's about a term away from a Callins v. Collins-style declaration, and I think Scalia thinks so too.

Anonymous said...

I've never seen the charm that others see in Lithwick. She has always struck me as not only biased (which I can live with) but also unfair.

She also seems strangely invested in the Supreme Court outcomes for someone who isn't a US citizen (and I don't mean this as a slam...just that I would expect a bit more dispassion from her because of her Canadian citizenship).

She's an interesting writer just biased (which I can overlook) and unfair (which I can't).

Ann Althouse said...

I'm surprised Scalia didn't go after the assertion that Herrera v. Collins involved a man we know was innocent. (It was about a man who was convicted after a fair trial and wanted an opportunity to use new evidence to prove he was guilty.)

Jake said...

You're right that most people won't go and read the opinion, but I'd say that just increases Lithwick's (and anyone else who writes similar pieces) responsibilty to accurately describe what she's analyzing. We can't seriously expect most people to struggle through a full SC opinion; at least I don't think we can. We can expect someone who gets paid to write about SC opinions, however, to portray them fairly or admit his or her own biases (which I think anyone writing for Slate more or less does just by the virture of writing for Slate). But I agree that it's disappointing to see such loaded language used this way.

Simon said...

There is also a brazenly perverse element to the Court's use of evolving content doctrine: it discourages legislatures from abolishing the death penalty. I'm increasingly of the opinion that this whole business has gotten silly; like abortion, the death penalty is having a corrupting effect on the courts (largely because, as with abortion, a select cadre of judges insist on attempting to use the Constitution to further their normative preferences). Well, here's the problem: as much as I think the time has been and gone when the problems with the death penalty outweigh its benefits, I worry that if I steer a bill abolishing the death penalty in Indiana through our General Assembly, for as long as the Supreme Court is packed with Judges who sign onto the Trop standard, there is the risk that the abolition in Indiana will be used as further evidence of the "evolving standards" of American society in the next "landmark" decision circumscribing the death penalty's use. And that is a problem, because I just don't believe that the death penalty is unconstitutional; I think it should be abolished, but that doesn't mean that any state that so chooses should be foreclosed from changing their minds. Yet the present Court will leap on any state that abolishes the death penalty and say "look at 'the consistency of the direction of change'! Maybe capital punishment is unconstitutional now!"; that is precisely what it did for certain subsets of sentencees in Atkins and Roper, and I see no reason to doubt that those same majorities are eagerly awaiting their next opportunity, and as looking at the syllabi of Atkins, Roper and Marsh, the questions of when, how, and to what extent may ultimately come down to the personal opinions of Anthoy McCleod Kennedy.

Thus, there is a paradox; in their quasi-abolitionist eagerness, the Court's inclination to sieze on changes at the state level actually inhibits those of us who would like to shut down the death penalty from doing so.

M. Simon said...

There were a slew of death penalty cases in Illinois where the accused were railroaded. It made national headlines a few years back.

It caused the Governor, George Ryan, to pardon some and commute the sentences of others.

So there is some recent evidence of problems, even if the court did not cite them.

JohnF said...

Scalia's point at the end of his opinion was not so much that it's impossible to execute an innocent person (though, as he points out, with the current legal and forensic environment it is almost impossible), but rather that if there is some non-zero chance of executing an innocent person, it is up to the states to weigh it against whatever benefits there may be in executing the large percentage of death-sentence convicts who are guilty.

Glenn Howes said...

As a resident of Illinois at about that time, I would say that the more likely reason George Ryan commuted all those sentences was to aid in his P.R. campaign to keep his corrupt butt out of jail.

Didn't work.

vnjagvet said...

M Simon:

Your point is that there are may be some examples which legitimately support the minority's conclusions.

If that is true, the minority should have cited those examples, and not the ones that Scalia dissected.

Nonetheless, Lithwicks scolding article clearly mischaracterizes both the content and tone of Scalia's concurring opinion.

Ann's lengthy quote proves that beyond all doubt, doesn't it?

Greg D said...

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?...

Well, that would be because the arguments advanced by the other side fail all tests of reason, and so deserve no regard.

When your argument is so lame that you have to make claims about articles that the authors have already denied, you've pretty much eliminated any reason why anyone else should treat you seriously.

The question I have: were the dissenters' law clerks so incompetent that they failed to find out that the authors said “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had”?

Or were they so dishonest that they wrote ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century’ despite knowing that it wasn't true?

(BTW it would be nice if we could use the strike tag to do strike-through text.)

the pooka said...

My reading of Lithwick is that she's referring ("increasingly hysterical cataloging of the crimes of the so-called 'innocent' exonerees") to Scalia's extensive discussion that follows the passage Ann cites: his discussion of the Warden article (and the Smith case in Illinois), of the Gross et al. article (and the Smith-of-Pennslyvania and Sheets cases), and the DPIC list (and the Tibbs case).

By AS's dissent, these studies discuss (13+123=) 136 exonerated individuals. I have not had time to go through all those studies to make sure that Scalia's clerks managed to pick out the four most extreme examples that support Scalia's policy preferences in favor of the death penalty. But, I doubt that particular brand of fact-checking is necessary in this case.

John McAdams said...

Scalia is absolutely right that the lists of "innocents" who got on death row and even got executed are bogus.

See my recent article on that:


Note also that Sacco and Vanzetti are on the Bedau and Radelet list of supposed "innocents" who were executed, but recent document finds show that they were clearly guilty.


Is it the case that the sense of moral superiority of the anti-death penalty crowd causes them to cut corners intellectually?

Jeff with one 'f' said...

"like abortion, the death penalty is having a corrupting effect on the courts"

I thought that abortion was a "death penalty".

Mark T said...

With all due respect, the murder of a single innocent person by the state, even under color of law, is immoral and absolutely unacceptable. Period.

Rationalize all you want about the motives of abolitionists, or the quality of their research, but when the state kills even a single innocent person, the failure of the system is absolute and the consequence of that failure is nothing short of barbaric to the victim and his or her family. I have no problem with locking murderers away with no potential of freedom until they die, but state murder is not something that I want to be associated with as a citizen of an allegedly civilized nation in the 21st century.

Simon said...

"I thought that abortion was a 'death penalty'."

Well, it is not hard to imagine the reaction of the abolitionists were someone to propose that henceforth, even the worst of society's criminals should be executed by being locked into a dark chamber not much bigger than their body, whereafter they would be firmly grasped by steel restraints, their skull either drilled or sliced open, and then their brain sucked out through the ensuing hole. I rather imagine the adjectives that would be used to describe such a form of execution - and the person proposing it - would be unprintable. And yet, there are those among us who declare the commission of this atrocity - against not criminals, moveroever, but against the most innocent of all - to be a constitutional and human right. Yet, "[t]he notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd" (Stenberg, 530 U.S. at 953) (Scalia, dissenting).

John McAdams said...

"With all due respect, the murder of a single innocent person by the state, even under color of law, is immoral and absolutely unacceptable. Period."

I take it you think the imprisonment of even a single innocent is immoral then, right?

Don't say that they can be let out, since there is no way to give them back the 20 or 30 years they lost out of their life.

And I suppose you believe government can never make war, or do other things like building roads (a few of which will be badly designed and cause death) or approve prescription drugs (some of which will kill people with arcane and rare reactions).

Anonymous said...

I'm somewhat ambivalent about the death penalty (if it were up to me, I'd abolish it but I'm not terribly passionate about abolishing it). I would like to play the devil's advocate to mark t: (who writes: With all due respect, the murder of a single innocent person by the state, even under color of law, is immoral and absolutely unacceptable. Period.)

Why are we more outraged about a possible mistaken execution (that is executing an innocent person) than we are about the innocents who are killed in warfare? We all grieve when a bomb goes off target or civilians are caught in the crossfire and we do everything we can to prevent some deaths but hasn't most of the country accepted that any reasonable amount of warfare will produce the death of innocents? I contend that we have because we've even developed a term for it "collatoral damage" (which both sterilizes and dehumanizes the death of innocents).

I think most people (even die hard death penatly advocates, yes, pun intended) pause and worry at the possibility of the state executing an truly innocent person to a much greater extend than they worry about innocents (even children) being harmed in a war conflict.

Why? It is far easier to prevent an innocent from being executed by the state than to prevent "collatoral damages" steming from armed conflict.

I suspect mark t doesn't like warfare either so I'm not suggesting that he defend it. But his statement is one that I suspect would be uttered by many people who are ready to accept "collotaral damage" in warfare but not from the court room, when the latter is more preventable than the former.

Abraham said...

With all due respect, the murder of a single innocent person by the state, even under color of law, is immoral and absolutely unacceptable. Period.


Daryl Herbert said...

the pooka said:

Scalia's clerks managed to pick out the four most extreme examples that support Scalia's policy preferences in favor of the death penalty. But, I doubt that particular brand of fact-checking is necessary in this case.

Scalia's opinion should not have to be a 200-page expert report responding in detail to every single argument made or study cited by death penalty opponents.

Scalia should attack their argument at its weakest link. And if the chain breaks, we should side with Scalia for it. That would encourage the abolitionists to go back, and next time make a more honest argument.

Unless, that is, you have something against honesty, and you think honest people should bear the burden of refuting every single word from the mouth of a proven liar/exaggerator/fabulist/etc.

I don't have time for that. We shouldn't waste our time on that. If you can't make an honest argument, then sod off (that's not directed at anyone here).

If someone demonstrates that some part of your argument is wrong, then fix it and stfu until it is fixed. Don't whine that the rest of your argument is still good so it's okay to leave in the dishonest parts.