June 29, 2015

"We are a court. Why should we not leave the matter up to the people acting democratically through legislatures?"

Justice Breyer sounds the leave-it-to-the-legislature theme today (in the death penalty case, Glossip v. Gross).
The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here....

The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.
Breyer (joined by Justice Ginsburg) concludes that it's "highly likely that the death penalty violates the Eighth Amendment." And: "At the very least, the Court should call for full briefing on the basic question."

Justice Scalia, in one of the concurring opinions (joined by Justice Thomas), calls Breyer's opinion "gobbledy-gook":

He says that the death penalty is cruel because it is unreliable; but it is convictions, not punishments, that are unreliable.... The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment....

Justice Breyer next says that the death penalty is cruel because it is arbitrary. To prove this point, he points to a study of 205 cases that “measured the ‘egregiousness’ of the murderer’s conduct” with “a system of metrics,” and then “compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remaining 196 cases [who were not sentenced to death],” post, at 10–11. If only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum “system of metrics.”...

It is because these questions are contextual and admit of no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure....

50 comments:

Rocketeer said...

"Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

See that bold up there??? Per the terms of the Fifth Fuckin' Amendment the death penalty is fucking constitutional. I am getting sick of these stupid fucks thinking they can put one over on me under the assumption that I am a stupider fuck.

Fuck it.

EMD said...

Needs an "irony" tag.

David Begley said...

Any person with a single brain cell who read Scalia and Breyer back- to- back and comes down on the liberal side is beyond reason.

The Nebraska Legislature just repealed the death penalty. Petition drive to restore it.

Interesting to read Scalia's citation to studies that the death penalty actually deters crime and murder. The Left never tells you that.

sean said...

Maybe the jury system is unconstitutional! My Con Law professor pointed out that the grand jury system--secret proceedings where only one side gets to present its case--would clearly be unconstitutional if it weren't constitutionally mandated. (To avoid paradox, one could say that the grand jury system clearly does not meet the requirements of progressive jurisprudential theory, but its use is constitutionally mandated, which makes it rhetorically difficult for the federal judiciary to follow its normal strategy of declaring it unconstitutional.)

Æthelflæd said...

Scalia is just going all "Honey badger don't give a shit". Gobbledy-gook, jiggery-pokery. He's done with the silliness. Our one bit of entertainment while the Republic burns down.

HoodlumDoodlum said...

It's been a long day and surely someone will point out the obvious answer, but other than the death penalty can you think of anything explicitly mentioned in the Constitution that members of the Court nevertheless try to declare unconstitutional? (Something not repealed by future Amendments, of course) A 2nd Amend. right to personal firearm ownership is all that springs to mind, and even I'll admit the 2A is more ambiguous to clear Const. references to the death penalty!

Saint Croix said...

the death penalty is cruel because it is arbitrary

We might say the same thing about the drafting of Roe v. Wade.

"We need not resolve the difficult question of when life begins." Rather like saying it does not matter if a man on death row is innocent.

The Supreme Court has more important things on its mind than the sanctity of human life. Order! Authority! Follow our rules!

The conservatives object to Roe v. Wade because it's out of order, it's arbitrary, it's illegal. But the actual violence and baby-killing? It does not bother them.

Coupe said...

Hmm, since gobbledygook is not normally hyphenated, I wonder if this is some kind of dig at hyphenated Americans, and their wanting to be only half or less American.

sinz52 said...

For me, there's a reason that the death penalty should still remain on the books for at least some crimes.

Namely, what just happened in New York State: Two convicts sentenced to life imprisonment escaped. While on the lam, they could well have hurt or injured more innocent people. (That happened, in fact, in previous such cases).

In another case in my own state, a convict sentenced to life imprisonment murdered another convict.

Now: Without the death penalty, there is nothing more that society can do to punish these criminals for their new crimes. What are you going to do, take away their library cards? Stop giving them dessert with dinner?

The death penalty must remain on the books as the ultimate deterrent in case a convict sentenced to life imprisonment still manages to commit more crimes, either in jail or having escaped from jail.

So far, I have not heard any death penalty opponents come up with any rejoinder to this, let alone a convincing one.

Anonymous said...

What is a "capital...crime" referred to in Amendment V, other than a crime for which one of the possible penalties is death, its dictionary definition?


Gahrie said...

The Constitution foresees a country that will make most important decisions democratically

How the hell can Breyer write this shit, and not get called on it unmercifully.

Gay marriage shouldn't be decided democratically but the death penalty should?

Gay marriage gets imposed by the Supreme Court, overturning decisions made across the country democratically, and they can't even be bothered to invent a penumbra to justify it, instead relying on #lovematters.

But the death penalty, which is explicitly allowed by the Constitution and has been affirmed democratically is somehow illegitimate.

How can a law professor possibly tolerate, let alone endorse this shit?

Gahrie said...

Now: Without the death penalty, there is nothing more that society can do to punish these criminals for their new crimes. What are you going to do, take away their library cards? Stop giving them dessert with dinner?

Are you kidding? If you tried, the ACLU would file a lawsuit the next day. You're not allowed to actually punish criminals...just lock them up, like an adult timeout.

Michael K said...

The constant search for "less painful" forms of execution is a fool's errand as the gas chamber is still the quickest and least painful (if that's important to you) method. It doesn't require someone to start an IV in a prisoner who probably was a drug addict and whose veins are hard to find. The electric chair was a gimmick to use the new marvel, electricity. Hanging was effective if done right but again required a hangman. The Guillotine was the least painful (we think but will never know) but pretty messy.

California still has its unused gas chamber. Maybe after bankruptcy, it will return to its use.

Gabriel said...

Not like you need an exotic gas--nitrogen will do. You don't need a "gas chamber" either--a thick plastic bag, securely fastened, will do.

Michelle Dulak Thomson said...

Breyer's opinion is a right mess. The death penalty is "cruel" because it takes a long time, and "unusual" because it isn't employed willy-nilly, and "arbitrary" because some people get it and some don't, and this might even vary geographically. If we take him at his word, all Justice Breyer needs to get the death penalty fully under the 8th Amendment is to make the delays even longer and the exercise even rarer.

I do bridle at his suggestion that the delay in carrying out the sentence causes the deterrent effect to evaporate, when he's just finished explaining that an indeterminate period under sentence of death is much, much worse than life w/o parole. Which is it? (And one of the petitioners was already under life w/o parole when he killed someone.)

Anonymous said...

HoodlumDoodlum asked...

It's been a long day and surely someone will point out the obvious answer, but other than the death penalty can you think of anything explicitly mentioned in the Constitution that members of the Court nevertheless try to declare unconstitutional?


Well, there's always the right to keep and bear arms.

Skeptical Voter said...

Well if you are a lefty Supreme, you leave it up to the people when you don't care about the issue. When you do, well--that's another matter.

Terry said...

Occasionally you will hear a progressive snark that conservatives are hypocritical because they are against abortion and in favor of the death penalty. Who is it that the Democrats believe should live and die?
Lots of conservatives are against the death penalty. That is much more diversity among conservatives than liberals.

Fritz said...

Gabriel said...
Not like you need an exotic gas--nitrogen will do. You don't need a "gas chamber" either--a thick plastic bag, securely fastened, will do.


The few people who survive confined space accidents with inert gases generally report "I walked into the room and then I woke up in the hospital."

Killing people painlessly is easy; only a government could screw it up.

Owen said...

Gabriel: love your take on Breyer. But asking a sentimental casuist for intellectual consistency is a lost cause.

How about we not execute these true hard cases, but just not bother to feed them? Benign neglect. And a real cost saving.

Phil 3:14 said...

"The Constitution foresees a country that will make most important decisions democratically"

I had to read that twice to make should I was reading it correctly and that I was correctly understanding who said it.

That man should be tested for Alzheimer's cause that there is a short term memory deficit.

rhhardin said...

We are a court. Why should we not leave the matter up to the people acting democratically through legislatures?

It's a wonder he didn't think of that in Obergefell v. Hodges

Epstein asks What judgments should be left to democratic processes and what judgments should be insulated against majoritarian politics? afterwards.

He favors SSM and its inevitability, but gives the wrong argument against it; nevertheless wonders what the hell the court is up to.

Rocketeer said...

Occasionally you will hear a progressive snark that conservatives are hypocritical because they are against abortion and in favor of the death penalty.

I support abortion in the case of fetuses that have committed brutal murders.

Anonymous said...

For all that people get bothered by the "cruel and unusual" punishment of the death penalty, has anyone ever given thought to the "cruel and unusual" punishment angle of life imprisonment? That's essentially a lifetime excommunication from society with no hope of forgiveness.

When life imprisonment with no possibility of parole is the sentence, it's a judgment that the criminal act is such that the court doesn't prudently think such a person can ever rejoin society or be rehabilitated. The logical - and in some ways merciful - thing to do when this happens is to employ the death penalty.

For the guilty, having a fixed date for death might well lead to remorse that may not come with decades of rotting in a cell (the so-called death-bed conversion, which only comes when death is literally at the door). Even for the innocent, who I admit might get caught up from time to time, the odds that someone takes their case and fights for them is likely to be better when it's literally a matter of life and death than when it's between life and a jail cell.

Rusty said...

Oh. Now he wants congress to make the laws. Jeeze. Make up your mind, pal.

Big Mike said...

Suddenly Breyer remembers that we have a Constitution and democratically elected legislatures? Be still my beating heart!

Michael K said...

Is there any reason for the four leftist justices to actually, you know, listen to arguments ?

We all know how they will vote.

YoungHegelian said...

Do you get the impression that the SCOTUS judges are really pissed off at each other right now, and desperately need some time outs in the corner. You know, a corner like the Hamptons or Provence.....

I suspect that the disagreements over these last cases were not only based on profound differences of legal philosophy, but got pretty damn personal at times. I just don't seem to remember this level of after-decision public "growling" at each other in other years.

tim in vermont said...

Since the test is "cruel AND unusual" wouldn't a simple check to see if it was unusual be enough to rule out unconstitutionality?

No need to convene a panel of experts, to get testimony, etc. Nope. It's not that unusual. If the test were "cruel OR unusual" then such a briefing might be called for. You know, a briefing in which all testimony was motivated by a desired result. That would be real useful as a tool to discover truth.

Of course somebody as versed in logic as your average Supreme Court Justice would know about the rules of 'and' as well as any computer programmer.

I do take back my snark on Breyer though.

HoodlumDoodlum said...

gregq - literally my next (non-parenthetical) sentence, fella.

n.n said...

gobbledy-gook: opinions that are internally, externally, and mutually inconsistent, that can only be reconciled with a pro-choice doctrine.

cyrus83:

Excommunication and an "equal" environment. You would think that SSM alone would be a sufficient deterrent.

Owen:

The Schiavo solution to deprive a human life of nourishment, a reverse play on women's sacrificial rites. The liberals' second-favorite death penalty. Terri, while not quite wholly innocent, was also denied due process, and sentenced to death for her crime.

Rick said...

Note that every argument he makes would be just as applicable to non death penalty sentences.

Real American said...

One might think Breyer is being a fucking hypocrite for all of a sudden believing in legislatures deciding our most important questions rather than unelected fucktards in black robes. But you'd be wrong!

Breyer really views his job as a superlegislative. His role, and his lefty colleagues on the court go along with this, is to produce the most left wing results possible. Sure, sometimes they try to justify it be using the law, but mostly, they just make it up as they go along - figure out the answer, then make the "law" fit the answer.

If only conservatives weren't so restrained by law, precedent, custom, tradition, neutrality and sometimes conscience.

mccullough said...

Breyer leaves important decisions to the people's elected representatives unless he disagrees with them.

His opinions don't persuade anyone who didn't agree with him in the first place. He'll be the last white guy nominated to
The Supreme Court by a democrat.

Matt said...

Truth be told it's Scalia who is full if gobbleldy gook. Read the article in Slate by Dahlia Lithwick. Scalia is all emotion and little reason these days

kcom said...

Killing people painlessly is easy; only a government could screw it up.

Just ask Belgium. They're whacking people left and right. Presumably they are not knowingly torturing "euthanees" to death. If it's good enough for them, it ought to be good enough for a criminal.

Really, this is just an excuse and not a reason to get rid of the death penalty. As someone said above, it's standard leftist logic - pre-ordain the outcome and work backwards to rationalize it. As judging goes, that's pretty cruel to the rule of law. Unfortunately, it's not unusual.

kcom said...

Yes, Dahlia Lithwick can always be counted on for dispassionate analysis.

bgates said...

Read the article in Slate by Dahlia Lithwick.

This from a guy who claims to be opposed to cruel and unusual punishment.

readering said...

Reminder that the U.S. and participating states stand with the handful of more barbaric regimes on this planet in their use of the death penalty. Just to annoy the Scalia-thinking.

Bay Area Guy said...

Breyer doesn't like the death penalty. Fair enough.

Does that punk Dylan Roof deserve a merciful life sentence? Hell no.

Breyer, though, is intellectually dishonest because the Constitution authorizes (or to be technical does not prohibit) the darn death penalty!

YoungHegelian said...

@readering,

Reminder that support for the death penalty in many of those "civilized" regimes is much higher than they'd like you to think. Many of those countries have elites that think nothing of overriding what was at the time the clear electoral will of their people to ban the death penalty. Even after decades of anti-death penalty "persuasion", countries like Canada, Britain, France have sizable fractions of the population that still support it. Even those say they are against the death penalty are not consistent. When asked if someone should die for a liquor store murder, the numbers will drop into the forties. If asked if a Hitler should be executed, the numbers shoot up into the upper 80s/low 90s.

Don't think that a lack of the death penalty prevents miscarriages of justice, either. A few years ago, a Turkish immigrant smuggler trying to sneak immigrants from the Netherlands to Britain suffocated 45 Chinese in the hold of his ship. He got 15 years. That 4 months per Chinese. Because, nothing shows how much you value human life like banning the death penalty.

eddie willers said...

Matt.

You need to read more Scalia and less Slate.

Alex said...

You want to know why the death penalty needs to exist?

Wichita Massacre
Murders of Channon Christian and Christopher Newsom

Then tell me that there is not vicious, evil, murdering beasts that don't need to be put down HARD.

Eleanor said...

Being pro-abortion and pro-death penalty, being against abortion and against the death penalty, or against abortion and for the death penalty can all be argued with some logic. The only combination that makes no sense logically or morally is to be pro-abortion and against the death penalty. To find nothing morally wrong with killing the most innocent among us, but to recoil at killing someone who has committed a heinous crime is baffling. Even the worry over occasionally killing an innocent person can't stand up against knowingly killing over a million innocents every year.

Unknown said...

The death penalty is "cruel" because it takes a long time, and "unusual" because it isn't employed willy-nilly, and "arbitrary" because some people get it and some don't, and this might even vary geographically.

Like drug convictions. Like violations of immigration laws. Like (fill in the blank).

Peter said...

" Now he wants congress to make the laws.

The obvious solution: The Supreme Court should Order Congress to make the laws you think they should make, then start imprisoning Representatives and Senators if they fail to do so.

It's not as if no court had ever ordered a legislature to produce legislation acceptable to a court, it's just that the Supreme Court has not done so.

damikesc said...

How the hell can Breyer write this shit, and not get called on it unmercifully.

Gay marriage shouldn't be decided democratically but the death penalty should?


If a state decided to expand the death penalty, I doubt he'd support it.

And nothing about the decision that states cannot demand proof of citizenship when enrolling voters?

Mike said...

Rocketeer nailed it and said what I was trying to put into words. So there. It is disgusting that a justice can sit there and proclaim his belief that something delineated in the Constitution as a proper punishment somehow violates that same constitution.

BEAM ME UP SCOTTY!

SGT Ted said...

"We are a court. Why should we not leave the matter up to the people acting democratically through legislatures?"

That's exactly what I was thinking about gay marriage.

SGT Ted said...

Breyer is clearly a kook.