American Culture

The Supreme Court wants more hanging juries

Hanging nooseBy Robert Silvey

The five reactionary members of the Bush/Roberts Supreme Court are showing themselves, case by case, to have a radical view of the law and of their place in American government. Furthermore, whatever John Roberts and Samuel Alito said in their Senate confirmation hearings about stare decisis, they have now made clear that they have little regard for precedent or for the history of the Court.

Yesterday, in yet another 5–4 decision, Roberts, Alito, Scalia, Thomas, and Kennedy overturned decades of case law in a way that will likely result in more executions. They allowed a trial judge to disqualify a juror who expressed some doubts about the death penalty but who was prepared to follow the law. We can now expect many more “hanging juries.” The justices’ view of the matter was so extreme that their decision overturned a grant of habeas corpus by an appellate judge who is known to be unusually conservative.

John Paul Stevens read part of his forceful dissent aloud, a rare practice that has become more common in this term, as the four centrist justices express their frustration with a majority that continues to deny once-secure legal rights. In the New York Times, Linda Greenhouse writes:

The Supreme Court on Monday strengthened the hand of prosecutors in death penalty cases by making it easier to remove potential jurors who express ambivalence about the death penalty or confusion about how it should be applied.…

The decision overturned a ruling by a conservative icon among federal appellate judges, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.…

Judge Kozinski said the trial judge, in a Washington State court, had improperly granted the prosecutor’s request to dismiss a juror who, while expressing some qualms about the death penalty, also said he would be willing to impose it in an “appropriate” case.

Writing for the four dissenters on Monday, Justice John Paul Stevens said … the court’s precedents made it clear that no matter what a juror’s personal opinion about capital punishment, that juror should not be dismissed in the absence of evidence of unwillingness or inability to follow the law.

The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as “death-qualifying” a jury. It is an exacting process that in this case took 11 days, and it is governedby a series of Supreme Court decisions going back to 1968, before the modern era in capital punishment. The concern in those cases has been that if prosecutors had too free a hand in eliminating those with doubts about the death penalty, the jury would be stacked against the defendant.

And now death juries will certainly be stacked against the defendant. Judges will be able to exclude not only those potential jurors (like me) who would refuse to sanction state murder in any case, but also any who are uncomfortable with the death penalty but still willing to enforce the barbaric law. The jurors who are left will tend to be those who are strong supporters of capital punishment, and any prosecutor’s request for execution will be much more likely to be approved. As Justice Stevens wrote:

Today, the Court has fundamentally redefined—or maybe just misunderstood—the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot [my emphasis].

It’s a sad day for American justice.

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10 replies »

  1. …and it was a sad day for Britain when the authorities withdrew the death sentence. They did it on the understanding that rather than taking a life the murdering criminal would instead receive a life sentence. What a joke that is now…

    The justice system has been tinkered about with so much in England that we have really, really dangerous people roaming freely. Every year we hear about some poor soul losing their life or having terrible actions carried out against them because of the failure of the system to protect the public. This is because they release offenders back onto the streets…

    The government here refuses to hold a referendum on the Death Penalty as past polls have indicated it would be a punishment/solution that the majority would probably like to see re-instated.

    The barbarity of some of the crimes that are committed means that I have no problem in seeing THAT individual pay for his crimes by being put to death. Nor do I want the burden of the criminal on my tax bill.

    I’d rather feed, educate, nurture someone more deserving.

  2. I disagree. Certainly, people who remain dangerous should not be released into society. But the solution is not to kill those who might remain dangerous, rather to be sure they remain incarcerated. Perhaps the UK has not been careful about that, though London is safer than any large American city. In any case, state murder is not the solution.

    Capital punishment is illogical, because it is intended to demonstrate that the state does not approve of killing. It does so by killing someone. Not exactly teaching by example.

    It is unjust, because many innocent people are executed, as we have learned recently from DNA evidence. And poor people are more likely to be executed than rich people, black people more likely than white people. An adversarial legal system rewards those who can afford the best lawyers, and nowhere with more obvious benefit than in a capital case. The millstones of justice do not grind with the same degree of fineness for all citizens.

    It is immoral, because there is no more heinous deed than killing another human being, particularly when the killing is not accidental but carefully considered, premeditated. Every religion has a central teaching like the Fifth Commandment: Thou shalt not kill. (Most religions also provide exceptions and rationalizations for state killing, but that is a matter of traditional dogma, not morality.) Especially in cold blood.

    Capital punishment is also impractical, because the justification that it deters would-be murderers (in the aggregate) is demonstrably false. In the US, more murders occur in states with the death penalty than those without.

  3. “It is immoral, because there is no more heinous deed than killing another human being,..”

    I disagree with this.

    When I hear about 9 month old babies being raped in South Africa, little boys and girls interfered with to the extent that they never recover their minds or achieve the growth that is their right, then I am aware and know that there is something more heinous than the taking of the physical life. It is why Capital Punishment for Rape of Children still exists in some countries in the far East.

    When I consider what type of sacrifices I am prepared to make on behalf of those I love/cherish it is known to me that I can and would die for those I care about. I would sign up for national service (as in Israel), I would donate my kidney (thus leaving me at greater risk, perhaps even leading to my death should luck not be on my side) and there are women everywhere who choose the child’s life they are carrying over their own if diagnosed with cancer by refusing treatment.

    If I know I can in effect take my own life through sacrifice…then I lose no sleep over the idea of cheaply, efficiently and cleanly despatching a life that gave no thought to the value of another.

  4. Robert,

    I’ll leave aside the morality argument for the moment – I have a position there, but would rather address the meat of an argument that the anti-death penalty camp erroneously makes pretty consistently: that it’s a proven non-deterrent.

    This is a popular article of faith, but it is simply not true. The death penalty as practiced HERE is an ineffective deterrent, to be sure, but that’s because there’s no certainty behind it. If you commit a capital crime, you may or may not be caught. If caught, you may or may not be able to plead out of capital punishment. Even if convicted and sentenced to the death penalty, you’re going to have YEARS of appeals to get out of it, and during that period of time any number of things can save you. On the whole, your chances of actually getting executed are about the same as being struck by lightning as you’re attacked by a shark at the very moment you were dying of natural causes.

    Deterrence is a function in large part of certainty. The only way we could make the argument that anti-penalty forces make on that front with any credibility at all would be if we injected a high degree of certainty into the process. If we get to the point where 90% of murderers are executed within a couple years of conviction (streamlined appeals and all that), then and ONLY then could we draw solid conclusions about cap pun’s deterrent effect.

    My guess is that it wouldn’t eliminate capital crimes, but that you’d see a significant dip.

  5. If we followed your idea, Sam, many innocent people would be killed by the state, as the Illinois DNA cases have shown. And besides, I frankly doubt that deterrence, even certain deterrence, would reduce crime. People were hanged for many crimes in 18th-century England, and the criminals were paraded through the street and hanged in public ceremonies. “Justice” was certain and swift. And yet crime was rampant, far more so than it is today. Deterrence, I believe, is a myth.

    I must admit that it’s difficult for me to see any real justification for capital punishment other than a personalized sense of vengeance, unfit for a society that strives for rationality and justice.

  6. Well, let’s poke at this a little, then. First, yeah, it’s critical that you get the right guy. DNA helps, and adjusting the appeals process so that it focuses on more than procedural errors would be a step in the right direction, too.

    Now, on deterrence. What are the possible goals of punishment? Deterrence, rehabilitation, and retribution, right? You seem to be arguing that deterrence doesn’t exist, so let’s toss that from the discussion. The recidivism rate is in the mid-70% range last I checked, and it seems from all accounts that prisons, if anything, take so-so criminals, give them better skills and harden them. So there’s no evidence that rehabilitation is a reality, either.

    That leaves us with retribution as the only meaningful consideration. If this is true, then it raises a question of fairness and seriously alters the morality landscape you raised earlier. Is life imprisonment really a fair retribution for a cold-blooded multiple rape/murder? Maybe, maybe not.

    But at the very least, let’s be very honest with ourselves about the issue. As for the morality issue, I’ve simply never been convinced that you prosper by affording really bad people the benefits of a level of civilization that they’d never afford you. Then again, I’m somewhat of a Machiavellian….

  7. “…other than a personalized sense of vengeance, unfit for a society that strives for rationality and justice.”

    It is precisely because it is natural, human and instinctive to want vengeance that the state took over responsibility for punishment, regularity, improved detection…the list is endless.

    Having given the lawyers their rational day in court the poor old public is having to endure that which a sheltered, extremely wealthy and insulated person does not.

    One day the gangs will not rule the streets anymore…but only when the state properly carries out the wishes of the human majority. My head and heart may yearn for Utopia inhabited by the musical poet…but my feet know they stand in hell’s fire.

  8. Elaine, it may be a human trait to expect vengeance. That doesn’t mean that it’s admirable to give in to our baser instincts.

    I’ll be offline the rest of the day, but I’d be delighted to continue this discussion later. So please carry on, all.

  9. Robert,

    I stopped being an idealistic romantic at eighteen.

    …it is not base to expect justice – my code allows for it.