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April 18, 2008

What is Justice Stevens saying about how the legislative process impacts constitutional interpretation?

I am interested in student reaction to this telling sentence in Justice Stevens' opinion in the Baze, the lethal injection case decided earlier this week:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

April 18, 2008 in Interesting statutes and cases | Permalink


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"rest in part on a faulty assumption about the retributive force of the death penalty."

Is Stevens questioning the belief that the death penalty serves to satisfy societal vengeance aimed at the criminal? It seems odd that to criticize the death penalty he would attack retribution rather than the more obvious example of deterrence.

Because of this, I'm guessing he meant to say "deterrent force" here and I wonder if that is even an issue any longer. Does anyone seriously believe that the death penalty deters crime? It is simply a cheaper alternative to LWOP that also satisfies the retribution desired by an outraged public, it has nothing to do with deterrence. I thought everyone was already aware of this issue and content to continue on with the status quo. It isn't really shocking to hear such a notion when it is discussed almost every time the death penalty is brought up.

Posted by: Chad Urban | Apr 18, 2008 11:00:33 AM

Roberts' opinion seems to accept the death penalty as a foregone conclusion. Roberts seeks to justify the methods of the Kentucky legislature, but does not even attempt to justify the continued use of the execution. In his opinion's first footnote, he cites the legislator who introduced the KY lethal injection bill as saying, "if we are going to do capital punishment, it needs to be done in the most humane manner."

If I was Stevens, I would wonder why the Kentucky legislator asked that two-prong question and then refuses to even address the first - and arguably the most important - prong of the question. Kentucky knows that the question SHOULD be answered before it addresses the issue of humane manners of execution, but it just doesn't do it.

If I was Stevens, I would wonder why Roberts would raise this reference if his opinion only addresses Kentucky's handling of the execution and not its justification for the execution.

If I was Stevens, I would also wonder why Ginsburg's dissent only questions the manner of execution and not the rationale itself.

I think Stevens is very focused on the paradox that in their desire to find a more humane way of execution, legislatures and courts are actually eroding the only rationale for the death penalty - retributivism. On page 11 of his opinion _Baze_, Stevens wrote:

At the same time, however, as the thoughtful opinions by THE CHIEF JUSTICE and JUSTICE GINSBURG make pellucidly clear, our society has moved away from public
and painful retribution towards ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. This trend, while appropriate and required by the Eighth Amendment’s prohibition
on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based.

I think Stevens is ultimately frustrated that all branches of the government are answering the second part of the KY legislator's question - what is the most humane way to kill a prisoner - without addressing the first (and more important) question - should we retain the death penalty at all?

Posted by: TNittle | Apr 18, 2008 12:04:19 PM

Just for clarification, having the death penalty is actually much more expensive than LWOP. Studies vary, but the most comprehensive study from N. Carolina estimates that it costs more than 2 million dollars more to execute someone rather than keeping them in prison for life.

Here's a link with more info, but you'll have to copy and paste it.


Posted by: S. Grimm | Apr 18, 2008 1:51:21 PM

Eliza Presson had an interesting take on the "Baze" opinion and Justice Stevens' comments on SCOTUS Blog. Here is a link. http://www.scotusblog.com/wp/baze-commentary-going-forward/

"Opponents of the death penalty are echoing Justice Stevens’ comment in Baze v. Rees that the decision is specific to the factual record before the Court, that the issue is still open in other states with similar protocols, and that it can be litigated anew with different records. I don’t think so. The lead opinion specifically addressed Justice Stevens’ comment and said, “the standard we set forth here resolves more challenges than he acknowledges.” (Slip op., at 22.)"

Posted by: Chris Stnaley | Apr 18, 2008 2:09:48 PM

Frankly, I’m confused by Justice Stevens’ opinion in this case. He joined in the judgment of the court yet I assume from his language that he is trying to signal that a shift might be going on within the court regarding the death penalty as a whole. Yet I don’t see this anywhere from the other justices. Instead, the court focused on the 8th Amendment challenge to the use of the three drug cocktail – namely the possibility that the dosages of sodium thiopental and Pavulon might be enough hide bodily convulsions, but not enough to remove the intense pain of the condemned. Stevens and Breyer seem to be the only justices on the majority side of the court that hint that the death penalty is something that ought to be challenged.

Stevens makes the point about the death penalty’s limited use as a deterrent, but I’m not quite sure how he’s counting if he thinks a constitutional challenge on the death penalty itself would result in the blanket ban of the practice.

Thomas and Scalia seem more than content to rid themselves of this case on the grounds that the use of the three drug cocktail was used because it wasn’t done to inflict pain. That line of reasoning makes me think they’d OK the death penalty in general so long as it didn’t approach sadistic methods like burning at the stake. So that’s Two for the Death Penalty.

Next is the plurality of Roberts, Kennedy and Alito which Scalia and Thomas disapprove of. I do wonder if Stevens thinks his voice carries more weight here than usual because he delivered the joint opinion with Justice Powell in Gregg that brought the death penalty back and set the standards for what constituted cruel and unusual punishment. The plurality quoted from Gregg and notes Powell and Stevens in doing so. Does Stevens think his voice will carry additional weight as a result? I doubt it, but maybe Stevens knows something we don't. Then again, Stevens seemed OK with approving of the judgment while hinting at disapproval of the death penalty in general. Maybe he thinks he isn’t alone… How he assumes that boggles my mind because the plurality have all written that “standard we set forth here resolves more challenges than [Stevens] acknowledges”

Frankly, the plurality and Scalia and Thomas all keep slapping down what appears to be Stevens’ emotional shift on the death penalty saying that “as Justice Frankfurter stressed in Resweber, “[o]ne must be on guard against finding in personal disap¬proval a reflection of more or less prevailing condemna¬tion.” 329 U. S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction.”

This footnote really seems to be the killer though: “We do not agree with JUSTICE STEVENS that anything in our opinion undermines or remotely addresses the validity of capital punishment.”

By my counting, that makes five. Roberts, Kennedy, Alito, Scalia and Thomas. None signaled openly they wanted to shift on the Death Penalty.

Is Stevens’ opinion the work of a man who knows the inner workings of the court and has counted to five based on what he’s seen while in chambers, or is it just the last hope of a justice on his way out, regretting a choice he made nearly thirty years ago and trying to set things right? The man is 88 after all and likely the next justice to retire. One gets the impression that given the statements of the justices, this is a cry to legislators to change their ways and for the court to rethink its position. That said I don’t expect any change unless Stevens thinks his reversal on Gregg will make others on the court reflect on the issue… but they don’t seem to be going that way.

Posted by: Sam | Apr 18, 2008 3:37:53 PM

Stevens' criticisms are concerning to me because they indicate a level of judicial intervention into the legislature in an extreme way. Is it not enough that the Supreme Court can invalidate a law if it is unconstitutional? The Supreme Court is already able to regulate the product of the legislature. Now Stevens seems interested in regulating the process as a whole. Will every piece of legislation from here on out have to begin with the statement, "[t]his statute was passed pursuant to proper deliberation." It's as if Stevens wants to control the legislature itself and make sure that they are conducting themselves in properly in the eyes of the Supreme Court.

Perhaps my understanding of our political system is wrong, but I believe the founders put Article I first because the Congress was supposed to be the most powerful branch of the federal government. And yet here we have a state official from Article III providing th e entire legislature with a basic standard it has to follow.

This just amazes me.

Posted by: Alex | Apr 18, 2008 4:19:54 PM

"rest in part on a faulty assumption about the retributive force of the death penalty."

I think that was the most telling portion of Stevens opinion. A few quotes from Dressler's text on retributivism: "We are justified in punishing because and only because offenders deserve it." "For a retributivist, the moral culpability of the offender also gives society the duty to punish."

It is difficult to understand how any individual can make the judgment that the retributive force of the death penalty is a "faulty assumption." From what divine source has Stevens gained this knowledge?

The murderer has taken the life of another...how does he know that society (or the victim's family) has not made the judgment that the offender deserves the ultimate punishment? Execution, as punishment, requires the decisions of multiple players to varying degrees in each case. (Prosecutors, judges, vicitm's families, the Governor, the Legislature, the JURORS). The deliberative process is complext, perhaps more so than in any other aspect of criminal justice. All of the states that suspended the death penalty also had the opportunity to rexamine themselves. For the most part, each has his or her own role in deciding whether execution is merited (especially the jurors). The American public supports the death penalty in large numbers. FN1

In Stevens' mind, all of these actors are in some sort of state of false consciousness, and cannot possibly come to the decision to execute using logic and reason. Scalia rightly called this judicial fiat.

* For the record, I go back and forth on the issue, but for the most part I oppose the death penalty.

FN1 http://pewresearch.org/pubs/523/capital-punishments-constant-constituency-an-american-majority

Posted by: Nathan | Apr 19, 2008 11:07:01 AM

Some crimes are so gruesome or awful that the death penalty seems appropriate, like the Oklahoma City bombings. However, two things worry me about this. One is the cost of completing an execution. Sarah pointed out that it is an extra $2 million. Second, killing someone that murdered someone else seems to be a contradiction. Saying killing someone is wrong and then killing them doesn't appear to make sense.
I am torn on the death penalty. Sometimes I feel that the only way for certain criminals to come to justice is through execution and other times I think execution isn't right.
However, for the criminals that I feel really deserve the death penalty, I think that the population of criminals in prison will generally take care of this themselves if they feel the same way. Jeffrey Dahmer was killed in prison by the other prisoners.
In a morbid and somewhat sneaky kind of way, this would be a cheaper way to achieve the same end result.

Posted by: Adam | Apr 22, 2008 7:21:16 PM

I have always thought the main goal of the death penalty was as a punishment, and possibly as a deterrent. The death of the inmate, while maybe a bonus in some people’s eyes, seems to be only a consequence of what many believe to be a very effective form of punishment. If this is the case, what good can come from allowing other inmates to kill the convicted person, instead of having the state do it? If the point is to show that the state can and will punish those who commit heinous crimes, I’m not sure turning a blind-eye on intra-prison violence would do the trick. And, with the exception of saving some money, I’m not sure there’s much less irony in letting other inmates kill someone for their crime than having the state do it, except maybe the government can then feel better about themselves because “at least I didn’t do it.”

In my opinion, the strongest, and only necessary argument against the death penalty is the fact that people have been put to death for crimes they did not commit. That in itself should be morally revolting enough to eliminate the practice from our civilized society. And if that is not enough stop our government from killing those they feel deserve it, the racial bias with which the punishment is applied should stop us dead in our tracks. The ACLU has some interesting, and frightening, statistics on the subject.


Posted by: Erin H. | Apr 24, 2008 11:16:48 AM

I am most curious about what Stevens, or any of the other Justices for that matter, means by "retributive force." Does retributive force mean "eye for an eye" or something different? I found this article entitled "The Death Penalty, Beyond Eye for an Eye." http://www.cbsnews.com/stories/2008/04/14/opinion/courtwatch/main4012172.shtml. In the past, the Supreme Court has declared that the death penalty is a "disproportionate" penalty for rape. However, with the change in the composition of the court over the past few years, it will be interesting to see how the Court rules on constitutionality of Louisiana's death penalty law for raping a child. Is death a "proportionate" punishment for raping a child? Is it proportionate retributive force? Also, did anyone see Boston Legal last Monday? Alan Shore argued before the Supreme Court, defending a man with diminished capacity who was sentenced to death for raping a child. Despite the serious subject matter, it's a pretty funny episode.

Posted by: Nikki S. | Apr 30, 2008 9:05:10 PM

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