Death, Juries and Scalia

Death, Juries and Scalia


Amid all the recent assaults on the Bill of Rights, including the latest trashing in the USA Patriot Act and the denial of habeas corpus to citizens, amid all this, in the span of one week, the Supreme Court has issued rulings almost beyond the dreams of the most ardent civil libertarians.

Listen to the exultant cry of Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty, who said this is “the most favorable term in a quarter of a century, in terms of death penalty jurisprudence.”

For those who have gazed aghast over the past generation as jury rights have been trampled by tough-on-crime fanatics and liberal elites, there are paragraphs in certain opinions in the Court’s rulings that are as momentous as any in the Warren Court. From whose pen did these sentiments issue?

“My observing over the past twelve years the accelerating propensity of both state and federal legislatures to adopt sentencing factors determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.”

John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the fundamental role of the jury as guardian of our rights under the Constitution runs entirely counter to the trend of the past couple of decades, when judges have, with either the approval or indifference of legislatures and the press, been allowed not only to deprecate the jury’s fundamental right to nullify and set the law aside but also to set jurors’ verdicts aside and impose their own, often with lower standards of proof.

By and large, liberals have been the architects of these erosions of fundamental popular rights, whether it was Tip O’Neill rushing through totalitarian drug laws in the mid-1980s; or Clinton’s Antiterrorism and Effective Death Penalty Act (which, among other horrors, junked the doctrine of habeas corpus); or the hate crimes statutes written into many state codes at the behest of gay, feminist and liberal civil rights groups in the wake of the James Byrd and Matthew Shepard killings.

Scalia exposes the contradictions tellingly in his concurring opinion in Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona statute that allowed judges rather than juries to impose the death penalty. He rightly chides Justice Stephen Breyer for inconsistency in endorsing the right of judges to overrule the jury in tacking on enhanced punishment under hate crimes statutes, and then, in Ring v. Arizona, for tacking the other way. Scalia’s term for this kind of pirouette is “death-is-different jurisprudence.”

Another momentous Supreme Court ruling, Atkins v. Virginia, concerns a case in which a man with an IQ of 59 was sentenced to death for committing a robbery and murder. The Court has ruled 6 to 3 that times have changed and that it’s not OK these days to put the retarded to death.

Scalia, dissenting, made an argument in consonance with his view of the jury’s paramount role, as expressed in Ring. Why, he asked, should the determining of a person’s mental competence be allotted to the social scientists, the IQ testers, the battery of so-called experts so memorably stigmatized in the works of the late, great Stephen Jay Gould? Liberals don’t want to execute the mentally retarded; they just want to abort or sterilize them. In the Atkins trial, Scalia noted, the jury had been given testimony on the murderer’s mental capacity but had regarded it as insufficient in detaining the defendant from the death cell.

Scalia asks, How can one exempt people from the capital penalty on the grounds of mental incapacity to recognize the concepts of punishment and retribution, and then put them away in prison for their rest of their natural lives?

Where Scalia is caught in an obvious contradiction is in his endorsement of the notion that only those prepared to vote for the death penalty should be allowed on a jury, and that appeals court judges opposed to the death penalty should recuse themselves in capital cases. “There is something to be said,” Scalia writes in his dissent in Atkins, “for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.” Again, it’s a good argument, but abolition of slavery began in part with the refusal of juries to abide by statutes endorsing slavery. Ditto with religious freedom, starting with William Penn, whose jury refused to convict him for flouting the Conventicle Act.

If he were consistent, Scalia would recognize that jurors should be rejected only if they have a material interest in the outcome of the case. And given that some 30 percent or more in the United States are opposed to the death penalty, such juries would more than likely have a death penalty opponent among the twelve. On the role and rights of the jury I strongly recommend Godfrey Lehman’s Is This Any Way to Run a Jury?

Meanwhile, we should honor the tremendous efforts of the defense teams who fought these cases to the Supreme Court and who have been rewarded by two decisions that overturn the death sentences of hundreds. But the fact remains that it is the death penalty itself that needs to be abolished, and this is a peerless moment of opportunity for death penalty activists to press forward.

The Court majority said in the Atkins decision that the Eighth Amendment prohibition on cruel and unusual punishment reflects social values, which change from century to century and decade to decade (notwithstanding Scalia, who gazes back nostalgically 2,000 years to St. Paul). What an excellent springboard for an invigorated campaign to end the barbarism of judicial killing.

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