Tuesday, June 27, 2006

Clarence Thomas Speaks!

In late June, The Supremes upheld a Kansas death penalty law allowing requiring the death penalty when jurors are evenly split on the issue. As the Chicago Tribune notes,
The ruling overturns a Kansas Supreme Court decision that found the law violated the 8th Amendment's protection against cruel and unusual punishment. Supporting Thomas, in addition to Alito, were Chief Justice John Roberts Jr. and Justices Antonin Scalia and Anthony Kennedy.
The Tribune noted further that
Justice David Souter, writing for the court's liberals, said the law would lead to death sentences in doubtful cases and "is obtuse by any moral or social measure."
In response, the Christian Science Monitor reports Justice Thomas as stating that
"This court, however, does not sit as a moral authority."
So we have Kennedy, the so-called "liberal" Justice presupposing that the Supremes may make moral decisions and Thomas asserting that they must not.

Over a year ago, according to The Washington Post, Justice Kennedy wrote in the majority opinion of a 5-4 decision outlawing the death penalty for those who are under 18 when they commit a death penalty crime, that
"From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed,"
So, again Kennedy presupposes the correctness of deciding cases based on moral judgments and we have one majority decision saying it is okay for the Supremes to do that and another saying it is not. This, if you will forgive my French, is a bullshit way to run a system of justice.

I suspect that Kennedy does not mean that every case should be so decided. However, the 8th Amendment to the Constitution states
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment requires the exercise of moral judgments. Now, the decision as to whether an excessive bail has been imposed or an excessive fine may not involve a moral decision. However, the fact is that the courts take into consideration the means of a defendant in assessing bail. Underlying such a action is the principle that it is immoral to set a bail that would be totally beyond the reach of one person but not another when the crimes are the same in all relevant respects. Up to a point, of course. If a defendant has no financial resources, then any bail is excessive and I suspect that for certain crimes, not imposing bail would not be the judge's choice. Fines are established by law and a judge has little discretion in some cases. Where a judge can decide to suspend the fine for a very poor defendant, doing so because the defendant is poor would represent a moral choice.

Turning to the big issue in regard to the 8th Amendment, it is absolutely clear that what is or is not a "cruel" punishment is a moral question. We seem to be finding out that lethal injections may not always be as pain free as has been thought. Should they be disallowed because they cause significant protracted pain, that would represent a moral choice. No American Court would allow the live dissection of a human as the means of administering the death penalty. Why not? Recognizing that give guides to usage, not definitions, the first "meaning" given for "cruel" in the Merriam-Webster Online Dictionary is
disposed to inflict pain or suffering : devoid of humane feelings
Ureka. We have our response to Mr. Thomas. The 8th Amendment demands a moral judgment and therefore the Supremes are, contrary to what Thomas says, the arbiters of morality in some cases and the death penalty is one of them.

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Blogger Full Metal Attorney said...

That's a really good point. But I'm not sure how the nature of making the decision for a punishment can make the punishment itself cruel. I know there's precedent for it, but it sounds like BS to me. If we have a unanimous decision to skin someone alive, it's no less cruel because the decision is unanimous. Conversely, a simple majority decision to execute in the most humane way possible does not become cruel simply because the decision is not unanimous.

In Con Law we always liked to make fun of Justice Thomas. We speculated that he has a macro on his word processor program that says precedent is unimportant and only the text of the Constitution matters.

Like I said, you make a good point. But in any other circumstance it's not the role of SCOTUS to be making decisions about what would be better. It's interesting that the third branch has gone from a simple body that applies rules and decides what happens when rules conflict with each other to the champions of the minority and the downtrodden. I didn't see the memo that changed their role, and I don't think anyone in the American citizenship did see that memo (unless it was Griswold).

9:16 AM

Blogger The Language Guy said...

You make some nice points but the fact is that Justices make moral decisions all of the time. Punishments are cruel or not because they are judged by the courts as being either inhumane or humane. That makes the decision of the court irreducibly moral.

As for the death penalty itself, the issue is whether or not it can be said to be fair when it is clear that persons sentenced to death have been proved to be innocent of the crime. We can never be sure we have caught all our mistakes. That makes the imposition of the death penalty unfair in principle. The ultimate question is whether the state should engage in unfair actions. The equal protection clause says no. We have another moral judgment. Unequal = bad.

10:16 AM

Blogger Full Metal Attorney said...

I'm not sure why you're bringing the Equal Protection Clause into this. Unfair does not necessarily mean unequal, although unequal does mean unfair. Could you please clarify?

I'm going to speculate a bit on why the EP Clause is important in the discussion. A few years ago cert. was denied in a death penalty case. Scalia wrote an opinion to go with it (can't remember if he was dissenting or concurring) stating that he doesn't believe unlimited discretion for mercy is required by the 8th Amendment. Another Justice (either Souter or Stevens) dissented, stating that since the 8th Amendment does require unlimited discretion for mercy, but in practice this results in unequal application (i.e. minorities get put to death more often than whites). Therefore, this Justice asserted, the death penalty violates the EP Clause. Given their assumptions based on the 8th Amendment, both Scalia and the other Justice were correct.

On to your clearer statement. "Fairness" has never been an absolute in constitutional jurisprudence. What is required is Due Process. Given the opportunities for appeal and mercy and all of the protection given to criminal defendants in our system, Due Process is certainly satisfied. Whether or not it's correct is not the issue, for constitutional jurisprudence. Ensuring correct results is of course a goal we should strive for, but the possibility of error in some small percentage of cases is no reason to throw the baby out with the bath water.

Someone who is imprisoned for life and dies in prison, only to have exonerating evidence revealed the next day, is no better off than someone who was executed the day before his exoneration. Even if the person is imprisoned for life and exonerated later, and set free while living, he still has been treated just as unfairly as the person who was executed. Perhaps there's some fundamental difference between our ideas of how severe execution is as a form of punishment. I can certainly think of many worse punishments.

2:12 PM


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