- The Washington Times - Tuesday, April 29, 2008

ANALYSIS/OPINION:

Should interpreting the Constitution smack more of knight errantry than a genuine search for the intent of its makers?

That question was center stage as Justice John Paul Stevens dueled with Justice Antonin Scalia in Baze v. Rees (April 16, 2008) over the death penalty in a detour from upholding the constitutionality of lethal injections. Justice Stevens consulted his evolving moral compass (he had previously endorsed the death penalty 32 years earlier in Gregg v. Georgia); and, his own experience, i.e., 33 years sitting on the United States Supreme Court in sublime tranquility where a falling pin can be heard. He concluded in the manner of a papal encyclical that, “[T]he imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ ”

Justice Scalia assailed Justice Stevens’ opinion with the ferocity of a gladiator. He roared at Justice Stevens’ for marginalizing or subordinating all experience with the death penalty but his own, which epitomizes a jurisprudence of idiosyncrasy: “The experience of the state legislatures and the Congress — who retain the death penalty as a form of punishment — is dismissed as ‘the product of habit and inattention rather than an acceptable deliberative process.’ The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most veiled condemnation, as stemming from a thirst for vengeance.’ ” Justice Scalia underscored that the Fifth Amendment expressly contemplates the death penalty by prohibiting a deprivation of “life” without due process and requiring a presentment or indictment by a grand jury to hold a person charged with a capital crime. To interpret the Eighth Amendment to proscribe what the Fifth Amendment permits is to make the Constitution war with itself and to impute nonsense to its makers.

Justice Stevens sallied forth with an arsenal of additional sophistries. He asserted the climb in statutes authorizing life imprisonment without parole destroys the incapacitation rationale for the death penalty. But life imprisonment may be foiled by escape. It does not foreclose murder of a fellow inmate. In addition, the threat of a death sentence can elicit cooperation from a co-conspirator implicated in murder. A lesser punishment can be promised in exchange for state’s evidence.

Justice Stevens harrumphed that a recent poll suggests public support for the death penalty dips when life without the possibility of parole is presented as an alternative option. Death penalty statutes will be repealed, however, when they fail to reflect majority sentiments. Moreover, no juror can be compelled to vote for death. Any juror who believes life imprisonment with no parole is indistinguishable from capital punishment can vote against death.

Justice Stevens disparages the absence of definitive proof that the death penalty deters. But reciprocally there is no definitive proof that death does not deter. A befuddling array of factors contributes to crime — for example, age, education, income, employment and local culture. Every methodology that has attempted to isolate the influence of capital punishment has triggered criticism.

Where, as with the death penalty, the evidence is inconclusive, the high court should not end more analysis and research by ipse dixit. Learned, attentive and deliberate legislators could conclude that a penalty that may save lives through deterrence is worth keeping until cogent evidence discredits the possibility.

Justice Stevens’ cerebral stumbles reach their apex in disputing the retribution rationale for the death penalty. Court decrees interpreting the Eighth Amendment have made executions less painful. Accordingly, Justice Stevens maintains (without ever asking a single family of Timothy McVeigh’s Oklahoma City bombing victims), the retribution experienced by the death penalty has been commensurately diminished, and can no longer justify capital punishment. Only demands for retribution that can be satiated by the rack and screw are cognizable under the Eight Amendment, which itself forbids such barbarity!

Finally, Justice Stevens fretted that the innocent may be convicted in capital cases in races to punish grisly crimes. Death prosecutions, however, characteristically attract skilled defense counsel — especially on appeal — and scrupulous scrutiny by the courts.

That explains why Justice Stevens did not cite a single instance where he believed an innocent person had been executed. Further, changes of venue to avoid a mob atmosphere and a higher required proof of guilt in death cases adequately answer Justice Stevens’ concern.

Republican presidential aspirant Sen. John McCain of Arizona applauds Justice Scalia’s modest view of judicial authority. Democratic presidential candidates Illinois Sen. Barack Obama and New York Sen. Hillary Clinton are electrified by Justice Stevens’ moral sermonizing. That oceanic divide should influence presidential balloting in November. The next occupant of the White House can be expected to fill one or two Supreme Court seats and hundreds of subordinate federal judgeships.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.

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