The Breakfast Table

Death Is Different. It Makes Scalia Crazy.

Dear Walter:

Some initial thoughts on Kansas v. Marsh, which we can chew over at greater length tomorrow perhaps: This was a case out of the Kansas Supreme Court, involving that state’s capital-sentencing scheme. As is true in many states, in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, they must weigh various statutory “aggravating factors” against “mitigating factors.” The aggravating factors are some of the shocking aspects of the crime (was it done for money, or was it especially heinous), and the mitigating factors are pleas for mercy (the defendant was abused as a child). If the aggravators outweigh the mitigators, you die; if the mitigators outweigh the aggravators, you live, and—adds the Kansas statute—the tie goes to the hangman: If the aggravating and mitigating factors found by the jury are equal—say, three apiece—the defendant dies too.

The Kansas Supreme Court had decided that such a system was unconstitutional. This morning the Supreme Court disagreed, holding that such a system does not violate the prohibition on “cruel and unusual punishment” set out in the Eighth Amendment. In a 5-4 opinion authored by Justice Clarence Thomas, the court explained why: The courts’ precedents, specifically its ruling in 1990’s Walton v. Arizona, provide that so long as a jury is given the opportunity to consider all the mitigating evidence, there is no reason to micromanage a state’s specific sentencing scheme. Jurors have the right to discretion, but there’s no constitutional rule requiring how that discretion be allocated.

In Thomas’ view, Walton decides Marsh,full stop. This is a point disputed wholeheartedly by Justice John Paul Stevens in his dissent today. Stevens says Thomas is using a dissent in Walton to mischaracterize the plurality’s decision on this issue.

Thomas goes through the requirements for a constitutional death-penalty statute set forth in the high court case law and says these baseline conditions are met in the Kansas statute. “In aggregate,” he writes, “our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision, and oblige sentencers to consider that information. The thrust of our mitigation jurisprudence ends here.” Thomas also goes out of his way to show that both the jurors and the state have ample opportunity to exercise their discretion; to bend and stretch to show mercy at any phase in the proceedings. He appears to be of the belief that italics have some linguistic superpower to confer a multiplicity of choices on the jurors who decide capital cases: “Imposition of the death penalty is an option once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing … a jury is permitted to consider any evidence related to any mitigating circumstance.” Why, at almost every stage of this scheme, it seems, the jurors have choices to make.Italicized choices. So many choices, in fact, that Kansas kindly relieves the jury of that final choice: If it’s really close, execution is automatic and the jury can go home.

Italicization as empowerment: I like it.

Thomas goes on to dismiss Justice David Souter’s dissenting argument—that death-penalty cases warrant special scrutiny because people, well, die—as both “irrelevant” and “beyond the scope of this opinion.” He writes that the dissenters’ “general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose,” adding, “[t]his court, however, does not sit as a moral authority.” Why sit as a moral authority when you can sit as a supercomputer?

But of course the real wackiness today comes with Justice Antonin Scalia’s concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia’s nail-spitting this morning: He attacks the 1987 study cited by Souter whose “obsolescence began at the moment of publication”; the “exonerees” who are “paraded by various professors” (from whom else could the word professors be a slur?); and the dissent, which merely “parrots articles or reports that support its attack on the American criminal justice system.” Attack on the American criminal justice system? Damn, where are my italics when I really need them?

Now, why, you may be wondering, does Justice Scalia who is—let’s recall—on the winning side of this case, feel the need to unload with this scorched-earth diatribe? Why isn’t he willing to grant even an inch? A “to be sure”? A nod to the poor representation some capital defendants receive in the trial courts, or the screw-ups that do in fact happen in crime labs? Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side?

Justice Souter’s dissent in this case is itself hardly a scorcher. He mainly urges that since the Kansas statute mandates death even in “doubtful cases,” it may be worth pushing the pause button. He suggests, again, that “death is different” because, to most of us, death really is different. This alone seems to be what sends Scalia over the edge.

So, a question: How is it that Scalia always manages to have it both ways? He and Thomas paint the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a “moral” process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called “innocent” exonerees. He isn’t dispassionate here; he’s hardly even rational at points. How can he assert that death isn’t different, when it clearly drives him to the brink of insanity?

Scalia consistently urges us to disregard the whims of the international community when deciding U.S. law, then today asks the dissenters to hold their powder before “impugning” the American criminal justice system “before the world.”

And while I have you, I wondered what you think about one other interesting aspect of the Stevens dissent: his argument that the Supreme Court need not have taken this case because the high court of Kansas had already ruled on a Kansas statute. “A policy of judicial restraint would allow the highest court of the state to be the final decisionmaker in a case of this kind,” Stevens writes. Are the court’s liberals embracing this language of judicial “activism” and “restraint” as a sign of political victory, Walter, or defeat?