Death, Juries, and Scalia

by Alexander Cockburn

Listen to the exultant cry of Stephen Hawkins, executive director of the National Coalition to Abolish the Death Penalty: "This year has been the most favorable Supreme Court term for death penalty foes in 25 years." And from Virginia Sloan, who runs the Constitution Project, "This is a great day for our criminal justice system. The court recognized the jury's critical role under our constitution to decide all the facts necessary to impose the death penalty on someone."

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 12 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, Gerald Ford's appointee is certainly the most liberal on the Court, but the man writing those splendid words about the crucial role of the jury is the justice whose image has replaced that of James Watt as the liberal fundraiser's villain of choice: Antonin Scalia.

Scalia's 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, where 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 post-Waco Counter-Terrorism and Effective Death Penalty Act, which, among other horrors, junked the doctrine of habeas corpus; or the Hate Crimes statutes written into many states' 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, 7-2, the Arizona statute that allowed judges rather than juries to impose the death penalty. He rightly chided Justice Stephen Bryher, a Clinton nominee from the Kennedy stable, for inconsistency in first of all endorsing the right of judges to overrule the jury in tacking on enhanced punishment under hate crime statutes, and then in Arizona v Ring tacking the other way. Scalia gives this kind of pirouette the coarse put-down, "Death-is-different jurisprudence," and he makes a telling point.

The momentous Supreme Court ruling known as Atkins v Virginia concerns a case where a man with an IQ of 59 had committed a robbery and a murder, and was sentenced to death. The Supreme Court, 5-4, has just taken the view that times have changed and now it's not OK to put the retarded to death.

Scalia, in a dissenting opinion, made an argument in consonance with his view of the jury's paramount role, as expressed in the Ring decision. 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, not to mention Allen Chase. 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, while putting them away from their rest of their natural lives. He's consistent, and offers more respectable arguments in this area than Bill Clinton, who was asked his view of the Court's ruling in the light of his own decision as governor of Arkansas to OK the execution of Rickey Ray Rector in primary season, 1992. Clinton claimed that Rector had been of sound mind when he committed his crimes and was only incapacitated by his attempt to shoot himself in the head between the murders and his trial.

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 for 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 jury's refusing 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 was consistent, Scalia would recognize that the only inhibition on jurors being empanelled would be whether they have a material interest in the outcome of the case.

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 in an instant overturn the death sentences of 800 people on Death Row, almost a quarter of all the people facing execution in this country today. 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 U.S. 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.