Death, Juries and Scalia
by Alexander
Cockburn and Jeffrey St. Clair
June 28, 2002
Amid all the assaults on the Bill of Rights, the trashing of
the Bill of Rights in the Patriot Act, the denial of habeas corpus to citizens;
amid all this, in the span of one week, the US Supreme Court has issued rulings
almost beyond the dreams of the most ardent civil libertarians.
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 drugs 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 which 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 that now it's not okay to put the retarded
to death. (Some might say that the only downside to this decision is that it is
no longer possible even to imagine George W. Bush being put on Death Row.)
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
okay 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 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 US
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 2000 years to St Paul). What an excellent spring board for
an invigorated campaign to end the barbarism of judicial killing.
Alexander
Cockburn and Jeffrey St. Clair are the authors of 5
Days that Shook the World: Seattle and Beyond (Verso, 2000), and the
editors of Counterpunch, the nation's best muckraking newsletter:
www.counterpunch.org