Thursday, December 9, 2010

A Peculiar Institution

Been busy preparing finals and wrapping up fall semester this week, but news from the anti-death penalty camp has been trending.

First came a New York Review of Books essay by former SCOTUS Justice John Paul Stevens (long time readers know of my affinity for Justice Stevens). In his review of sociologist David Garland's wonderful "Peculiar Institution: America's Death Penalty in an Age of Abolition," Stevens walks through the major Supreme Court death penalty decisions of the past 35 years (virtually all of which Stevens participated in) and denounces the death penalty from virtually every angle.

Most bitingly, he notes how death penalty jurisprudence largely turns on the personnel changes of the court, particularly the abysmally reasoned McLeskey v. Kemp (1987).

In 1987, the Court held in McCleskey v. Kemp that it did not violate the Constitution for a state to administer a criminal justice system under which murderers of victims of one race received death sentences much more frequently than murderers of victims of another race. The case involved a study by Iowa law professor David Baldus and his colleagues demonstrating that in Georgia murderers of white victims were eleven times more likely to be sentenced to death than were murderers of black victims. Controlling for race-neutral factors and focusing solely on decisions by prosecutors about whether to seek the death penalty, Justice Blackmun observed in dissent, the effect of race remained “readily identifiable” and “statistically significant” across a sample of 2,484 cases.

That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings. Justice Stewart, had he remained on the Court, surely would have voted with the four dissenters. That conclusion is reinforced by Justice Powell’s second thoughts; he later told his biographer that he regretted his vote in McCleskey.

As critics have long noted, McCleskey was the 20th century's Dred Scott decision.

Stevens also appeared on 60 Minutes to discuss other cases and gave his opinion on issues of today. The two segment piece is available for viewing online.

In today's NYT, columnist Nick Kristoff discusses the Kevin Cooper case in California, long a touchstone case for anti-death penalty advocates.

“California may be about to execute an innocent man.”

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.
He also links federal Judge William Fletcher's 100 page tour-de-force dissent in the Cooper case.
Kevin Cooper has now been on death row for nearly half his life. In my opinion, he is probably innocent of the crimes for which the State of California is about to execute him. If he is innocent, the real killers have escaped. They may kill again. They may already have done so.

We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves to get this one right. We should have taken this case en banc and ordered the district judge to give Cooper the fair hearing he has never had.
Folks, that may not sound very overwhelming, but you rarely find federal appellate judges declaring a petitioner "innocent of the crimes" for which they appear before the court (and signed by that many other judges).

Predictably, the pro-death camp isn't too happy with all of this. Some bloggers believe Cooper to be guilty, and find Justice Stevens' "conversion" to be nothing more than "chutzpah." But beyond emotional appeals, the pro-death advocates seem reduced to "because I said so," which doesn't really cut it.

Perhaps better reasoned and factual counter-arguments will be forthcoming (and if you find links, dear reader, please send them along).

1 comment:

dudleysharp said...

The pro death penalty say a lot more than that.

A factual deconstruction of Judge Stevens' death penalty claims

Justice John Paul Stevens' Hysteria: The Death Penalty

A legal deconstruction of Judge Stevens' death penalty writings

Justice Stevens' Odd Death Penalty Review
December 4, 2010 8:00 AM, Kent Scheidegger,