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The Unbearable Slickness of Being.....the NYT


The New York Times is a relentless and not especially honest crusader against the death penalty.  At one point recently, as Kent noted, the Times claimed it is now "undeniable" that the death penalty does not deter murder, a claim that is wildly and demonstrably false.  See, e.g., the research collected here by CJLF.

The Times' most recent zinger is in a sidebar by Adam Liptak.  The piece is an unalloyed whack at Alabama's judicial override in death penalty cases.  Under Alabama law, the trial judge may override a jury's recommended sentence, whether life or death.  Since on any number of occasions the override has resulted in the imposition of a death sentence, the NYT is having none of it.

You will not be surprised to learn that the examples Mr. Liptak presents are designed to make the override look as bad as possible.  Thus:

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired in 2001, said he had rejected one jury's recommendation that a white defendant's life be spared on the ground of racial equality. "If I had not imposed the death sentence, I would have sentenced three black people to death and no white people," he said at a sentencing hearing in 2000.

Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury's life verdict. "The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests," he wrote in a 1990 sentencing order.

Gads, this is really terrible!  How has it survived all this time?  Still.......still.......if you keep reading, you'll see, thirteen paragraphs down the page, and four from the end, one small and cleverly worded line that might tip you off, if you're very, very observant, that there's something you haven't been told.

The line is:

"[G]iven the political pressures they face, judges are far more likely than juries to impose the death penalty," Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama's capital sentencing system. Much has changed in sentencing law since then, and it is not clear that the system would survive a new look from the Supreme Court.

See the zinger?  C&C readers probably do.  I'm pretty sure most casual newspaper readers wouldn't.

The zinger is, "...in a 1995 dissent from a decision that upheld Alabama's capital sentencing system."

How's that, Mr. Liptak?  There was a Supreme Court decision that upheld "Alabama's capital sentencing system?"  You mean, like, the judicial override?  Lan' sakes alive, yes indeed!  And would that decision have a name?  Yup, although you won't find it anywhere in the article.  The name is Harris v. Alabama, 513 U.S. 504 (1995). It was an 8-1 holding written by that bloodlusting fanatic, Sandra Day O'Connor. 

It is true that Harris concerned an Eighth Amendment, and not a Sixth Amendment, challenge.  It is also true that it  preceeded Apprendi (by five years) and Ring (by seven), those being the decisions to which Liptak is apparently referring with his "much has changed" line.  But  --  and this is something else Liptak whistles past  --  the plurality opinion in Apprendi (and the part of Apprendi's analysis upon which Ring relies) said point-blank that the decision did not affect judicial overrides in capital cases. And five Justices (Scalia, Kennedy, Thomas, Ginsburg and Beyer) who voted with the majority in Harris were on the Court for both Apprendi and Ring, and are still there. Two other Justices who had not been appointed when Harris was decided are Roberts and Alito.

With this as the lay of the land, Liptak's toss-off that "it is not clear that the [Alabama] system would survive a new look from the Supreme Court" sounds a good deal more like abolitionist pie-in-the-sky than like serious reporting (this is assuming that conjecture is ever serious reporting, but one must remember this is the NYT).

That, however, is just minor stuff.  The major stuff is that the New York Times publishes an article about Alabama's override system that does not so much as mention, until about three-quarters of the way down, that this very system was examined by the Supreme Court and upheld in a lopsided ruling.  Not a word from that ruling is judged fit to print (to coin a phrase), and still less is there any fair summary of it, or any summary at all.  Instead, what we get  --  when we get anything  --  is a quotation from the sole dissenter, implying that the imposition of Alabama death sentences has nothing to do with, say, sadistic murders (which, again, go unmentioned), but only with boogeyman judges!

The Gray Lady gets grayer every day.

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