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Hall v. Florida, the Short Version

Kent discusses Hall v. Florida with the precision and analysis characteristic of him. In one respect, however, I dissent:  I think he gives the opinion too much credit.

My take is a good deal shorter. The object of the game is to hand off various components of the law of capital punishment to abolitionist-leaning groups until the death penalty is effectively squeezed out of existence.  This will be done without the Court's having to muster the intestinal fortitude to do it directly and, of course, without the approval of the much-vaunted consensus of the people, at least 60% of whom have supported the death penalty for the last four decades. It's  hard to figure which gets first place in today's handiwork  --  the arrogance, the artifice or the cowardice.

Couldn't this easily have been one paragraph?:  "The Florida statute on its face is consistent with this Court's holding in Atkins, but the unreasonably narrow construction applied by the Florida Supreme Court is not.  We vacate that Court's decision and remand for reconsideration under the statute as written."


Bill, your one paragraph rewrite is great. The problem is that it is not Kennedy's end game. I still believe that before he leaves the Court it is his goal to abolish capital punishment. He would proud to have that as his legacy instead of being the protector of states rights.

And I am sure, paul, that you'd be glad to see our democracy cheapened, all for the lives of vicious murderers. And another casualty--the rule of law.

Personally, I would have zero trouble voting for a politician who demagogued the Supreme Court were it to take such a lawless step. It would be very easy to point to the Constitution, which clearly contemplates capital punishment and whatever drivel is served up to justify (in the Court's mind) abolition and call the Court lawless and not deserving of respect. Such a politician could go so far as to say that if the Court is lawless, it cannot complain when others follow its lead and defy it.

I doubt that is where anyone wants to go--yet your favored result, abolition by judicial fiat, risks that.

Why do you think Paul wants to see that? I didn't read his comment that way.

Bill, your second paragraph is a good summary. The real problem is what can be done about it. Right now, I see the only solution is hoping one of the 5 in the majority is replaced by a Justice who sees things correctly. That isn't a comforting thought.

I've always maintained the Constitution could use some amendments in this area and others....

Like Kent, I did not read paul's comment as an endorsement of Justice Kennedy's work here or elsewhere in the death penalty area. Indeed, I thought it was critical of Kennedy, and wisely so.

My guess about Kennedy at this point is that he would just as soon see the USA eliminate the DP, but understands that the historical, cultural and precedential support behind it is too strong to permit him to vote for outright abolition at this stage.

I therefore guess that the name of his game is to keep providing the fifth vote for various kinds of narrowing, until the DP is so sliced-and-diced, and so boxed in, that he or a successor would be able to think to themselves that they could pull off the Kennedy v. Louisiana trick of saying, "Oh, gosh, look how narrow and infrequent the death penalty has become! It must not have a national consensus any more!!! So it goes bye-bye."

And what is driving state legislatures regarding the death penalty? Is it the consensus of their constituents or reactions to the legal maze created by the Court?

Thank you, Kent & Bill, for properly interpreting my comment.

As for Kennedy. I have personally witnessed him lecture on the subject of international law. And, yes, as Bill notes, he is enamored with the idea of developing and civilizing the law of other nations, especially so-called third-world and totalitarian countries. But, in his mind, as long as America remains one of a handful of nations that embrace the most uncivilized of criminal punishments he can't rightfully serve as a world spokesman on civility.

As for Hall. At least Kennedy, despite all of lip service about "consensus" (and regardless of whether it is of the states or professional medical organizations), was honest enough to admit that his Eighth Amendment capital case jurisprudence is really about his own "independent determination," a/k/a his own opinion on whether or not the death penalty is civilized.

Hate to go the conservative/liberal (Republican/Democrat) route, but the five states cited in Hall that have legislatively abolished the DP since Atkins fit that mold. As does the one state that has judicially abolished it. The the legislators and their constituents in those states are, by a strong majority, Dems.

I also believe that the chipping away at the DP by the Court has provided those Dems with additional ammunition in their assault. As has the anti-DP media coverage that permeates the airwaves. And don't forget about the impact of the Innocence Project's sensationalized cases.

The anti-DP movement is in some respects similar to the pro-SSM movement. But, IMHO, the later seems to more strongly based upon recent Court opinions than the former.

The only thing the Innocence Project has yet to do is come up with an executed person over the last 50 years or so who was actually innocent.

I do not think it is a good idea for the pro-death penalty movement to make claims that no innocent person has been executed or issue challenges as such to the innocence project. The reason for this is all human systems are subject to error. I probably hold a minority position in that I believe with 1,300 post 1976 it is likely at least one person was actually innocent and I do not see this as a reason to abolish the death penalty. Mistakes happen and sometimes people die, sometimes many people in the case of pilot error etc....

However, in the court of public opinion the never ending hunt for this one actually innocent person could be disastrous to the death penalty as it would refute the claims of perfection and give th anti DP crowd a lot of ammunition to not only eliminate the DP but roll back other sentencing laws.

So while it is always fun to gloat over your adversaries failures and humilation pointing out that Roger Coleman was really guilty does not accomplish much (except to gloat which is fun). I think the better tact is to concede that this type of error is possible and if it exists it isn't a reason to abolish the DP but a lesson to learn how to prevent it from happening again.

Without speaking for Bill, I think what he's doing is pointing out the intellectual dishonesty of many on the anti-DP side.

To your point, I think the death penalty has had some salutary effects on the criminal justice system and the willingness to admit errors.

I took, now it seems incorrectly, his prior posts on the subject as opposition to the death penalty.

My statement about Coleman is actually agreeing with Bill that the anti-DP crowd was quite humiliated and discredited by the later complete proof of his guilt. My point is while bringing up Coleman is an excellent example of the intellectual dishonest / gulibility / foolishness of those who championed his innocence, his guilt does not mean that there may have been an innocent executed out there.

My basic narrative in discussing "innocents-who-have-been-executed" has a few parts.

First, there is no proof of this for at least fifty years. Coleman blew up in their faces and Willingham is full of holes, such as (a) his wife and lawyer both say he did it, (b) the other side's expert admitted that he could not entirely rule out the possibility that it was arson, and (c) Willingham gave four different stories to the police about how he behaved when he "noticed" there was a fire in the house.

Second, at some point, there is likely to be proof of an innocent person's being executed, simply because of inescapable human fallibility. That said, however, the fact that there is no such proof over the last 50 years suggests that the degree of care taken is extraordinary by any standard, and at least equal to the level of care undertaken in other enterprises where we know human life is at risk, e.g., drug experimentation and space fight. This is not to mention more mundane stuff like using cars to travel, which we know in advance will cost tens of thousands of lives every year. We do it anyway because of the benefits we get in exchange.

The point we must press here is not that there is no danger, but that in light of what there is to be gained (to wit, justice), the danger is worth the risk.

The third argument is the one the other side simply refuses to acknowledge, and still less engage in: What is the cost of the decision NOT ever to impose the death penalty?

As this site shows again and again, the cost is that stone-cold killers who could have been executed but weren't kill again. It's no exaggeration to say that this happens all the time.

So if the abolitionists' point in this segment of the argument is that the DP should go because it risks taking innocent life, the answer -- a conclusive answer in my view -- is that, once it goes, we will lose vastly MORE innocent life.

And that's exactly what happens, year in and year out. Unlike the abolitionist argument, it does not rely on speculation or extrapolation.

Punishments, including the DP, are a social artifact undertaken against the backdrop of their social benefits and risks. It makes for some colorful outrage and street theater when an innocent person is executed (if and when this ever happens). But outrage and street theater are poor substitutes for thinking seriously about true extent of the consequences of the punishments you choose (or decline to choose).

When such thinking gets done, it is absolutely clear that imposing the death penalty will save more innocent life than abolishing it will. There is simply no serious argument to the contrary.

That, together with the obvious justice of it in one horrific case after the next, is conclusive evidence for keeping it.

In this context as in all others thought about by serious people, the question is not whether, at some point, you will make a ghastly error. The question is whether the error, though grievous, is worth the benefits we get in exchange for keeping the DP.

The answer, to me and the great majority of the American people, seems clear.

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