The federal district court in Vermont has denied a defense motion to strike the US Attorney's Office's Notice of Intent to Seek the Death Penalty. The court's 57-page Memorandum Opinion is here.
The court essentially agreed with the defendant that the death penalty as presently administered falls short of constitutional standards, but held that, "Institutional authority to change this body of law is reserved to the Supreme Court."
This is a reminder of why it was so important to prevent President Obama from filling Justice Scalia's seat with a jurist who would be (relatively) more open to abolitionist arguments, and even more important to defeat Sec. Clinton with a candidate whose robust support for the death penalty is not in doubt.
But there is plenty to dislike about the judge's grandstanding . . . .
It's high time a the "struck by lightning" nonsense was put to bed. First of all, the analogy fails as you have to do something very very bad to get the death penalty. Second, the "struck by lightning" phrase was tied to idea that getting struck by lightning was cruel and unusual--um, how is that?
There's a boatload to dislike about the opinion and the whole abolitionist dog-and-pony show the district judge allowed to go on as an alleged "hearing." But at least, at the end, he had a sense of discipline.
The arbitrariness argument is so much baloney. As you suggest, the question is not whether Mr. X gets it and Mr. Y doesn't. That happenstance is dictated by federalism itself, a concept central to the Framers, and one that presupposes that some states will adopt the death penalty and others, for identical (or worse) crimes, will not.
No, the only question that counts for Eighth Amendment purposes is whether, when Mr. X gets the death penalty, he deserves it. That the also deserving Mr. Y didn't get it is a function of exactly the (occasionally) unmoored leniency that, in other contexts, liberals insist is an indispensable component of a system that is sometimes willing to grant mercy, even at the expense of justice.
"baloney" is too nice a phrase--the use of the word, "arbitrary" is Orwellian when viewed against the backdrop of our legal system. We have juries, plea bargains and all sorts of procedural niceties designed to benefit defendants as a class that it requires a disingenuousness that should simply not be part of judicial decisionmaking to ascribe differing outcomes as "arbitrary." In other words, the system's procedural liberality is used against it.
I have many times railed on the "cosmic fairness" argument. Guilty murderers simply aren't entitled to that sort of thing. That should go without saying.
" In other words, the system's procedural liberality is used against it."
Bingo.
Abolitionist hypocrisy is astonishing. They bellow for justice to be tempered by mercy. Then, when, every now and again, they hit the jackpot -- or just get lucky -- they claim that the consequent "inequality" is constitutionally intolerable.
Far out!