Sunday, May 04, 2008

Judges' Role

Death Ruling Reveals Differing Views on the Role of Judges
Los Angeles Daily Journal, May 1, 2008, at 6.

In the weeks leading to the Supreme Court's decision in Baze v. Rees, 553 U.S. __ (2008), the ABA Journal quoted attorney Thomas Goldstein, who said that the current round of litigation over the death penalty - dealing with the constitutionality of lethal injection as administered - "doesn't advance the goal of abolition one inch." I criticized this statement as "at best naive" (and likely dishonest).

My response, which to its credit, the ABA Journal published, asserted that "[o]ne of the main arguments for doing away with the death penalty is the cost associated with it. The cost has nothing to do with the actual administration, i.e., serving the three-drug cocktail, and has everything to do with dragging the process out and therefore raising the cost of litigation. In that sense, this round has everything to do with abolishing the death penalty.

"Furthermore, to those advancing this cause, every delay is seen as a victory. The ultimate goal is to frustrate the proponents of the death penalty into submission, declaring such nonsense that we 'shall no longer tinker with the machinery of death.'"

Recently the court finally, and not surprisingly, ruled that the current three-drug cocktail protocol in administering the death penalty is constitutional. Chief Justice John G. Roberts' plurality opinion observed that the Eighth "Amendment prohibits ... wanton exposure to 'objectively intolerable risk,' not simply the possibility of pain." He further observed that we couldn't have the death penalty with no way of administering it.

What was interesting about the case, however, with the multiple opinions, was how the justices see their roles as judges. And at least one justice, John Paul Stevens, may indeed no longer be willing to "tinker with the machinery of death."

For the most part, it seemed the discussion dealing with the proper role of the judiciary was a response to Stevens' condescending concurring opinion in which he observed that the decision by the people, through their representatives, to retain the death penalty is "the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty." Stevens further thinks it is the judiciary's province to reexamine the question of whether it is "time to Kill the Death Penalty ... The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived." He then concluded "that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

What was surprising, and perhaps out of line, about Stevens' opinion was basically his call to "Kill the Death Penalty" in a case where that issue had not been raised.

Justice Antonin Scalia, joined by Justice Clarence Thomas, submitted a concurring opinion, simply to provide a "needed response to Justice Stevens' separate opinion." According to Scalia, Stevens' "conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than the courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice."
Similarly, Roberts' opinion, joined by Justices Anthony Kennedy and Samuel Alito, recognizes the limitations placed on the powers of the judiciary. "Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures - a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death." Implicit in so holding, the chief justice also recognizes that these endless rounds of litigation, dragging out these cases, needs to end.

Stevens makes another subjective judgment call that some may take issue with. He declares, as chief moralist, that "[i]t is unseemly - to say the least - that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets." Now he seems to be declaring society cannot even place greater value and hence show more compassion for our pets versus convicted murderers. Somehow, it would be "unseemly" to treat the former better than the latter.

The timing for this discussion could not have been better. With the election season looming, we have to decide what kind of judges we want nominated by the next president (even though that decision may be considered by some a "product of habit and inattention" at best, and "unseemly" at worst). Sen. John McCain has already promised to appoint judges in the mold of Roberts. I would be curious to see who Sens. Hillary Clinton and Barack Obama see as models for future appointments.