Scalia v. Souter On The Death Penalty

Today’s Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas’s death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other – that is, it’s an evidentiary tie. (There’s a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America’s death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent.” Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded “in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.”

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that “because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system.” Put another way: innocent people may be executed, but probably not that many, and there’s not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter’s three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter’s opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently – and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter’s opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn’t a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don’t reduce erroneous convictions. Souter’s argument only makes real sense – as the dissent notes – if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That’s not a narrow procedural ruling; that’s a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn’t even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don’t know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can’t have thought he’d win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter’s opinion was designed for all these purposes, as well as to spur further international debate on America’s use of capital punishment. Indeed, the international dimension of this case – which Scalia highlighted – is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order – discovered by 41 – increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it’s easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain’t so bad. I agree with MJ, commenting over at Orin’s place, though. I suspect that Scalia’s opinion was so much of a “smack-down” that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

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5 Responses

  1. Anonymous says:

    I agree with much that is said here. But after re-reading the concurrence, I think Scalia’s spat with Justice Stevens is more significant, at least for those of us who are Federal Courts junkies. Scalia demolishes Stevens’ theory of rachet-up review. I can’t tell you how many times in law school I had to hear about rachet-up review, and from law professors who had clerked on the Supreme Court. But Scalia takes a sledgehammer to it.

  2. Simon says:

    Anyone else notice that former CC guest Prof. Waters got a citation in n.3 of Scalia’s concurrence?

    I think Scalia maybe fears that Souter is ramping up to a Callins v. Collins-style declaration; from the conservative perspective, there is an ongoing attempt by liberals to abolish the death penalty by whatever means, and when you don’t think the Constitution forbids the death penalty, sometimes the anger boils over, as it certainly did here. Hence, Scalia’s warning “that the dissenters’ encumbering of the death penalty in other cases, with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it” should be understood as being less a project of making the death penalty less capricious, but rather, to inflict on it the death of a thousand cuts. I think Scalia sees what the dissenters are up to as being a project to hog-tie states to such an extent that it becomes practically impossible to execute someone, no doubt in the hope that some states will conclude that it simply isn’t worth the time, trouble and effort and abolish it; that is, abolition by the back door.

  3. Anono says:

    Why did Scalia explode?

    Isn’t that obvious? Because he thought that the dissent was citing crappy and overwrought studies.

  4. karl says:


    What crappy and overwrought studies”? Are you denying capital DNA exonerations? Are you denying that we have come within minutes of executing clearly innocent men even after they had exhausted all their normal avenues of appeal? Are you denying the press has identified four cases (all in which no DNA was present), Carlos Deluna, Cameron Todd Willingham and Ruben Cantu in Texas, and Larry Griffin in Missouri, in just the last few months where we killed someone only to find out there exists strong evidence of probable innocence? Or are the “studies” “crappy and overwrought” because they don’t fit your narrow ideological agenda.

    I think what I loved most in Scalio’s opinion isnt that it was factually incorrect (such as the numbers on death row or the number executed in this country), what I loved most is that no one else dared to sign on to his opinion.

  5. kim69 says:

    the effect of the death penalty is affect our sestym condems,many people have given a sentence called death penalty.. and were not sure if the suspect have done his crime,because some people have been mistaken identity… and were filipinos believe in haka-haka.. and death penalty sentence is immoral to our comandments in god..datzz all..