Thursday, April 15, 2010

If A Judge Thinks That The Death Penalty Is Unconsitutional, Then They Aren't Qualified To Be A Judge

Because they apparently haven't read the fucking United States Constitution.

The fifth amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

First, capital crime is explicitly mentioned. Second, "nor be deprived of life...without due process of law," which implicitly says that you can be deprived of life with the due process of law.

Lexington writes of Justice Stevens:
I don't agree with him that the death penalty is unconstitutional, I would certainly agree with him that it should be abolished.

Lexington's position is perfectly reasonable. Just because something is constitutional doesn't mean it ought to be done. But Justice Stevens and whomever else believes the death penalty to be unconstitutional are fucking idiots. Yes, yes, I know. They focus on the "no cruel and unusual punishment" clause, but the fifth amendment is pretty fucking clear on the point. It is constitutional and if you can't see that then you can't fucking read.


Withywindle said...

I.e., a majority of the Supreme Court between--what was it, 1975 and 1986? And now you understand, with a truly obscene passion, and a vocabulary worthy of Captain Haddock, the intensity of the conservative critique of liberal judicial philosophy.

Andrew Stevens said...

To be fair, the Supreme Court never ruled the death penalty unconstitutional. There was a de facto moratorium on it from 1972 to 1976 because Furman v. Georgia insisted that the death penalty be applied consistently. (This moratorium saved the life of Charles Manson which is why he have to watch him up for parole every few years, though there is no chance he'll ever be released.) Only Brennan and Marshall thought the death penalty was always unconstitutional all the time. One of the five who voted with the majority in Furman was Whizzer White, not notably liberal (he dissented in Miranda and Roe v. Wade, though he was appointed by JFK). In fact, White pointed out FLG's argument in Gregg v. Georgia in his answer to Brennan and Marshall.

I actually have great sympathy for Furman v. Georgia and I believe, after Gregg v. Georgia set down guidelines for the death penalty and reaffirmed its use, that this greatly improved the death penalty in the U.S. It has been extremely difficult for anti-death penalty advocates to find an innocent man who was executed after 1976. Of course, they pretend to have found dozens of such cases, e.g. the trumpeting of Gary Graham when he was executed in 2000. There is really no doubt at all that Graham committed the crime he was executed for. But it's child's play to find people who were executed prior to 1976 who were probably innocent.

Andrew Stevens said...

By the by, Stevens became more and more inclined to the view that the death penalty was anachronistic, but I don't think he ever held in an opinion that the death penalty was unconstitutional generally. (He did in specific cases like juveniles or the mentally retarded or particular methods of lethal injection.)

Withywindle said...

Huh. Stuff I had forgotten if I ever knew it. Thank you.

FLG said...


I'm entirely comfortable with the idea that a specific means of execution is cruel and unusual or even being concerned about whether due process was available in particular cases or even types of cases. However, I reject the idea that the death penalty is unconstitutional.

If Lexington was characterizing Justice Stevens' position, then maybe I'm attacking the wrong person. But there are many people who hold that the death penalty is unconstitutional. Full stop. That position is, quite frankly, complete bullshit.

Andrew Stevens said...

I totally agree with you. Brennan and Marshall clearly and (almost) explicitly believed that the Constitution meant whatever they wanted it to mean and this is obviously foolish. But you're attacking the wrong person. None of the Court's current liberals are such lackwits (reserving judgment for now on Sotomayor and whoever Obama appoints to replace Stevens); Lexington was mistaken in his characterization of Stevens's opinion which is much more nuanced than that. Stevens, along with Souter, was one of the sharper of the Court's liberals and all of them for the last twenty years or so, have been pretty sharp (with the exception of Ginsburg). To a large extent, the conservative critique is still attacking the Warren Court, which was as bad as they say, but most current liberal judges do not agree with Brennan, Marshall, Earl Warren, et al. Stevens voted with the majority in Gregg v. Georgia which explicitly affirmed the constitutionality of the death penalty (provided it met certain conditions). There is evidence that he has become more opposed to the death penalty since then, but I know of no case where he flat out called it unconstitutional.

Andrew Stevens said...

I found why Lexington believed this about Stevens. Stevens wrote an opinion in Baze v. Rees in 2008, which I was unaware of, in which he stated his opposition to the death penalty and seemed to state that he does now find the death penalty unconstitutional. (I'd summarize his reasons, but I'd rather urge people to read the opinion themselves. I do disagree with his reasoning, which is based more on previous Court decisions than on the text of the Constitution itself, but it's not out-of-left-field reasoning.) However, it was also in the context of his vote in the majority to affirm Kentucky's method of execution.

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