Capital Defense Weekly

Baze errata

After searching through a fair amount of postings and news stories on Baze v. Rees, srom from several law profs I greatly admire, here, here, here & here, and some from a few commentators I likewise admire, , here, here, here & here, a few of my reflections on the opinions weren’t covered.

First, lethal injection litigation will go forward on lethal injection. The standard suggested by the plurality may already be met in a few of the challenges currently making the rounds, Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard.

Second, the Chief’s lead opinion could have used one final round of fact checking. Starting with the first paragraph and continuing through out the body of the opinion the Chief sacrificed technical accuracy for what was a truly solid argument. The Chief repeatedly noted that 36 states have the death penalty and lethal injection; specifically “[t]hat progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty” & “Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States.” Those statements are ncorrect, as just 35 states use lethal injection with Nebraska currently having a death penalty but no means to implement it (electrocution, that state’s only method, was recently invalidated). I know it may sound trivial, but this small error kept rubbing me the wrong way. The Chief in footnote one indicates that Nebraska no longer uses electrocution but this footnote appears not to have been made to “synch” with the rest of the opinion.

Third, dicta has meaning. Four Justices, in addition to Justice Stevens, appear to indicate some concern about the death penalty beyond the facts presented here. There was no need for the Chief, as well as, Justice Breyer & Alito, to reference, repeatedly, the narrowness of the opinion and that the Court was not addressing the constitutionality of the death penalty itself. The narrowness of the opinion was self-evident and there was no need for the Court to go to the pains it did to mention that fact “[r]easonable people of good faith disagree on the morality and efficacy of capital punishment…” While trying to interpret dicta is always an exercise in futility, when five justices arguably share similar tones and style in their dicta the reader has to take note.

Fourth, Justice Scalia’s unrepentant rage at Justice Stevens appears to have done what his rant in Casey v. Planned Parenthood did more than a decade ago, drive a wedge in to the conservative coalition. Justice Scalia’s rant was unnecessary and, as history suggests, likely counter-productive. The dicta noted above may have something to do with the forcefulness of Justice Scalia’s concurrence. For a purportedly brilliant, jurist, however, he does a lot of dumb things, this concurrence was one of them, as he has risked alienating several of his colleagues.

Fifth, Justice Thomas’s “originalist” approach leads to more questions than it answers. I am hoping to address some of those questions in a future post or posts, however, those will have to wait for another day.

Finally, Justice Scalia rifts for some time on the “life” portion of the Due Process Clause (“No person shall be … deprived of life, liberty, or property, without due process of law”) as indicating that the death penalty is inherently constitutional. He noted his position in light of Justice Stevens concurrence that stated he (Justice Stevens) now opposes the death penalty. Justice Scalia further stated that Justice Stevens position is simply “judicial fiat.” What Justice Scalia seems to miss is that the Founders merely presumed that a “due process of law” must exist that is capable of taking life. What defines “due process” is, however, inherently, a judicial determination and had been for centuries prior to our Constitution. Justice Stevens position is that the process that now exists simply does not provide “due process.” Far from judicial fiat this is what judges do, determine what procedures are appropriate to guarantee the vindication of a right, to guarantee “due process”. One may disagree with Justice Stevens, but the vast majority of lawyers believe his ultimate position, that the death penalty is unworkable, is correct.