Wednesday, April 30, 2008

Finals Time

Yessirrreee. It's the end of April and that means it's finals time. The scrooge of law school. I mean, on the flip side, it means I get to spend hours on end in a room (see below) and finally learning and putting together what I was supposed to learn all semester long. So there is that added benefit. I have election law today at 630pm. Wish me luck! Anyhow, this pretty much means I won't be posting for two weeks or so.... unless some ridiculous Court opinion comes out. But until about the 10th of May, I'll probably be out of blogging commission. Anyhow, finals awaits, and, indeed, they wait for no student. So, peace out for two weeks. I will (hopefully) return (in good shape and intact). Cheers!

Monday, April 28, 2008

Crawford v. Marion County Opinion Announced: Justices Divded on Burden Level

The Supreme Court, today, released its highly anticipated opinion to Crawford v. Marion County. The opinion was split 6-3 (Stevens, Roberts, Kennedy affirming; Scalia, Thomas, and Alito concurring; and Souter, Ginsburg, and Breyer dissenting) with the big dispute being what level of burden voters suffered as a result of the Indiana voter ID law. This was important because the higher the level of burden found, the higher standard the Court would apply. The lead opinion, authored by Justice Stevens, found the level of burden to voters to be indeterminate. As a result, Justice Stevens affirmed the voter ID law, applying a rational basis test upon the voter ID law. Here is a break down of the opinions.

Lead Opinion: Stevens, Chief Justice Roberts, Kennedy

Starting off with a brief overview of the facts of the case, Justice Stevens quickly found his way to the balancing test found in Anderson v. Celebrezze. The Anderson test stated that a court, when evaluating a constitutional challenge to an election regulation must weigh the asserted injury to the right to vote against the "precise interests put forward by the State as justifications for the burden imposed by its rule."

The Court then looked at the interests Indiana put forward justifying their voter ID law:
  1. deter and detect voter fraud,
  2. valid State interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient,
  3. preventing voter fraud in response to a problem that is in part the product of its own maladministration-- namely, that Indiana's voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana, and
  4. interest in safeguarding voter confidence.
In addressing the state interests, Justice Stevens first tackled voter fraud. He began by conceding the record contained no evidence of any voter fraud in Indiana's history. But in balance, Justice Stevens articulated instances in which historians and journalists had documented voter fraud in American history. In footnotes, Justice Stevens cited Boss Tweed, from New York (1868), an example from 2004 in Washington state upon which one example of in-person voter fraud took place, and an example from 2003 in the Democratic primary for East Chicago Mayor- though the fraud was through absentee balloting, not in-person voter fraud. He summed up by stating the State has a legitimate and important "interest in counting only the votes of eligible voters."

In respect to inflation of voter rolls, Justice Stevens pointed to a 2005 newspaper article which indicated sloppy record keeping and a decree by the Federal Government alleging violations in United States v. Indiana.

In regards to voter confidence, Justice Stevens stated that the State has has an interest in public confidence in the integrity of the electoral process as such integrity encourages citizen participation in the democratic process.

Justice Stevens then went into discussion of the burdens Indiana voters faced by the voter ID law. More specifically, Justice Stevens pointed out, the Court needed to focus on those burdens "imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirement of the voter ID law."

Justice Stevens then concludes that, "for most voters...the inconvenience of making a trip to...[gather] the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." In sum, he seems to state that the burden facing the interested voters isn't too troublesome.

This, however, is contradicted by Justice Steven's address of the petitioner's presentation of evidence. Based, on the "evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." Justice Stevens then reviews where the evidence is deficient to make a determination on the burden.

Before concluding, Justice Stevens made mention of the partisan political issue concerned this case, noting that the Republicans in the General Assembly voted in favor of the voter ID law though Democrats were unanimous in opposing it. He addressed this concern by stating that if political partisanship were the sole, or significant, reason for the decision to enact the law, then indeed, a high stand of scrutiny would apply. But, if a nondiscriminatory law is supported by valid neutral justifications, than those neutral justifications should not be disregarded simple because partisan interests may have been one source of motivation for the legislature.

Justice Stevens then concluded that "when we consider only the statute's broad application to all Indiana voters we conclude that it 'imposes only a limited burden on voters' rights.' The 'precise interests' advanced by the State are therefore sufficient to defeat petitioners' facial challenge."

Concurring: Scalia, Thomas, Alito

In concurring, Justice Scalia applied a different test. Instead of the Anderson test applied by the lead opinion, Justice Scalia applied the test articulated in Burdick v. Takushi. Burdick, and reaffirming cases, have implemented a two-step approach: "Strict scrutiny is appropriate only if the burden is severe. Thus, the first step is to decide whether a challenged law severely burdens the right to vote. Ordinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe. Burdens are severe if they go beyond the merely inconvenient."

Justice Stevens then went on to articulate the burdens facing the affected Indiana voters. In balancing the burdens of the affected Indiana voter, against their right to vote, Justice Scalia found the burden to be "minimal and justified" because it does not "even represent a significant increase over the usual burdens of voting."

Dissent: Souter, Ginsburg

In his dissent, Justice Souter also applied the Burdick test Justice Scalia applied. He however, found the burden on voters to be much heavier than what Justice Scalia found. Pointing to a poor public transportation system, lack of locations for voters to get their IDs verified, cost of getting birth certificates, and the number of times voters have to do this (every election), Justice Souter found this to be a heavy burden indeed.

He then points out that the number of people in which this might be affected was significant. He points out that the District Court found that roughly 43,000 voting-age residents lack the kind of identification card required by Indiana's law. These people are likely to be indigent or elderly, so they likely would not have a car, thus making the task of obtaining an ID incredibly difficult, per the reasons explained above. As a result, Justice Souter found the State would fail the Burdick test, and voted to vacate the judgment of the Seventh Circuit and remand for further proceedings.

Dissent: Breyer

Justice Breyer, in a separate dissent, stated he would "balance the voting-related interests that the statute affects, asking 'whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." Justice Breyer highlighted the burden levels found by Justice's Scalia and Stevens and chose to disagree with them. He believed the burden was high. He then pointed to two other states, Georgia and Florida, who had lower burdens and then explained the record didn't provide a "convincing reason why Indiana's phot ID requirement must impose greater burdens than those of other States." In conclusion, while he acknowledged that the Constitution doesn't forbid Indiana from enacting a photo ID requirement, the statue imposed a disproportionate burden upon those without valid photo IDs.


I simply cannot agree with this opinion. This opinion, for all the Justices', turned on the level of burden the affected Indiana voters carried when voting under the voter ID law. This level of burden then determined what standard of scrutiny would apply. Justice Scalia believed the burden was minimal. Therefore, a lower standard of scrutiny should apply. Those in the dissent believed there was considerable burden imposed on the affected Indiana voters. Therefore, a higher level of scrutiny should apply.

Justice Stevens, however, couldn't determine what level of burden the voters carried. But, in this confusion, he went ahead and applied a legitimate state interest scrutiny. I simply cannot accept this. When the voting rights, a fundamental right, are being burdened, the choice, in ambiguity, shouldn't be rational basis, but strict scrutiny. The Court should err of the side of protecting voter's rights against the tyranny of the State.

Justice Stevens, though holding the burden wasn't significant, did only a superficial analysis to explain his holding. Instead, he spent the majority of his "burden analysis" on why there wasn't enough information in the record to determine the "magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." If Justice Stevens was so sure that the burden wasn't significant, why then, did he spend so much time articulating the lack of evidence? The fact of the matter is, both parties had very little strong evidence in their favor. Justice Stevens recognized this, yet still found against the voters. I am simply confounded as to why the Court is so deferential to the government when a fundamental right was at stake. The deference should be to the voter.

Even Justice Steven's use of the evidence is questionable. While the State's interests, in theory, seem significant on its face, there is simply no evidence presented to suggest these interests are event in jeopardy. For example, in supporting the State's position in regards to voter fraud, Justice Stevens points to three instances of voter fraud. However, the instances are hardly convincing to support the idea voter fraud exists today, in Indiana. First, the points to instances of when Boss Tweed ran New York in 1868. I'm all for stare decisis, but it's simply pointless to point to an instance of voter fraud 150 years ago as evidence that voter fraud could happen today. The political and electoral simply has simply evolved too much to even make the comparison.

His second example, the Washington fraud case uncovered only a single instance of voter fraud. A single instance means that most people are not committing voter fraud. Simply because one person committed voting fraud in Washington doesn't mean there is in-person voting fraud being committed today in Indiana.

Thirdly, his last example wasn't even on-point. The voter ID law applied to in-person voting, yet his East Chicago mayor example was an example of voter fraud in the context of absentee voting. Indeed, absentee voting is an issue that is of deep concern, but this is simply not within the scope of the question. Using this as an example only highlights the weakness of Justice Steven's argument.

Additionally, I also felt the Court dropped the ball when it came to the "political issue." By allowing partisan statutes to be passed so long as there is an accompanying "neutral justification" will only promote greater introductions of partisan statutes all cloaked by "neutral justifications." If it looks like a sheep but growls like a wolf, it's probably a wolf. The partisan divides in this country are not to be underestimated. Understanding the Court's desire to stay out of political issues, the Court needed to, at the least, make a statement that it will not be the arbiter of political issues. They failed to do this. And this I fear might set the precedent for the biggest legacies of this case.

In sum, I feel Justice Stevens set a tremendously low bar for States to overcome electoral fraud challenges. The Court applied the Anderson test to balance weak evidence supporting a State interest against an indeterminate burden imposed Indiana voters. In balancing these out, the two arguments appear to cancel each other out with their weaknesses. In this case, the tie should go to the People. Instead, the Court has given the victory to the Government and partisanship. A very troubling victory, indeed.

Sunday, April 27, 2008

Playoffs: Bare Animus style

I know everyone's all hyped up about the NBA playoffs and the NFL draft, but the real story is taking place at USF's Negesco Field. Yes, ladies and gentleman, I'm talking about USF Law Flag Football - Bare Animus. Here's a slide show of our playoff victory over our first round opponent. Some undergrads. "Both teams played hard, my man. Both teams played hard," said Rasheed Wallace. Enjoy:

Again, very thank you very much to our favorite fan, Kristen, for taking the pics.

Saturday, April 26, 2008

U of Georgia doesn't like Justice Clarence Thomas

Apparently folks down in Georgia don't take a particular liking to Supreme Court Justice Clarence Thomas. As the commencement speaker at the University of Georgia, the flagship public university in his home state, he has apparently sparked a lot of controversy. According to the article, the university is going through the process of changing its sexual harassment policy and some faculty members think having Justice Thomas speaking sends the wrong message.

This is just pure stupidity. While I may not agree with very many of Justice Thomas' opinions (and I find his giving a commencement speech ironic given his involvement with arguments while on the Bench- apparently now he has something to say...) but Justice Thomas deserves the respect a Supreme Court Justice should be afforded. Even granting his issues with his confirmation, this has no bearing on his ability to share some life lessons with graduating students. Justice Thomas has worked hard to get where he is. Not everyone becomes a Supreme Court Justice. It's a unique path in life and I am very certain Justice Thomas has something to say about the matter. The University of Georgia is simply embarrassing itself. I think the Volokh Conspiracy got it right when suggesting the school should switch with Northwestern University Law School to get Jerry Springer.

I also share the same disgust with my alum, UCLA, who is having Bill Clinton as its commencement speaker. Apparently the Daily Bruin is upset with this, claiming him to be a "thoughtless" and "poor choice." Spoiled kids have it tough.

Thursday, April 24, 2008

Professor Paul McKaskle Retires from USF Law

Professor Paul McKaskle is retiring from teaching here at USF Law. He is nothing short of legendary at this fine institution. I had him as a professor for both Civ Pro I, Civ Pro II, and Evidence and will never have another professor like him.

Professor McKaskle was one of the best. He was one of my favorite teachers. Ever. He always had time to speak to students. He was always there to offer honest advice. He kept the most flexible office hours. And though I sometimes wondered if he could hear the students speaking in the back room (he did fly helicopters for the Navy when he was a young man) he always answered questions intelligently. And as dry as civil procedure is, Professor McKaskle made it interesting to be there by understanding his material inside and out, and by never taking himself too seriously. Quick to make a joke, Professor McKaskle made it hard to fall asleep in class, even on Friday mornings. In fact, Professor McKaskle is so highly thought of that our flag football team named our fall season team after him in his honor when we found out he was retiring.

Professor McKaskle, first made an impression upon me on the first day of Civ Pro I when he pronounced my name correctly. While this may not seem like a very impressive achievement to some folks, having a man in his 70s pronounce a Chinese surname correctly was impressive enough for me. From there, he delighted all of us with his dry humor, hilarious stories of the past, dead on point social commentaries, lectures that, literally, have not changed (I got a set of class notes from a friend who took Civ Pro with him the year before and everything, from the says of the rules to the timing of the jokes were the same), historical notes on cases, and his occasional runnings into the wall ( I kid you not- the class was stunned into silence). To give you a little flavor of Professor McKaskle, here is a little blog commentary I found from a posting he did on the Volokh Conspiracy (I had no idea he read blogs) :

I'm surprised on a blog hosted by a bunch of law professors that there has been no comment on the number of male students who wear baseball caps in law school classes (whether put on forward or backward). In my school the University went to considerable expense to put a roof over the classrooms, but a surprising number of students apparently haven't noticed. Is there a rational reason for wearing baseball caps in classrooms, or is it simply a fashion statement of some obscure nature?

Classic Professor McKaskle. Some may think he's just "old fashioned" but to those of us who have had Professor McKaskle, it's hilarious. I can picture him saying it in my head; especially an emphasis on "considerable expense."

But, as all great professors must do, Professor McKaskle must retire. Yesterday, the school held a tea and coffee reception for Professor McKaskle, Professor William Bassett, and Professor C. Delos Putz (I did not have the privilege of taking classes with the latter two professors, so it would be dishonest for me to pay homage to them- though, indeed, they were great in their own rights). It was a very classy affair. It was well attended and there were giant cards for the students and others to sign.

I spoke with Professor McKaskle at the reception and he seemed to be enjoying himself. As usual, Professor McKaskle had on his "happy to see you" grin when I shook his hand (a surprisingly firm grip I might add). After congratulating him on his retirement and asking what he's going to do next, I didn't much know what else to say. A flag football teammate of mine told me I should tell him about our football team. So I did. I told him we had named our flag football team after him when we heard about his retirement. I told him we had made it all the way to the championship game, but lost to a team of undergrads. Professor McKaskle then paused for a moment, his grin growing wider, before telling me, "funny, I didn't read about it in the Chronicle."

I laughed. I couldn't help myself. I'm going to miss those jokes and his sense of humor. I'm going to miss seeing him walking around the halls or seeing him wait for the elevator after he gets out of class, observing the students mill around Kendrick Locker Walk.

I remember, coming out of my Civ Pro I final, and seeing him standing on the steps, waiting for us, first semester 1Ls, walk out of our final. Wearing his silly grin, at first I couldn't figure out why he was standing there. No other teachers did that. My undergrad professors could care less. It quickly dawned on me that this was a man who cared about his job, his craft, and his students. Walking out of that final, finishing up our first 1L semester, was a special accomplishment in and of itself, and he wanted to be there to watch us succeed by walking out and completing his test. Just like he has seen over 30 years of USF students succeed before I came to his class. It's a darn shame other students who come after me won't be able to enjoy Professor McKaskle. But, this being USF, and with the quality of dedicated and intellectual academic staff, there will be other McKaskles. But none like him.

I thought of that moment after my 1L final as I shook Professor McKaskle's hand to say good by, that day at the reception. I don't think I, or other students, will ever truly be able to articulate how "cool" Professor McKaskle was and the impact he had on our lives. He truly was a student favorite. And what ever he ends up doing with his retirement, I hope he enjoys it with his wife. He's given over three decades of his energy to this academic institution. Few men could do the same. I wish him only the best in his golden years. Good luck on retirement Professor McKaskle and thank you for your wisdom and dedication. There will never be another like you at USF Law. Or in any law school. Enjoy your retirement to its fullest.

Wednesday, April 23, 2008

SCOTUS hears "Millionaire's Amendment" election law case

Yesterday, SCOTUS heard Davis v. Federal Election Commission. As posted by the Court, Section 319 of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act) created the "Millionaire's Amendment." The three judge-district court found that Congress enacted section 319 to achieve equity between congressional candidates utilizing personal funds for their campaigns and candidates relying mainly on contributed funds. Under the statute, when candidates for the United States House of Representatives exceed $350,000 in personal campaign expenditures their opponents may be entitled to receive:
  1. contributions from donors at triple the statutory limit;
  2. contributions from donors who have reached their statutory limit for aggregate campaign donations; and
  3. coordinated expenditures from party committees in excess to the statutory limit.
To effectuate application of section 319, the statute also imposes significant notification and disclosure obligations upon self-financed candidates. The questions presented are:
  1. Whether the three-judge district court erred in finding that Congress's attempt to equalize a potential imbalance in resources between congressional candidates violates neither the First Amendment nor the Equal Protection Clause of the Fifth Amendment of the Constitution.
  2. If equalizing a potential imbalance in resources of congressional candidates is constitutional, whether the federal statutory provision accomplishes the stated purpose.
In this case, Jack Davis is arguing his rights were violated by the "Millionaire's Amendment." in opening, Mr. Davis' counsel, Andrew D. Herman argues, "this case involves the constitutional question of whether the government may regulate the personal spending of a candidate on behalf of his own campaign. This is an activity that constitutes political expression at the core of the First Amendment, yet BCRA Section 319 seeks to deter and, failing that, penalizes such protected political expression. Even this Court finds that the harms upon speech of Section 319 are modest, the provision still fails to satisfy constitutional standard. It furthers no legitimate governmental purpose and conversely increases the undue influence of contributions upon Federal candidates."

In sum, he argues that the Millionaire's Amendment's purpose of "leveling the playing field" between congressional candidates who are self financed and not self financed is not a compelling state interest. And, even if it were a compelling state interest, the Amendment could be drafted more narrowly to meet its stated purpose.

The background for this case is Buckley v. Valeo. In Buckley v. Valeo, the Court found the state interest in preventing actual corruption or the appearance of corruption was a compelling government interest. And limits on campaign contributions was solution narrowly tailored to fit that interest. The Court, however, did not apply strict scrutiny, however, because limiting contributions was not a direction burden on speech. Campaign donations are more symbolic, in the sense that it articulates support for a candidate, not articulating a specific point of view on a specific issue. As such, a diminished form of strict scrutiny was applied.

In regards to expenditures, however, the Court found no compelling government interest in limiting independent expenditures. People are speaking directly about issues and it's impossible to corrupt an issue. As to the idea of personal expenditures, the Court found there should be no limit because it's impossible to corrupt one's self. This meant millionaire's could spend as much of their personal treasury as they'd like. Any cap on this would be a direct burden on their speech.

The Congress then passed the Millionaire's Amendment to "level the playing field." If a millionaire was going to use his personal war chest, the opposition candidate would get some additional benefits to even it out (see above.) This intersection between where personal expenditures for one's candidacy and personal contributions to an individual candidate is where the issue lies.

In arguments, Justice's Alito Scalia, and Kennedy seemed to warm to Mr. Davis' argument. Scalia and Alito point to the Buckley framework to note that the seminal case did not stand for "leveling the playing field." Buckley stood for preventing corruption. These are two distinct government interests. As Mr. Herman pointed out, in legislating against corruption, the government legislates uniformly, it doesn't take a side. When leveling the playing field, the government inherently takes a side, that of whom is being balanced out in favor of.

In addition, Justice Scalia pointed out it wasn't the government's job to "level the playing field." Candidates will always have certain advantages over each other. Simply because one candidate has a silver tongue doesn't mean the government can compel him to speak with pebbles in his mouth.

Justice Kennedy seemed most concerned with the idea that the part of the Amendment which limits party support to self-financed candidates, but allows party support for non-self-financed candidates. This, Justice Kennedy states, provides differential treatment of the candidates vis-a-vis support from their respective parties, and was "problematic." He was insistent upon this theme even when General Paul Clement argued on behalf of the government, despite General Clement pointing out that the statute couldn't be invalidated on that point because Mr. Davis never claimed this to be an injury.

Seeming to be on the side of Mr. Herman, Chief Justice Roberts' first comment seemed to sum up his entire thinking: simply because your opponent receives more money, and thus more speech, does not necessarily mean the "Millionaire's" speech is burdened. The Amendment does not prevent the self-financed from raising funds publicly, nor does it cap how much personal money the candidate can spend. In sum, there is not a limited amount of speech; simply because one candidate speaks doesn't mean the other candidate speaks less.

Justice's Ginsburg seemed to agree somewhat with Chief Justice Roberts. The government is not taking sides by allowing the non-self-financed candidate to raise more money. Therefore, the government is not speaking. Nor is the government restricting any speech. The self-financed candidate's spending of personal money is limited only by his net worth. Lastly, Mr. Herman argued that the Amendment burdened speech because it deterred speech: knowing the opponent would receive more lucrative fund raising opportunities, this might deter him from self-financing, or using less personal money. Justice Ginsburg saw no evidence of this.

Interestingly enough, Justices' Souter, Breyer, and Stevens did not have much to say. And of course, Justice Thomas did not say a word.

In all, though it seems close, it seems as if the Amendment will be upheld. The majority will likely consist of Roberts, Ginsburg, Souter, and Stevens, and Breyer. The minority, who will favor striking down the law, will likely consist of Scalia, Thomas, Kennedy, and Alito. Despite my prediction, Alito appeared to be sort of a wild card. He asked pointed questions on both sides. The same could actually be said for Roberts. So he too may play a wild card role.

One thing I found to be interesting, and Professor Rick Hasen of Loyola Law also said, was that, despite the government's entire merit brief being based on the fact the plaintiff suffered no injury and, therefore, had no standing, there was little mention of it in oral arguments. It should be interesting to see how its addressed in the opinion.

Personally, I would find to strike down the law. While I whole heartily agree with the idea of campaign finance, I cannot agree that the government "leveling the field" is something the government should be doing. While too much money in elections is problematic, I'd much rather have the money in the elections than limit the speech of candidates. I simply cannot find the government interest in "leveling the field" compelling. The government should not be in the business of picking sides.

I understand that by doing away with the Amendment it would actually limit speech. Less money could be contributed to a candidate, therefore, less speech could be made. But I don't believe the Buckley framework was implemented simply to find ways to maximize speech. If that were the case, then the Court might as well as simply declare the contributions limitations in Buckley unconstitutional because the only way to achieve this is to do away with all limitations. That way candidates who fund raise get an equal opportunity to to match those who are self financed.

One counter to this argument, however, though not addressed in oral arguments or in merit briefs (and rightly so, as it's weak), is that while the Court can determine whether a state interest is compelling, it is the business of the legislatures to determine what the contribution limits should be. Only in in Randall v. Sorrell did the Court declare that contribution limitations were too low. Never has the Court determined contribution limitations to be too high. From this point of view, it could be argued that the legislature sets contribution limits to prevent corruption. And they prevent corruption by ensuring there is a fair contest; that the symbolism of speech (contributions) doesn't drown out the direct speech (speech of candidates). It isn't the individual contributions that create fairness, but the sum of those contributions and its ability to create speech. This is what creates fairness and prevents corruption. It seems counterintuitive to think the less protected speech should receive more protection than the higher protected speech.

Of course the counter argument to that is the equal protection clause. You need to apply all standards equally. In the end though, Buckley shouldn't be changed. Buckley stood for the principle of preventing corruption and I think that's where Buckley should remain. There are other ways to resolve the issue of unfairness - public financing, or even getting rid of contribution limitations. As Scalia points out, candidates will always have certain advantages over each other. The government should not play the role of mitigator. I think the Millionaire's Amendment should be struck down.

Tuesday, April 22, 2008

St. Thomas More Society hosts death penalty speaker at USF

The St. Thomas More Society at USF Law hosted death penalty speaker, Aundre M. Herron of the California Appellate Project (CAP). A Boston University law grad, Ms. Herron spent 5 years working as a district attorney in the Midwest before coming to San Francisco where she joined with CAP. An entertaining speaker, Ms. Herron spoke to a crowd of approximately 40 students happily munching their Subway sandwiches in Kendrick 104 about her experience with the death penalty.

Ms. Herron opened her presentation with a quick primer on how the death penalty process works in California. First, in order to be eligible for the death penalty, a defendant must be accused of a "special circumstance" crime. These crimes, such as felony murder, are dictated by statute. Second, after being charged, they defendants go to trail. At the end of trial, they enter the guilt phase, where it is determined if the defendant is guilty or innocent. If found guilty, the defendant is next moved to the penalty phase, where it is determined if he shall receive the death penalty. If handed the death sentence, the defendant automatic right to an appeal. This right cannot be waived, even by the defendant himself.

The appeal phase, many times, is then handled by three agencies: the Habeas Corpus Center, Office of the Public Defender, and CAP. CAP oversees these other two agencies.

After that primer, Ms. Herron went into the crux of her presentation: the inherent unfairness of the death penalty process. In sum, the focus of the death penalty debate shouldn't be on the end result of the execution itself, or even the crime which led to the death penalty; the focus should be on the events through out the criminal defendant's life that led up to the crime.

Ms. Herron articulated that nobody accidentally ends up on death row. It is a certain individual- someone who has lived their entire lives without anyone to care for them, that commits the crimes and puts themselves into the position to be eligible for the death penalty. As Ms. Herron analogized, "folks are groomed for death row like the Kennedys' are groomed for Congress."

Often times, these individuals have have suffered significant sexual and physical abuse as a child by the people who were supposed to care for them. Ms. Herron spoke of one client who, as a young boy, from the age of 3-7, was routinely taken down into a basement closet by his father . Once inside, a sock was stuffed into his mouth and the young boy was sodomized. It was no wonder, Ms. Herron quipped, that this same young man later committed terrible sex crimes as an adult.

In addressing death penalty solutions, Ms. Herron asked students to look at the "broad view" to look for solutions. Instead of looking at the procedural aspects of the death penalty, she encouraged students to look to preventative measures. Failing schools and mental health facilities, she noted, could easily prevent many of these young people from their fates. If we could fix the "front end" problems, we could mitigate these people from even getting to the death penalty in the first place.

On the whole, I thought the presentation was very nice. She was charismatic enough to pay attention to. I thought her message could have been a little narrower, however. She spoke too broadly about problems with the death penalty. Of course it would help if our educational system could be fixed. Of course it would be great if our mental health facilities were up to date and could actually service the population. But that isn't the issue.

The issue with the death penalty is the way defendants are treated throughout the process. That is all you can focus on, small things. Ms. Herron actually suggested that we need to remake our entire society. That, quite simply, is unrealistic. As she pointed out earlier, the government can't even make the bus run on time. What would be more realistic is to look at smaller aspects of the death penalty process and look to fix them. This is where I thought she would take her presentation. Unfortunately, it did not go this route.

To end on a positive note, I thought the St. Thomas More Society ran an excellent program (though I think more people showed up than they anticipated). They advertised well and drew a good cross section of students, who asked questions and interacted with the speaker. This meant that something was added to the debate and that's what's important. Overall, well put together and I look forward to more programs and speakers from the St. Thom Society next semester.

SCOTUS Approves of Kentucky's Lethal Injection Scheme

SCOTUS recently entertained an 8th Amendment challenge to Kentucky's method of execution--lethal injection. In Baze v. Rees, the court held that Kentucky's three drug protocol (modeled after Oklahoma's scheme, and followed by 35/36 states, and the federal government, that have Death Penalty schemes) did not violate the 8th Amendment's prohibition against cruel and unusual punishment.
Before delving into the opinion, it is necessary to understand some preliminaries. The three drug "cocktail" consists of an initial dosage of sodium thiopental, a heavy barbiturate that induces a coma-like sleep; a second dosage of pancuronium bromide, a paralytic agent that stops all muscular-skeletal movements and induces suffocation by paralyzing the diaphragm; and finally a dosage of potassium chloride, which induces cardiac arrest. Kentucky has trained IV technicians inject the defendant, from another room, via a 5 foot IV line. The three drugs are administered separately, and there is a gap between the first and second drugs, to ensure the barbiturate has taken effect. All parties agree that if the cocktail is administered properly, the dosage of sodium thiopental will prevent the defendant from feeling any pain. Finally, the plurality and dissent agree with petitioner that if the cocktail is not administered properly, the defendant will experience excruciating pain, which would violate the 8th Amendment.
Petitioner challenges the protocol based on a significant risk that the protocol will not be administered properly, and if not the paralytic agent will prevent the defendant from being able to alert the administrators that he is feeling pain--resulting in a slow, agonizing death by suffocation and cardiac arrest. There are four important opinions as I see it:

ROBERTS, KENNEDY, ALITO plurality: As stated above, the plurality agrees that should the defendant suffer the amount of pain alleged, there would be an 8th Amendment violation. However, the plurality sets the standard for a challenge at a "substantial" or "objectively intolerable" risk of serious harm. The plurality would measure three factors: the degree of risk, the magnitude of pain, and the availability of an alternative. Based on a few factors to be explained below, the plurality found that petitioner had not carried their burden of proof.

STEVENS concurrence: STEVENS writes that the opinion will cause a flood of litigation in which the protocol adopted by every state will be challenged. He discussed elements of the creation and implementation of the protocol that he believes will be the subject of endless litigation here forward. However, the true thrust of his opinion is a renewed attack on the Death Penalty generally--arguing that the penalogical purposes initially identified as supporting the Death Penalty no longer serve as acceptable justifications for such a punishment.

THOMAS, SCALIA concurrence: THOMAS agrees with the plurality that petitioner failed to satisfy his burden of proof, but THOMAS would go one step further--he argues that the proscription of cruel and unusual punishment was intended to prevent intentional pain. He points to the practice at the time of framing of superadding pain onto the punishment of death (by such methods as burning at the stake, beheading, and disembowling). He argues these practices fell out of favor in the framers' day, and that it was this type of superadding of pain they aimed to prevent. According to THOMAS excruciating pain is not offensive of the 8th Amendment, so long as it was unintended.

GINSBURG, SOUTER dissent: GINSBURG would remand for consideration of whether the Kentucky scheme creates an "untoward, readily avoidable risk of infliciting severe and unnecessary pain." Moreover, she would treat the three factors (degree of risk, magnitude of pain, and availability of an alternative) as interrelated questions, not with a fixed threshold, but instead to be measured against each other. Thus, if the magnitude of pain was great enough, there wouldn't need to be a showing of such great risk, etc... She also discusses the fact that veterinary medicine prohibits euthanizing animals with a similar cocktail.

Finally, I wanted to address a few points from the plurality. The plurality finds the Kentucky scheme to be effective because the IV technicians are experienced and trained. However, the "training" consists of 10 practice sessions a year, and the experience is not medical training, but rather one year of experience with IVs. Moreover, the IV technicians are given up to one hour to properly insert the IV. During argument, expert opinion was presented that indicated if an IV was not properly inserted within 15 minutes or so, insertion would be futile and the dosage would be delivered to muscle tissue, rather than the bloodstream--rendering the barbiturate ineffective and causing excruciating pain. Next, the Court points out that the warden and deputy warden are watching from another room, and are charged with stopping the proceedings if anything goes wrong. Leaving aside for a moment the argument that the warden and deputy warden might not be so concerned about whether the defendant is undergoing pain, the fact that the warden is there cannot count for much--he's not a trained medical technician, there is no up-close examination of the defendant, the warden is simply standing in the other room waiting to see if in the 60 seconds between the barbiturate and the paralytic agent the defendant does anything to indicate he might not have gotten the first drug properly. This is not such a great safeguard, in my opinion. Further, the court mentions that this procedure has been used once in Kentucky and there was no evidence it did not go according to plan. This argument completely misses the point--the paralytic agent prevents the defendant from moving at all, from even twitching. Even if the defendant was experiencing excruciating pain, no one would know--that's the very premise of petitioner's challenge! This statement also ignores claims from oral argument that there is evidence form other states that the protocol has failed around 50% of the time.
Last and most importantly, the Court says the paralytic agent is necessary to preserve the dignity of the proceeding and to shield the observers from worry that the defendant is in pain (by preventing involuntary twitches and spasms, etc...) Again, this seems to miss the bigger picture. As to dignity--I would imagine most defendants would be willing to sacrifice a bit of dignity if it ensured they didn't die an excruciating death. As for the observers--this begs a bigger question. If the sight of watching someone squirm and twitch while dying is so displeasing, why are people watching at all? If the average person is so offended by the death of another (even a convicted murder), that we need to anesthetize the entire process, why do we endorse the Death Penalty to begin with? The anesthetizing of the process masks from the observer what is really happening to the defendant during execution. The need to anesthetize seems to indicate that the average observer would not support the Death Penalty if they were really exposed to what death entails.

Monday, April 21, 2008

SCOTUS cares what Citizen Kendrick says

Thought I'd say congrats to our blogger, BMW, for his recent post on the death penalty. Apparently, the Supreme Court was curious and dropped by to get some Citizen Kendrick action:

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Justice BLACKMUN's take on the Death Penalty

In 1972 the Supreme Court of the United States announced that the Death Penalty, as formulated, created too great a risk of arbitrary and capricious application. The opinion, Furman v. Georgia, required all states with Death Penalty statutes to revisit their schemes to ensure that the Death Penalty be imposed fairly and consistently. What has resulted is 36 years of the court trying to walk a line between guiding the sentencer's discretion (Gregg v. Georgia), while preserving individualized penalty determinations (Lockett v. Ohio). The twin goals are untenable, and the result is a tangled mass of jurisprudence that offers no rationality, and is completely incomprehensible. We have the Death Penalty in this country because the 5th Amendment contains language describing a "capital offense." This language, as well as the practice of executions at the time, reflects that the penalty of death is "Constitutional." And because it is Constitutional, the Court approaches challenges to the penalty in the frame of mind that the penalty is completely acceptable--the result being the Court answers questions about racially disproportionate application (McCleskey v. Kemp), and methods of executions (Baze v. Rees) with a somewhat dismissive, "What else would you have us do?," without ever answering the (seemingly) obvious corollary: if we can't eliminate the arbitrariness we fear without also eliminating the mercy we favor, if we can't cure racial application without also interfering with individualized penalty determinations, and if we can't protect the person to be executed form a risk of undue pain while still preserving the dignity of the proceedings or the conscience of the observer, why do we allow the Death Penalty at all? That attitude is the subject of Justice BLACKMUN's dissent (from denial of certiorari) in Callins v. Collins. It is maybe the most cogent Death Penalty abolitionist piece I've ever read, and I think it's intellectually honest enough that whether you are pro- or anti-Death Penalty, it is a worthwhile read. It is long (something like 10 pages), but I urge everyone to soldier through. It really is honest, well considered, and written with the stress of decades of applying the broken penalty hovering over the work. Here it is, in it's entirety:

"On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel-someone who is inspired by the awareness that a less than vigorous defense truly **1129 could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants' rights-even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this *1144 Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness-individualized sentencing. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be imposed “fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982).

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that “degree of respect due the uniqueness of the individual.” Lockett v. Ohio, 438 U.S., at 605, 98 S.Ct., at 2964 (plurality opinion). That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which *1145 fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37, 107 S.Ct. 1756, 1778, n. 37, 95 L.Ed.2d 262 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

**1130 From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored-indeed, I have struggled-along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.FN1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question-does the system accurately and consistently determine which defendants “deserve” to die?-cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e.g., Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), relevant mitigating evidence to be disregarded, see, e.g., Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), and vital judicial review to be blocked, see, e.g., Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1992). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know *1146 must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.FN2

FN1. As a member of the United States Court of Appeals, I voted to enforce the death penalty, even as I stated publicly that I doubted its moral, social, and constitutional legitimacy. See Feguer v. United States, 302 F.2d 214 (CA8), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962); Pope v. United States, 372 F.2d 710 (CA8 1967) (en banc), vacated and remanded, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Maxwell v. Bishop, 398 F.2d 138, 153-154 (CA8 1968), vacated and remanded, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). See Furman v. Georgia, 408 U.S. 238, 405, 92 S.Ct. 2726, 2812, 33 L.Ed.2d 346 (1972).
FN2. Because I conclude that no sentence of death may be constitutionally imposed under our death penalty scheme, I do not address Callins' individual claims of error. I note, though, that the Court has stripped “state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration.” Butler v. McKellar, 494 U.S. 407, 417, 110 S.Ct. 1212, 1219, 108 L.Ed.2d 347 (1990) (Brennan, J., dissenting) (emphasis in original). Even if Callins had a legitimate claim of constitutional error, this Court would be deaf to it on federal habeas unless “the state court's rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist.” Id., at 417-418, 110 S.Ct., at 1219 (emphasis in original). That a capital defendant facing imminent execution is required to meet such a standard before the Court will remedy constitutional violations is indefensible.


In 1971, in an opinion which has proved partly prophetic, the second Justice Harlan, writing for the Court, observed:

“Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.... For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete.” McGautha v. California, 402 U.S. 183, 204, 208, 91 S.Ct. 1454, 1466, 1467, 28 L.Ed.2d 711.

In McGautha, the petitioner argued that a statute which left the penalty of death entirely in the jury's discretion, without any standards to govern its imposition, violated the Fourteenth Amendment. Although the Court did not deny that serious risks were associated with a sentencer's unbounded discretion, the Court found no remedy in the **1131 Constitution for the inevitable failings of human judgment.

A year later, the Court reversed its course completely in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ( per curiam, with each of *1147 the nine Justices writing separately). The concurring Justices argued that the glaring inequities in the administration of death, the standardless discretion wielded by judges and juries, and the pervasive racial and economic discrimination rendered the death penalty, at least as administered, “cruel and unusual” within the meaning of the Eighth Amendment. Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Id., at 313, 92 S.Ct., at 2764. If any discernible basis could be identified for the selection of those few who were chosen to die, it was “the constitutionally impermissible basis of race.” Id., at 310, 92 S.Ct., at 2762 (Stewart, J., concurring).

I dissented in Furman. Despite my intellectual, moral, and personal objections to the death penalty, I refrained from joining the majority because I found objectionable the Court's abrupt change of position in the single year that had passed since McGautha. While I agreed that the Eighth Amendment's prohibition against cruel and unusual punishments “ ‘may acquire meaning as public opinion becomes enlightened by a humane justice,’ ” 408 U.S., at 409, 92 S.Ct., at 2814, quoting Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910), I objected to the “suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago.” 408 U.S., at 410, 92 S.Ct., at 2814. Four years after Furman was decided, I concurred in the judgment in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its companion cases which upheld death sentences rendered under statutes passed after Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261, 96 S.Ct. 2960, 2970, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2960, 49 L.Ed.2d 929 (1976). Cf. Woodson v. North Carolina, 428 U.S. 280, 307, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 363, 96 S.Ct. 3001, 3020, 49 L.Ed.2d 974 (1976).


There is little doubt now that Furman's essential holding was correct. Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all. Eddings v. Oklahoma, 455 U.S., at 112, 102 S.Ct., at 875. I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after *1148 Furman was decided. See Gregg v. Georgia, 428 U.S., at 189, 96 S.Ct., at 2932 (opinion of Stewart, Powell, and STEVENS, JJ.) (“ Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”). Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence.

Delivering on the Furman promise, however, has proved to be another matter. Furman aspired to eliminate the vestiges of racism and the effects of poverty in capital sentencing; it deplored the “wanton” and “random” infliction of death by a government with constitutionally limited power. Furman demanded that the sentencer's discretion be directed and limited by procedural rules and objective standards in order to minimize the risk of arbitrary and capricious sentences of death.

In the years following Furman, serious efforts were made to comply with its mandate.**1132 State legislatures and appellate courts struggled to provide judges and juries with sensible and objective guidelines for determining who should live and who should die. Some States attempted to define who is “deserving” of the death penalty through the use of carefully chosen adjectives, reserving the death penalty for those who commit crimes that are “especially heinous, atrocious, or cruel,” see Fla.Stat. § 921.141(5)(h) (1977), or “wantonly vile, horrible or inhuman,” see Ga.Code Ann. § 27-2534.1(b)(7) (1978). Other States enacted mandatory death penalty statutes, reading Furman as an invitation to eliminate sentencer discretion altogether. See, e.g., N.C.Gen.Stat. § 14-17 (Supp.1975). But see Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (invalidating mandatory death penalty statutes). Still other States specified aggravating and mitigating factors that were to be considered by the sentencer and weighed against one another in a calculated and rational manner. See, e.g., Ga.Code Ann. § 17-10-30(c) (1982); cf. Tex.Code Crim.Proc.Ann., Art. 37.071(c)-(e) (Vernon 1981 and Supp.1989) (identifying “special issues” to be considered by the sentencer when determining the appropriate sentence).

Unfortunately, all this experimentation and ingenuity yielded little of what Furman demanded. It soon became apparent that discretion could not be eliminated from capital sentencing without *1149 threatening the fundamental fairness due a defendant when life is at stake. Just as contemporary society was no longer tolerant of the random or discriminatory infliction of the penalty of death, see Furman, supra, evolving standards of decency required due consideration of the uniqueness of each individual defendant when imposing society's ultimate penalty. See Woodson, 428 U.S., at 301, 96 S.Ct., at 2989 (opinion of Stewart, Powell, and STEVENS, JJ.), referring to Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion).

This development in the American conscience would have presented no constitutional dilemma if fairness to the individual could be achieved without sacrificing the consistency and rationality promised in Furman. But over the past two decades, efforts to balance these competing constitutional commands have been to no avail. Experience has shown that the consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness.


There is a heightened need for fairness in the administration of death. This unique level of fairness is born of the appreciation that death truly is different from all other punishments a society inflicts upon its citizens. “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson, 428 U.S., at 305, 96 S.Ct., at 2991 (opinion of Stewart, Powell, and STEVENS, JJ.). Because of the qualitative difference of the death penalty, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Ibid. In Woodson, a decision striking down mandatory death penalty statutes as unconstitutional, a plurality of the Court explained: “A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” Id., at 304, 96 S.Ct., at 2991.

While the risk of mistake in the determination of the appropriate penalty may be tolerated in other areas of the criminal law, “in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the *1150 character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Ibid. Thus, although individualized sentencing in **1133 capital cases was not considered essential at the time the Constitution was adopted, Woodson recognized that American standards of decency could no longer tolerate a capital sentencing process that failed to afford a defendant individualized consideration in the determination whether he or she should live or die. Id., at 301, 96 S.Ct., at 2989.

The Court elaborated on the principle of individualized sentencing in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In that case, a plurality acknowledged that strict restraints on sentencer discretion are necessary to achieve the consistency and rationality promised in Furman, but held that, in the end, the sentencer must retain unbridled discretion to afford mercy. Any process or procedure that prevents the sentencer from considering “ as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” creates the constitutionally intolerable risk that “the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id., at 604-605, 98 S.Ct., at 2964-2965 (emphasis in original). See also Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (invalidating a mandatory death penalty statute reserving the death penalty for life-term inmates convicted of murder). The Court's duty under the Constitution therefore is to “develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S., at 110, 102 S.Ct., at 874.


I believe the Woodson-Lockett line of cases to be fundamentally sound and rooted in American standards of decency that have evolved over time. The notion of prohibiting a sentencer from exercising its discretion “to dispense mercy on the basis of factors too intangible to write into a statute,” Gregg, 428 U.S., at 222, 96 S.Ct., at 2947 (White, J., concurring), is offensive to our sense of fundamental fairness and respect for the uniqueness of the individual. In California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), I said in dissent:

“The sentencer's ability to respond with mercy towards a defendant has always struck me as a particularly valuable aspect of the capital sentencing procedure.... [W]e adhere *1151 so strongly to our belief that sentencers should have the opportunity to spare a capital defendant's life on account of compassion for the individual because, recognizing that the capital sentencing decision must be made in the context of ‘contemporary values,’ Gregg v. Georgia, 428 U.S., at 181 [96 S.Ct., at 2928] (opinion of Stewart, POWELL, and STEVENS, JJ.), we see in the sentencer's expression of mercy a distinctive feature of our society that we deeply value.” Id., at 562-563, 107 S.Ct., at 850.

Yet, as several Members of the Court have recognized, there is real “tension” between the need for fairness to the individual and the consistency promised in Furman. See Franklin v. Lynaugh, 487 U.S. 164, 182, 108 S.Ct. 2320, 2331-2332, 101 L.Ed.2d 155 (1988) (plurality opinion); California v. Brown, 479 U.S., at 544, 107 S.Ct., at 840 (O'CONNOR, J., concurring); McCleskey v. Kemp, 481 U.S., at 363, 107 S.Ct., at 1804 (BLACKMUN, J., dissenting); Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993) (THOMAS, J., concurring). On the one hand, discretion in capital sentencing must be “ ‘controlled by clear and objective standards so as to produce non-discriminatory [and reasoned] application.’ ” Gregg, 428 U.S., at 198, 96 S.Ct., at 2936 (opinion of Stewart, Powell, and STEVENS, JJ.), quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974). On the other hand, the Constitution also requires that the sentencer be able to consider “any relevant mitigating evidence regarding the defendant's character or background, and the circumstances of the particular offense.” California v. Brown, 479 U.S., at 544, 107 S.Ct., at 840 (O'CONNOR, J., concurring). **1134 The power to consider mitigating evidence that would warrant a sentence less than death is meaningless unless the sentencer has the discretion and authority to dispense mercy based on that evidence. Thus, the Constitution, by requiring a heightened degree of fairness to the individual, and also a greater degree of equality and rationality in the administration of death, demands sentencer discretion that is at once generously expanded and severely restricted.

This dilemma was laid bare in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The defendant in Penry challenged the Texas death penalty statute, arguing that it failed to allow the sentencing jury to give full mitigating effect to his evidence of mental retardation and history of child abuse. The Texas statute required the jury, during the penalty phase, to answer three “special issues”; if the jury unanimously answered “yes” to each issue, the trial court was obligated to sentence the defendant to death. *1152 Tex.Code Crim.Proc.Ann., Art. 37.071(c)-(e) (Vernon 1981 and Supp.1989). Only one of the three issues-whether the defendant posed a “continuing threat to society”-was related to the evidence Penry offered in mitigation. But Penry's evidence of mental retardation and child abuse was a two-edged sword as it related to that special issue: “[I]t diminish[ed] his blameworthiness for his crime even as it indicate[d] that there [was] a probability that he [would] be dangerous in the future.” 492 U.S., at 324, 109 S.Ct., at 2949. The Court therefore reversed Penry's death sentence, explaining that a reasonable juror could have believed that the statute prohibited a sentence less than death based upon his mitigating evidence. Id., at 326, 109 S.Ct., at 2950.

After Penry, the paradox underlying the Court's post- Furman jurisprudence was undeniable. Texas had complied with Furman by severely limiting the sentencer's discretion, but those very limitations rendered Penry's death sentence unconstitutional.


The theory underlying Penry and Lockett is that an appropriate balance can be struck between the Furman promise of consistency and the Lockett requirement of individualized sentencing if the death penalty is conceptualized as consisting of two distinct stages.FN3 In the first stage of capital sentencing, the demands of Furman are met by “narrowing” the class of death-eligible offenders according to objective, fact-bound characteristics of the defendant or the circumstances of the offense. Once the pool of death-eligible defendants has been reduced, the sentencer retains the discretion to consider whatever relevant mitigating evidence the defendant chooses to offer. See Graham v. Collins, 506 U.S., at 503-504, 113 S.Ct., at 917 (STEVENS, J., dissenting) (arguing that providing full discretion to the sentencer is not inconsistent with Furman and may actually help to protect against arbitrary and capricious sentencing).

FN3. See Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L.Rev. 1147, 1162 (1991).
Over time, I have come to conclude that even this approach is unacceptable: It simply reduces, rather than eliminates, the number of people subject to arbitrary sentencing.FN4 It is the decision *1153 to sentence a defendant to death-not merely the decision to make a defendant eligible for death-that may not be arbitrary. While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being **1135 should live or die is so inherently subjective-rife with all of life's understandings, experiences, prejudices, and passions-that it inevitably defies the rationality and consistency required by the Constitution.

FN4. The narrowing of death-eligible defendants into a smaller subgroup coupled with the unbridled discretion to pick among them arguably emphasizes rather than ameliorates the inherent arbitrariness of the death penalty. Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 27-28 (1980) (arguing that the inherent arbitrariness of the death penalty is only magnified by post- Furman statutes that allow the jury to choose among similarly situated defendants).


The arbitrariness inherent in the sentencer's discretion to afford mercy is exacerbated by the problem of race. Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to objective standards. No matter how narrowly the pool of death-eligible defendants is drawn according to objective standards, Furman 's promise still will go unfulfilled so long as the sentencer is free to exercise unbridled discretion within the smaller group and thereby to discriminate. “ ‘[T]he power to be lenient [also] is the power to discriminate.’ ” McCleskey v. Kemp, 481 U.S., at 312, 107 S.Ct., at 1778 quoting K. Davis, Discretionary Justice 170 (1973).

A renowned example of racism infecting a capital sentencing scheme is documented in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Warren McCleskey, an African-American, argued that the Georgia capital sentencing scheme was administered in a racially discriminatory manner, in violation of the Eighth and Fourteenth Amendments. In support of his claim, he proffered a highly reliable statistical study (the Baldus study) which indicated that, “after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black.” Id., at 325, 107 S.Ct., at 1784 (emphasis in original) (Brennan, J., dissenting). The Baldus *1154 study further demonstrated that blacks who kill whites are sentenced to death “at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks.” Id., at 327, 107 S.Ct., at 1785 (emphasis in original).

Despite this staggering evidence of racial prejudice infecting Georgia's capital sentencing scheme, the majority turned its back on McCleskey's claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism. Faced with the apparent failure of traditional legal devices to cure the evils identified in Furman, the majority wondered aloud whether the consistency and rationality demanded by the dissent could ever be achieved without sacrificing the discretion which is essential to fair treatment of individual defendants:

“[I]t is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice.... The dissent repeatedly emphasizes the need for ‘a uniquely high degree of rationality in imposing the death penalty’.... Again, no suggestion is made as to how greater ‘rationality’ could be achieved under any type of statute that authorizes capital punishment.... Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution.” Id., at 314-315, n. 37, 107 S.Ct., at 1778, n. 37.

I joined most of Justice Brennan's significant dissent which expounded McCleskey's Eighth Amendment claim, and I wrote separately, id., at 345, 107 S.Ct., at 1795, to explain that McCleskey also had a solid equal protection argument under the Fourteenth Amendment. I still adhere to the views set forth in both dissents, and, as far as I know, there has been no serious effort to impeach the Baldus study. Nor, for that matter, have **1136 proponents of capital punishment provided any reason to believe that the findings of that study are unique to Georgia.

The fact that we may not be capable of devising procedural or substantive rules to prevent the more subtle and often unconscious forms of racism from creeping into the system does not *1155 justify the wholesale abandonment of the Furman promise. To the contrary, where a morally irrelevant-indeed, a repugnant-consideration plays a major role in the determination of who shall live and who shall die, it suggests that the continued enforcement of the death penalty in light of its clear and admitted defects is deserving of a “sober second thought.” Justice Brennan explained:

“Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of ‘sober second thought.’ Stone, The Common Law in the United States, 50 Harv.L.Rev. 4, 25 (1936).” Id., at 343, 107 S.Ct., at 1793-1794.


In the years since McCleskey, I have come to wonder whether there was truth in the majority's suggestion that discrimination and arbitrariness could not be purged from the administration of capital punishment without sacrificing the equally essential component of fairness-individualized sentencing. Viewed in this way, the consistency promised in Furman and the fairness to the individual demanded in Lockett are not only inversely related, but irreconcilable in the context of capital punishment. Any statute or procedure that could effectively eliminate arbitrariness from the administration of death would also restrict the sentencer's discretion to such an extent that the sentencer would be unable to give full consideration to the unique characteristics of each defendant and the circumstances of the offense. By the same token, any statute or procedure that would provide the sentencer with sufficient discretion to consider fully and act upon the unique circumstances of each defendant would “thro[w] open the back door to arbitrary and irrational sentencing.” Graham v. Collins, 506 U.S., at 494, 113 S.Ct., at 912 (THOMAS, J., concurring). All efforts to strike an appropriate balance between these conflicting constitutional commands are futile because there is a heightened need for both in the administration of death.

*1156 But even if the constitutional requirements of consistency and fairness are theoretically reconcilable in the context of capital punishment, it is clear that this Court is not prepared to meet the challenge. In apparent frustration over its inability to strike an appropriate balance between the Furman promise of consistency and the Lockett requirement of individualized sentencing, the Court has retreated from the field,FN5 allowing relevant mitigating evidence to be discarded,FN6 vague aggravating circumstances to be employed,**1137 FN7 and providing no indication that the problem of race in the administration of death will ever be addressed. In fact some Members of the Court openly have acknowledged a willingness simply to pick one of the competing constitutional commands and sacrifice the other. See Graham, 506 U.S., at 478, 113 S.Ct., at 903 (THOMAS, J., concurring) (calling for the reversal of Penry ); Walton v. Arizona, 497 U.S. 639, 673, 110 S.Ct. 3047, 3067-3068, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring *1157 in part and concurring in judgment) (announcing that he will no longer enforce the requirement of individualized sentencing, and reasoning that either Furman or Lockett is wrong and a choice must be made between the two). These developments are troubling, as they ensure that death will continue to be meted out in this country arbitrarily and discriminatorily, and without that “ degree of respect due the uniqueness of the individual.” Lockett, 438 U.S., at 605, 98 S.Ct., at 2965. In my view, the proper course when faced with irreconcilable constitutional commands is not to ignore one or the other, nor to pretend that the dilemma does not exist, but to admit the futility of the effort to harmonize them. This means accepting the fact that the death penalty cannot be administered in accord with our Constitution.

FN5. See Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (concluding that appellate courts may engage in a reweighing of aggravating and mitigating circumstances in order to “cure” error in capital sentencing); Blystone v. Pennsylvania, 494 U.S. 299, 310, 110 S.Ct. 1078, 1085, 108 L.Ed.2d 255 (1990) (upholding a death penalty statute mandating death where aggravating, but no mitigating, circumstances are present, thus divesting the jury of its ability to make an individualized determination that death is the appropriate punishment in a particular case).
FN6. See Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (affirming death sentence even though the jurors were not allowed to give full mitigating effect to the defendant's youth under the Texas death penalty statute); Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). See also Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (upholding death sentence where jurors were instructed to avoid “any influence of sympathy,” because the claim was raised on federal habeas and a ruling for the petitioner would constitute a “new rule” of constitutional law); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (upholding death sentence where jurors reasonably may have believed that they could not consider the defendant's mitigating evidence regarding his character and background); Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (affirming placement upon the defendant of the burden to establish mitigating circumstances sufficient to call for leniency).The Court has also refused to hold the death penalty unconstitutional per se for juveniles, see Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), and the mentally retarded, see Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
FN7. See Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (holding that an Idaho statute, as interpreted by the Idaho Supreme Court, which authorizes the death penalty for those murderers who have displayed “utter disregard for human life,” genuinely narrows the class of death-eligible defendants); Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (affirming lenient standard for the review of the constitutional adequacy of aggravating circumstances).


My belief that this Court would not enforce the death penalty (even if it could) in accordance with the Constitution is buttressed by the Court's “obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please.” Herrera v. Collins, 506 U.S. 390, 446, 113 S.Ct. 853, 884, 122 L.Ed.2d 203 (BLACKMUN, J., dissenting). I have explained at length on numerous occasions that my willingness to enforce the capital punishment statutes enacted by the States and the Federal Government, “notwithstanding my own deep moral reservations ... has always rested on an understanding that certain procedural safeguards, chief among them the Federal Judiciary's power to reach and correct claims of constitutional error on federal habeas review, would ensure that death sentences are fairly imposed.” Sawyer v. Whitley, 505 U.S. 333, 358, 112 S.Ct. 2514, 2529, 120 L.Ed.2d 269 (1992) (BLACKMUN, J., concurring in judgment). See also Herrera, 506 U.S., at 438-439, 113 S.Ct., at 880-881 (BLACKMUN, J., dissenting). In recent years, I have grown increasingly skeptical that “the death penalty really can be imposed fairly and in accordance with the requirements of the Eighth Amendment,” given the now limited ability of the federal courts to remedy constitutional errors. Sawyer, 505 U.S., at 351, 112 S.Ct., at 2525 (BLACKMUN, J., concurring in judgment).

Federal courts are required by statute to entertain petitions from state prisoners who allege that they are held “in violation of the Constitution or laws or the treaties of the United States.” 28 U.S.C. § 2254(a). Serious review of these claims helps to ensure **1138 that government does not secure the penalty of death by *1158 depriving a defendant of his or her constitutional rights. At the time I voted with the majority to uphold the constitutionality of the death penalty in Gregg v. Georgia, 428 U.S., at 227, 96 S.Ct., at 2950, federal courts possessed much broader authority than they do today to address claims of constitutional error on habeas review. In 1976, there were few procedural barriers to the Federal Judiciary's review of a State's capital sentencing scheme, or the fairness and reliability of a State's decision to impose death in a particular case. Since then, however, the Court has “erected unprecedented and unwarranted barriers” to the Federal Judiciary's review of the constitutional claims of capital defendants. Sawyer, 505 U.S., at 351, 112 S.Ct., at 2525 (BLACKMUN, J., concurring in judgment). See, e.g., Herrera v. Collins, supra; Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (overruling Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in part); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).

The Court's refusal last Term to afford Leonel Torres Herrera an evidentiary hearing, despite his colorable showing of actual innocence, demonstrates just how far afield the Court has strayed from its statutorily and constitutionally imposed obligations. See Herrera v. Collins, supra. In Herrera, only a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant's ability to get a hearing on a claim of actual innocence. Ibid. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera without the benefit of an evidentiary hearing.FN8 The Court is unmoved by this dilemma, however; it prefers “finality” in death sentences to reliable determinations of a capital defendant's guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment's competing constitutional commands, or that the Federal Judiciary will provide meaningful *1159 oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.

FN8. Even the most sophisticated death penalty schemes are unable to prevent human error from condemning the innocent. Innocent persons have been executed, see Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21, 36, 173-179 (1987), perhaps recently, see Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), and will continue to be executed under our death penalty scheme.


Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it-and the death penalty-must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442, 100 S.Ct. 1759, 1772, 64 L.Ed.2d 398 (1980) (Marshall, J., concurring in judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent. "