TCS Daily


The "Moderate Republican" Death Penalty Values of Justice Stevens - Part 2

By Lester Jackson - May 6, 2010 12:00 AM

Continued from Part 1...

NOTE: Page numbers and footnotes in brackets refer to documentation in the detailed paper downloadable here; those in parentheses refer to all other linked sources.


ANY PORT IN A STORM TO SAVE A CAPITAL CONVICT
Solicitude for Suffering Orphans Who Kill Their Parents.
Stevens may not fret about torture and terror of rape and murder victims, but he gets positively apoplectic about discomforting condemned murderers. A victim Stevens dismisses as a "third party" noted "the pain [homicide] causes to those left behind. Dealing with the justice system ... is even worse." Thanks to Stevens, et al., this means agonizing multiple trials and appeals, lasting decades. But for Stevens (and Breyer [47-50]) the suffering of "those left behind" [n319] is immaterial - unworthy of minimal lip service or mention [n315]. Instead, the true objects of sympathy must be convicted murderers who, like parent killers seeking mercy as orphans, ask to be spared because they have suffered "most horrible feelings" from the delays they themselves have sought. Stevens conceded the claim was "novel." Unprecedented would be more accurate. Last December, he bemoaned (3) the "dehumanizing ... frightful toll" and "underlying evils of intolerable delay" suffered by Cecil Johnson. Stevens did not divulge that Johnson, who caused a 29-year delay, had brutally murdered three victims, including a 12-year-old. Revealingly, 23 days earlier, Stevens complained of an execution taking place too fast. Justice Thomas observed (2): "the State can never get the timing just right" to satisfy Stevens.

Murderers: the Ones Who Really Suffer. If Stevens objected to any inference of victim suffering drawn from bare mention of a brutal crime, he had no qualms about providing "graphic description" of minimal alleged suffering by condemned brutal killers. In objecting to a 28-word reference to victims, he omitted that he had devoted 1,700 words (61 x 28) to vivid details about execution while saying nothing about the brutality and agony imposed upon victims [19, 18, 2-3, 54; n178]. He anguished about any execution pain, protesting a murderer took "ten minutes and thirty-one seconds to die." But he did not compare this to the hours, days and even months of death by torture inflicted by those whose cause he championed.

"Constitutional Right" to Commit Punishment-Free Brutality. In 1974, serving a life term for rape, murder and attempted murder, Erlich Anthony Coker, escaped. He then raped 16-year-old Elnita Carver, under threat of death, three weeks after giving birth. In 1977, the death penalty for rape was suddenly held unconstitutional. In a plurality opinion, joined by Stevens 18 months into his tenure, the Court asserted: (1) contrary to normally expected harsher sentences for those with worse records, the worst repeat offenders had a constitutional right to commit punishment-free brutality because, for new crimes, the death penalty could not be imposed on those already serving life sentences [n265; 42]; (2) "Mrs. Carver was unharmed" (i.e., rape can be unharmful); (3) the values of a democratic people are rejected if "unacceptable" to five justices; (4) Carver was an "adult woman." 28 years later Stevens joined another opinion holding (14, 9), a victim need be only 16 to be an adult but a vicious premeditated murderer must be 18 to be considered an adult for the purpose of punishment [n265] and reiterating the "acceptability" requirement.


TO RESPECT OR NOT TO RESPECT?
Stevens is an ardent proponent of respect for and deference to state court judges. He is also an equally ardent practitioner of the opposite. At first glance, this might appear inconsistent. It is not. The overarching value is what is best for the convict, however overwhelming the proof of guilt. Any argument will do if it advances that value.

One of his most famous dissents (7), resounding with "confidence in [state judges] that is the true backbone of the rule of law," lambasted the court for alleged "lack of confidence in the impartiality and capacity" of state judges who make "critical decisions." Stevens purports to advocate (16) "minimizing federal intrusion into state criminal proceedings." Just five months ago, he found it (3) "hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions...."

Based on these statements alone, one would never know just how little confidence Stevens has shown in state judges when opposed to their results. Virtually all decisions he authored or joined slowly abolishing capital punishment rejected state judges' "critical decisions." And he had no trouble "micromanaging" to "narrow" capital punishment with "fact-intensive" decisions.

For four dissenters, Justice White protested: "The Court long ago gave up second-guessing state supreme courts in [such] situations ... [Its] opinion rests on a [dubious] reconstruction of the record the likes of which has rarely, if ever, been performed before in this Court." In another 5-4 case, the dissenters objected: "today's opinion - which considers a fact bound claim of error rejected by every court, state and federal, that previously heard it - is ... wholly unprecedented." To which Stevens replied: "Our duty ... occasionally requires ... a detailed review of the particular facts of a case ...The current popularity of capital punishment makes this ... especially important. ..."

For him, "duty" boils down to this: save the lives of convicted murderers. That is the touchstone for deciding whether to "micromanage," or to "respect" state judges and/or community values.

Stevens has no confidence in state judges who impose death sentences contrary to jury recommendations. Having so often proclaimed superiority of justices' values over the community's in order to overturn and prevent this penalty, he also protests the "absence of any rudder on a judge's free floating power to negate the community's will." Conveniently posing as a community values defender, Stevens says the "most credible justification for the death penalty is its expression of the community's outrage." Yet when the community expresses outrage with a jury death sentence, that should be ignored and disrespected, especially given the "popularity of capital punishment." But when the community (i.e., jury) does not recommend death, the "community's will" must not be negated by judges.

In sum, anything goes to reject the people's values - except when Stevens accepts them.


WHOSE THUMB ON THE SCALES OF JUSTICE?
When he declared capital punishment violated (17) the very constitution that repeatedly authorized it (2), Stevens complained (15-16) of "decisions placing a thumb on the prosecutor's side of the scales." One such decision admitted victim impact evidence. For Stevens, the scales are balanced by allowing any and all sympathy for a convicted murderer but none at all for his victims. Just who seeks to have a thumb on the scales of justice?

Lest there be any doubt, when state judges wrongly interpret federal law, Stevens wants U.S. Supreme Court corrections to be limited to errors benefitting the prosecution, barring review of those aiding guilty defendants. As Justice O'Connor put it, he takes a "the novel view" (n8): his court should "respect" only state court federal law interpretations favoring defendants. Four years ago, he objected (2) to reviewing a state high court ruling that "had granted [a convicted murderer] more protection ... than the Federal Constitution required. A policy of judicial restraint would allow the highest court of the State to be the final decisionmaker in a case of this kind." However, to rescue a brutal convicted murderer (3), Stevens insisted upon (14) "federal courts' [responsibility] ... to interpret federal law ... independent from the ... States...." Let there be no restraint in the "narrowing" of capital punishment.

Justice Scalia says it is Stevens who wants a "thumb on the scales" (4): "When a criminal defendant loses a questionable constitutional point, we may grant review; when the State loses, we must deny it."


A "MODEST" JUSTICE
It should surprise no one that a justice, whose "modesty" presumes a right to review the "acceptability" of his fellow citizens' values, is not bashful about proclaiming, without evidence, that deceased luminaries would support his "conservative" Coolidge-Harding positions. For example, he has claimed the backing of late Chief Justices Burger and Rehnquist, as well as Alexander Hamilton.

In 2007 (6), Stevens expressed his "firm conviction" that Burger and Rehnquist would have agreed with him. But when they were alive and shortly after joining the court, he implicitly accused them of unfairness to child murderer Williams by endorsing "dishonor," "an unusually clear [lawless] violation of constitutional rights" and failing to decide "dispassionately." Years later, Stevens also implicitly accused (7) Rehnquist of encouraging cynicism about and undermining confidence in the rule of law and judicial impartiality, as well as authoring a "sad day for a great institution."

Stevens confidently asserted that Hamilton would have agreed with a bare majority [7-8] that a 17½ year-old, who planned, enjoyed and boasted of the barbaric torture and murder of an innocent woman, could not possibly be mature enough to understand his crime and that the Constitution Hamilton defended required that such a creature be allowed to "attain a mature understanding of his humanity" [53]. Stevens conveniently omitted that, before age 17, Hamilton ran (31-33) a complex export-import business and published poems, articles and essays - and when just 14, he avowed (30-31) a willingness to "risk my life tho' not my character"!

Stevens has provided repeated illustrations of attorney Mark Pulliam's observation that "no argument is too preposterous for a lawyer to make with a straight face" [47].


CONCLUSION: THE REPLACEMENT
It is critical to be clear about what the dominant media and posturing politicians mean when they tout Stevens' replacement as "moderate" and "in the mainstream." Elena Kagan should be closely questioned, not in arcane legalistic terms of interest only to lawyers, but using concrete examples likely to attract the public's attention.

A justice labeled "moderate" by the media is one who protects murderers whose guilt is not in question, and gives the back of his/her hand to victims - torturing them with endless litigation to save such murderers. At the very least, any alleged moderate should be asked whether the Constitution proscribes criminal penalties approved by the people but "unacceptable" to the values of five justices [n 243].

Senator Leahy wants a Stevens clone "who approaches every case with an open mind and a commitment to fairness." This can only be greeted with astonishment by the millions who care about barbaric crime and its victims, who Stevens, to protect their tormenters, would exclude from bare mention in Supreme Court opinions and consideration at sentencing trials.

Does our society need or favor more "open minded" justices for whom victims should be out-of-sight-out-of-mind while convicted murderers touch the very depths of their souls?

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