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Monday, June 26, 2006
A death penalty decision, and a Scalia concurrence

I wonder if the fit will hit the shan in the Catholic blogosphere about Justice Scalia's concurrence in today's decision upholding Kansas's death penalty. Justice Thomas wrote the opinion of the Court in this 5-4 decision, but Scalia added a separate concurrence:
There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently—and indeed, many of them would still have it if the democratic will prevailed.3) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.
He then discusses the Roger Coleman case:
...Coleman’s case became a rallying point for abolitionists, who hoped it would offer what they consider the “Holy Grail: proof from a test tube that an innocent person had been executed.” Frankel, supra, at W24. But earlier this year, a DNA test ordered by a later Governor of Virginia proved that Coleman was guilty, see, e.g., Glod & Shear, DNA Tests Confirm Guilt of Man Executed by Va., supra, at A1; Dao, supra, at A14, even though his defense team had “proved” his innocence and had even identified “the real killer” (with whom they eventually settled a defamation suit). Frankel, supra, at W23; Glod & Shear, Warner Orders DNA Testing in Case of Man Executed in ’92, Washington Post, Jan. 6, 2006, pp. A1, A6.
He then attacks in great detail the "abolitionist" scholarship on which Justice Souter's dissent relies, and concludes:
Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

For the record, statements by recent Popes have made me more restrictive in endorsing the use of the death penalty, and I have not ruled out "abolitionism," as Scalia would put it. Of course, and contrary to reporters' templates for politicizing Churhc issues, the Church does not require "abolitionism" re the death penalty.

But if the morality of capital punishment is hard, its constitutionality is easy: obviously a Constitution that explicitly assumes that the death penalty will be applied, as ours does in the Fifth Amendment, cannot then have gone on to ban it in the simultaneously-enacted Eighth ("cruel and unusual punishment"). And don't give me "evolving standards of decency": those are for the people, through their representatives, to determine, not the courts.

And there's another easy question here: whether the unctuousness of the Eurocracy that Scalia is impliedly referring to makes one want to hurl. Clearly it does.