Monday, March 28, 2016

Justice Scalia's Record (Part 5: Punishment)

Back from spring break and the Easter holiday. Yes, the big news concerning the high court is President Obama's nomination of federal appeals court judge Merrick Garland to fill the Scalia vacancy. As we continue with the examination of  Justice Scalia's record, readers who are eager to learn more about Judge Garland might want to take a look at 2 posts on New York Court Watcher from 2010 (Merrick Garland [1] & Merrick Garland [2]) and listen to an interview last week on Susan Arbetter's Capitol Pressroom [@ ~21:50 mins]).

photo: AP/Manuel Balce Ceneta
The 8th Amendment prohibits "cruel and unusual" punishments. Justice Antonin Scalia viewed that prohibition as outlawing only punishments that are both extremely gruesome and extremely rare. Applying those criteria, he voted to uphold the 8th Amendment constitutionality of whatever sentence came to the Court for review.

A look at a few cases in which Scalia participated and wrote an opinion will illustrate his rather narrow and unyielding perspective on what qualifies as "cruel and unusual."

Harmelin v. Michigan (1991): the 5-4 majority held that a life sentence, without the possibility of parole, for possession of 650 grams of cocaine was not unconstitutionally excessive.
Three Justices in the majority concluded that the sentence was not so excessive as to be "cruel and unusual."
Four dissenting Justices viewed the sentence as so disproportionate that it did violate the 8th Amendment.
That made 7 of the 9 Justices who agreed that the "cruel and unusual" prohibition of the 8th Amendment did include an excessiveness component.
Justice Scalia, on the other hand, had a different view. Writing for himself and Chief Justice Rehnquist [The majority joined only part 5 of his 5-part opinion.], he took the position that the sentence was clearly constitutional. But that was so, according to him [I.e., in the 4 of 5 parts of his opinion that the majority did NOT join.], because "the Eighth Amendment contains no proportionality guarantee." Instead, the "cruel and unusual" prohibition only "disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed." Quoting with approval from some historical studies, Scalia insisted that the "cruel and unusual" prohibition referred only to such punishments as "[b]reaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death to punishments."

Atkins v. Virginia (2002): the 6-3 majority held that the death penalty for a severely mentally disabled murder defendant--an IQ of 59--was unconstitutionally "cruel and unusual."
In his dissent, Scalia protested that "mental retardation does not render the offender morally blameless." Moreover, according to Scalia, "[t]he fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders."

Roper v. Simmons (2005): the 5-4 majority held that it was unconstitutional to impose the death penalty for a murder committed by a juvenile.
In his dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas [Justice O'Connor wrote her own dissent.], Scalia berated the majority for "reach[ing] this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to 'the evolving standards of decency.'"

Baze v. Rees (2008): the 7-2 majority upheld the constitutionality of a common method of lethal injection.
In his opinion for the Court, Chief Justice Roberts explained that a "method of execution is unconstitutional if it entails an 'intolerable risk' of 'severe pain.'" He concluded that lethal injection was acceptable under that standard.
In dissent, Justice Ginsburg refused to approve lethal injection until those seeking to impose it proved that any risk of pain was actually unavoidable.
Scalia agreed with the Court's decision to uphold lethal injection, but disagreed with the intolerable-risk-of-severe-pain standard. He authored a separate concurring to criticize Justice Stevens for generally questioning the justification for the death penalty. Beyond that, Scalia explicitly stated at the outset that he was joining Justice Thomas's own concurring opinion.
In that opinion, Thomas repeated the view shared by him and Scalia about the very limited contours of the "cruel and unusual" prohibition. To them, the 8th Amendment was only "intended to prohibit torturous modes of punishment." And in accord with early case law and commentary, this meant that the constitutional prohibition was confined to "burning at the stake, crucifixion, breaking on the wheel, or the like.”

Kennedy v. Louisiana (2008): the 5-4 majority held that the death penalty for raping a child is unconstitutional; that capital punishment is almost exclusively reserved for homicidal crimes.
Justice Alito, in his opinion for the 4 dissenters including Scalia, posed the following question: Consider "a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that [any murder] defendant is more morally depraved than the [child rapist]?"
Subsequently, Scalia himself authored a "Statement" when the Court refused to rehear the case. He mocked the majority's initial decision in the case, and specifically its view that "the Constitution contemplates that in the end [the Court's] own judgment will be brought to bear on questions about the death penalty." Scalia's retort: "Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' But that is what the majority opinion said."

[Disclosure: I disagree with the positions argued by Scalia in every one of these cases. I actually do agree with his votes in 2 of these cases: in Baze v. Rees (to uphold the constitutionality of lethal injection) and Kennedy v. Louisiana (to uphold the constitutionality of the death penalty for child rape--at least in the worst cases). But in those cases, I agree with the positions taken by others in their opinions, not Scalia in his.
So, in Baze v. Rees, I agree with Roberts' view that the "cruel and unusual" prohibition does outlaw "intolerable risk[s]'' of "severe pain;" and in Kennedy v. Louisiana, with Alito's view that some crimes of child rape are even more morally depraved than some homicides and, thus, justify the death penalty even more than some homicides (if, of course, the death penalty is ever justified).
I find Scalia's and Thomas's position in Baze v. Rees (which Scalia had previously expressed), that the 8th Amendment only prohibits punishments such a crucifixion, burning alive, disemboweling, etc., absolutely repugnant to any civilized and enlightened view of criminal justice.
And I find Scalia's view in Kennedy v. Louisiana, criticizing the Court for actually believing that the Constitution calls for the exercise of judgement, to be an astonishingly puerile--or disingenuous--denial of the judicial role.
I disagree with his position, expressed in Harmelin v. Michigan, that the "cruel and unusual" prohibition can never be violated by an excessive sentence, regardless of how extremely disproportionate to the crime. The death penalty for blasphemy? For gay sex? Both were imposed in the past. For that reason, or for the rejection of any disproportionality consideration in "cruel and unusual," must such punishments really be upheld?
I also strenuously disagree with Scalia's positions in Atkins v. Virginia and Roper v. Simmons that a defendant's mental disability or youth have no bearing on the constitutionality of the death penalty.
Scalia's positions on punishment--much like his consistent rejection of racial minority protection and gay rights--were, in my view, among the most unattractive (i.e., deplorable and antediluvian--ok, maybe immediately post-diluvian) aspects of his jurisprudence.]

In the next and final post on Scalia's record, we'll take a look at his positions in search and seizure cases involving technology.