Convictions : rape

Up the Road From Scottsboro, Justice Stevens Speaks Out Against Capital Punishment

Diane Marie Amann — Mon, 12 May 2008 18:36:00 GMT

It seems fitting that Justice John Paul Stevens chose Chattanooga, Tenn., for his first public comments since he declared that capital punishment is unconstitutional with these words in Baze v. Rees:

[T]he imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

Stevens reaffirmed that conclusion Friday, telling jurists assembled in Chattanooga for the 6th Circuit Judicial Conference that when Eight Belles collapsed after placing second in the May 3 Kentucky Derby and was put to death on the track, "'I had checked the procedure they used to kill the horse.'" He discovered that Kentucky forbids using on animals one of the three drugs frequently employed in lethal-injection executions. According to Monica Mercer of the Chattanooga Times Free Press, Stevens "suggested" that the doomed filly "had probably experienced a more humane death than those who die on death row."

Chattanooga, it may be remembered, was the intended destination of nine African-American young men whom a sheriff's posse pulled off a freight train and brought to Scottsboro, Ala., where within weeks most were convicted of capital rape (a crime now under Supreme Court review) and sentenced to death.
On this date in 1931, eight of the condemned Scottsboro defendants were interviewed by teacher/author/activist Hollace Ransdell, who wrote in her report, commissioned by the American Civil Liberties Union:

I visited them there in their cells in the death row on May 12, locked up two together in a cell, frightened children caught in a terrible trap without understanding what it is all about.

Cases of two Scottsboro defendants resulted in landmark Supreme Court judgments: Powell v. Alabama (1932) established that the Constitution guarantees indigent capital defendants a right to effective appointed counsel, while Norris v. Alabama (1935) held that the county's systematic exclusion of African-Americans from the jury pool violated the Constitution's equal-protection guarantees. No Scottsboro defendant was executed.

Alabama retains capital punishment, however, as do three of the four states in the 6th Circuit: Kentucky, home to the derby and the Baze case; Tennessee, home to Chattanooga; and Ohio have a total of four women and 317 men on death row (the fourth state in the circuit, Michigan, does not permit the death penalty). Thus it's worth noting that Stevens' criticism of the sentence reportedly "drew a round of applause" from the scores of federal judges and hundreds of lawyers in attendance.

Stevens indicated that even as he continues to adhere to court precedents authorizing capital punishment—indeed, he voted against capital defendants on the precise issues at bar in Baze and in a consular-access case, Medellín—he welcomes discussion on the ultimate question. Referring to the former decision, Chattanooga's Mercer wrote:

Justice Stevens ... conceded his opinion would 'generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.'

(Cross-posted at IntLawGrrls blog)

SCOTUS hits primetime . . .

Dahlia Lithwick — Wed, 23 Apr 2008 14:06:00 GMT

Anyone happen to catch ABC’s Boston Legal last night? I’ve never watched the show, but somehow found myself gaping through an episode in which James Spader argues what turned out to be last week’s Louisiana capital rape case before an astoundingly good simulation of the current high court. They found actors who looked enough like the justices to be credible, Spader pretty much argued the brief in Kennedy, and the writers allowed an entire 15 minute segment just for his oral argument. I can’t recall another time I’ve seen anything as close to the real justices represented on prime time television, or a moment in which someone in the popular culture – outside an op/ed -- really took on the Roberts Court as a collection of political actors rather than an abstract blur of black robe.

To be sure, David E. Kelly’s brief against the Roberts Court (too pro-death, too pro-business, too pro-Bush . . .) was more than a little overheated. The four conservative justices looked a little too smug and jowly. When Spader segued from arguing capital rape, to Bush v Gore and then the Exxon case I nearly threw a shoe at him. And when he cowed the conservatives into silence by reminding them of the court’s role as the nation’s “conscience” and its duty to the ideal of "mercy" I actually laughed out loud. Still, I am guessing ABC’s viewers learned more about the Supreme Court – how it looks and feels inside, how argument happens, how the various Justices behave, and how ideology is at least part of what they do – than they would have done in anything short of an actual visit to the court. And I can’t help but think that if more television and movies actually dealt with the court -- even a fictionalized one -- the public would better understand why the court matters and why elections matter.

No Time for Revival

Diane Marie Amann — Wed, 16 Apr 2008 10:10:00 GMT

Does the cruel-and-unusual punishments clause of the Eighth Amendment to the U.S. Constitution forbid execution for crimes that do not result in the death of the victim?

That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana.

The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim. No surprise there. For on matters such as possession of pornography, the court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved. Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.

Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the Eighth Amendment as cruel and unusual punishment?

Yes.

Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.

Concerns about crime have not, however, fully displaced the concerns that animated the court in Coker. The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries, briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African-American defendants, as Stuart Banner demonstrated in his The Death Penalty. Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.

(Cross-posted on IntLawGrrls blog)