In one of yesterday’s entries (“The Most Dangerous Branch, cont’d”), I argued that the courts are chipping away — when they are not discarding wholesale — policy judgments properly left to the elected branches. The particular focus of my entry was a case my colleague John Armor had mentioned, Smith v. Texas. There, the Supreme Court, by a one-vote margin, overturned for the second time a death sentence that a unanimous jury had imposed for a particularly grisly murder. I argued that the Court’s decision said less about the the propriety of the jury instruction on mitigation (which was the majority’s ostensible focus) than it did about the courts’ — and especially the Supreme Court’s — increasing inclination simply to paste into the Constitution the social and legal policies it prefers.
Among the policies currently in vogue, at least with the Court’s liberals, is a strain of deep skepticism about the death penalty. As I noted, this skepticism persists notwithstanding that the death penalty enjoys overwhelming public support — slightly better than two-to-one — and has been part of American law virtually since the founding. And it’s not just that the death penalty enjoys broad support among voters; it’s that historically, it has enjoyed even broader support among judges. Our country has had 112 Supreme Court Justices, and of that number, only three — Brennan, Marshall and Blackmun — have taken the view that the death penalty per se violates the constitutional ban on cruel and unusual punishment. One would think that a margin of 109 to 3 would be enough to inspire something resembling a sense of modesty among the death penalty skeptics currently on the Court. But one would need to think again.
The principal argument now made against the death penalty is that it has resulted in the execution of innocent people. That, indeed, was the overarching theme among the Court’s liberals when they dissented in a case called Kansas v. Marsh, No. 04-1170, June 26, 2006. It is therefore well worth reading Justice Scalia’s concurring opinion in that case, which constitutes the most devastating critique of the we’re-executing-innocents argument I have ever seen. Not surprisingly, much of Scalia’s discussion is devoted to explaining that, so far as the actual facts show, we have not, in the modern era and probably for decades before then, executed a single innocent person. I excerpt below a few paragraphs from Justice Scalia’s opinion (footnotes omitted):
“[T]he dissenters’ [attempt to encumber] the death penalty…with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it, [is] the product of their policy views–views not shared by the vast majority of the American people. The dissenters’ proclamation of their policy agenda in the present case is especially striking because it is nailed to the door of the wrong church–that is, set forth in a case litigating a rule that has nothing to do with the evaluation of guilt or innocence….
“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.) 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.”
For those interested in the death penalty, it’s worth reading every word of the Scalia concurrence in Marsh.
Why the Court’s liberals (and liberals everywhere) are so ready to believe that the United States executes innocent people — in the face of the evidence that we don’t — is another question, and a very important one. As I shall attempt to explain later, I believe it is because liberals view the United States as so engulfed in a history of roughshod capitalism, militarism and, of course, racism, that we have forfeited the right to moral confidence. And a country lacking justified moral confidence has a shaky claim at best on the right to execute anyone — or forcefully to resist its foreign enemies, protect its borders, preserve its civil institutions (from traditional marriage to the Boy Scouts), defend its academic standards (from, for example, race-based admissions policies), and on and on.
Thus, in the future, I want to return to this theme. For now, I am content to note that, so far as the actual evidence shows, no, we are not executing the innocent, and the quick willingness to believe we are bespeaks a reservoir of moral doubt about America that promises nothing but trouble.