“Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”
—Associate Justice Clarence Thomas, rebutting the arguments of Justice Breyer, a long-time opponent of capital punishment regarding the denial of certiorari in a death-penalty case, Reynolds v. Florida.
Justice Breyer’s statement reiterated themes he has echoed before in death penalty cases:
- “Lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale”;
- Jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and
- The constitutionality of the death penalty should be reconsidered.
Justice Thomas’s entire statement in rebuttal, ending in the section quoted above, is excellent…
[1] Justice Breyer’s first concern is “that the death penalty might not be administered for another 40 years or more” after the jury’s verdict. That is a reason to carry out the death penalty sooner, not to decline to impose it. In any event, petitioner evidently is not bothered by delay. Petitioner has litigated all the way through the state courts and petitioned this Court for review three separate times. He can avoid “endur[ing]” an “unconscionably long dela[y]” [Breyer’s words] by submitting to what the people of Florida have deemed him to deserve: execution. It makes a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.
It is no mystery why it often takes decades to execute a convicted murderer. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences.
[2] On the night of July 21, 1998, petitioner Michael Gordon Reynolds murdered nearly an entire family. While the father, Danny Ray Privett, relieved himself outside the family’s camping trailer, petitioner snuck up behind him and “viciously and deliberately battered [his] skull with a piece of concrete.” Petitioner would later explain: “‘[W]ith my record’”—which included aggravated robbery, aggravated assault, and aggravated battery—“‘I couldn’t afford to leave any witnesses.’” So petitioner entered the trailer, where he brutally beat, stabbed, and murdered Privett’s girlfriend, Robin Razor, and their 11-year-old daughter, Christina Razor. Robin “suffered multiple stab wounds along with multiple blows to the side of her face and a broken neck resulting in injuries to her spinal cord.” She desperately fought back, suffering “significant defensive wounds” and “torment wounds”—shallow slashes that occur when “the perpetrator tak[es] a depraved, measured approach to the infliction of the injury and tak[es] pleasure in his cruel activity.” Eleven-year-old Christina also resisted, suffering “blunt force trauma to her head, a stab wound to the base of her neck that pierced her heart, and another stab wound to her right shoulder that pierced her lung and lacerated her pulmonary artery.” Only petitioner knows whether Robin had to watch her daughter die, or whether Christina had to watch her mother die. “Regardless, in the close confines of that cramped camping trailer, Christina Razor, in great pain and fear, was forced to fight a losing battle for her life knowing that either her mother had already been killed and she was next or that after Reynolds killed her, he was sure to end her mother’s life.” “For a child to experience the fear, terror and emotional strain that accompanied Christina Razor as she fought for her life, knowing full well that she was fighting a losing battle, is unimaginable, heinous, atrocious and cruel.” “Christina was found not wearing any underwear,” and petitioner’s DNA was matched to both a pubic hair and Christina’s underwear, both found near her body….
Justice Breyer worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. In light of petitioner’s actions, I have no such worry, and I write separately to alleviate Justice Breyer’s concerns.
[3] Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.
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Pointer and Source: National Review
Ethics Alarms 
Just remember, this is from the justice that Harry Reid said “He’s lacking in independent thought” and “His opinions are poorly written.”
The Death Penalty is the absolute PERFECT punishment both an IMPERFECT Criminal Justice System and IMPERFECT human beings can impose on defendants. It is morally repugnant and regrettable, but only once the inevitable posthumous exoneration of a “guilty” recipient of society’s irrevocable sentence will the High Court have no choice but to confront this impermissible affront on the Constitution’s Due Process protections. Respectfully, Justice Thomas and other proponents can speak with the understandable support of the survivors – as well as in the voices of the lost victims. And there is no one – emphasize NO ONE – of any reason who does not hear what they say or is unsympathetic to the voices represented.
But the ETHICAL AND CONSTITUTIONAL QUESTIONS must be just because we must NEVER turn deaf ears to those lost to heinous crimes or their survivors, are we an INFALLIBLE society having created an INFALLIBLE method of quieting those cries. The news is filled with reports over and over and over and over again of individuals exiting prisons – many after years on Death Rows for similar heinous crimes – after evidence to convictions “beyond a reasonable doubt” were beyond wrong and false. If we are as a society proving we have failed LIVING “murderers”, how can it not be out of the realm of possibility we will fail and learn of our failure too late? What is the proper remedy that can be sought by an innocent killed by the system? Whose voices speak loudly for that individual and the individual’s loved ones? [And I highly doubt that Rationalizations such as The Individual Was Not A Good Person Really or Society Is Still Justified Because We Usually Are Correct bear recognition…]
Justice Thomas speaks a truth. He speaks for me – or certainly as I would imagine I would expect someone to speak as a victim survivor. But the reason the Distinguished Associate Justice does not speak the Complete Truth – the Constitutional Truth – has to do with the countless men and women who experienced the heinous ways of the “justice system” because they were thought to have committed some of these “heinous crimes”. That is why Justice Breyer continues also to speak a truth. And sadly, because we are incapable of seeking everywhere – Justice Thomas, Justice Breyer, and the multiple exonerations all around us – to find and act upon the Unified Truth, we will deal with all this at that tragic time of post-execution reckoning.
In this blog, it is really not necessary to shout, indeed it diminishes your argument as people will tend to see it as a posting of talking points. And, in fact, that’s how I read your post.
I have waffled on the death penalty over the decades. But I do recognize a quote, from a distinguished prosecutor I believe, that went something like, “If the death penalty is not appropriate in this case, when would it ever be?”
I associate that quote with the Manson murders, but it seems to apply in this case as well.
No one shall be deprived of life, liberty or property without due process. Clearly the deprivation of life is acknowledged by the Constitution as the most extreme remedy after beyond reasonable doubt guilt via due process is fulfilled. The guilty person is deemed beyond human redemption or the crime too heinous to potentially loose the guilty party upon society by accidental release, parole or escape with risk of its repetition.
People have been wrongly accused, convicted and even executed. This does not mean the existence and social as well as physical protections offered by capital punishment is wrong. It does call us to ever seek greater perfection in human decisions.
The argument made my MM above is akin to gun control enthusiasts who seek to disarm all even if it is to save just one life from a gun wielding insane individual. This is not how societies should form laws. If they did, those same societies would likely vanish in chaos and lawlessness.
If we are waiting for perfection from human law, prosecutors, defense attorneys, judges and juries, we shall never pass judgement on anyone for anything.
If anyone has a better method for a justice system, please bring it to the world’s attention.
This is the risk that we accept.
We accept the probability of dying in car crashes to have the convenience of being able to travel in automobiles.
We accept the probability of getting killed in airline crashes to be able to travel across the world in less than a day.
We accept a probability of killing noncombatants in order to have the protection of a nuclear arsenal.
Agreed.
No. We shall not allow the acceptance of the colloquial red herring of the interaction of the contentious gun-control debate into this discourse. For one, the mere suggestion that all guns should be collected because one wrongly kills has no bearing here for society IS NOT BY LAW DISTRIBUTING the guns in the first place. The acquisition remains an INDIVIDUAL CHOICE protected by the Second Amendment. The Imperfect Society, however, is in fact BY LAW performing executions.
A definition of “imperfect” now seems apropos. The category, of course, de facto includes that which lacks perfection implicitly through no fault of its own. We are by definition flawed and at our best when WE DO STRIVE to be better. Not perfect, but better. However, this definition also incorporates the devious nature also endemic within us. That is to say not only do we make innocent mistakes, but we also work in deliberate, calculated, premeditated fashions often with malice intended to distort the scales of justice. We corrupt the system, and there is absolutely nothing “harmless or innocent” about this category of imperfections. Law enforcement taint or plant evidence – sometimes with the wink and the nod of prosecutors, who themselves may illegally withhold exculpatory information from the defense, which itself may choose to breach ethical canons and fail thoroughly to investigate the clients’ assertions in order to mount a vigorous defense before the members of the jury – some of whom may have lied about preconceived notions and/or experiences or relationships that make them incapable of following the law and considering exclusively the evidence placed before them. Therefore, it is axiomatic that an Imperfect Society is not necessarily something from which Society truly seeks to emerge from.
AIJim publicly acknowledges that with which I must agree even though I prefer only to discuss these issues in the future tense: that we have ALREADY within our society executed wrongly convicted individuals. His conclusion is that should we remain so concerned with this fact while capital punishment ultimately serves to protect society from those considered dangerous to its innocent members, we essentially become an effective society too fearful to pass and implement meaningful protections. I vehemently disagree. I submit any organized group that embraces and accepts the (sometimes deliberate and malicious) execution of The Innocent as part of its necessary mechanism to protect – The Innocent – has surrendered all rights to pledge any fealty to even the most scant definition of a Civilized Society. Let alone a lawful one… The Founding Fathers were explicit in ensuring a Society wherein no matter at what stage a group or individual became aggrieved or even by home (see the 3/5 Compromise), that group or individual would be able to access the full resources of the Society in order to gain due process and a proper remedy. The Death Penalty flies absolutely in the face of those precepts. For those same Founding Fathers acknowledged it was beyond the scope of humanity to endow the Right to Life – thereby making it axiomatic again that humanity can do nothing to correct its errors once it has done what it CAN in revoking that Right.
How, exactly, does society embrace and accept executions of the Innocent?
The theory is that since the Death Penalty isn’t 100% perfect and beyond error, then the punishment is intrinsically unjust.
Of course, the same argument could be applied to imprisonment.Or fines. Or any punishment.
But is that the argument?
I always thought the argument is that because it isn’t 100% perfect, and errant sentences CANNOT be remedied because of the obvious finality of the punishment, then it is unjust.
Whereas errant sentencing regarding imprisonment, fines, or other non-lethal punishments at least have some ability to mitigate the harm done to the falsely convicted, as the falsely convicted is at least still alive to enjoy such a remedy.
There’s no slippery slope THERE, and the right way to mitigate the imperfections in death penalty cases is not to throw out the death penalty, but, as I think the blogizens here have all generally conceded, to make the standard of execution “beyond all doubt” instead of just “reasonable doubt” and for all other levels of proof that the punishment be mere life imprisonment.
“Beyond all doubt” of course needs it’s own reasonable definition lest the Death Penalty never be applied and it loses all meaning.
During our reasoned and courteous discourse, AdImageJim publicly acknowledged what I was only willing to imply – choosing rather to focus on upcoming likely events: Society has executed those wrongfully convicted (that is to say, innocent) of the crimes for which they stood accused. In advance, I beg his indulgence for not being able to provide his argument its full representation here, but as I understood it the core of his premise was capital punishment was nevertheless necessary for there was no other effective means (because of the possibility of escape, etc.) of protecting the members of Society from the most evil and dangerous individuals. And while I stress having both heard this point of view presented passionately during my time as a criminal courts journalist and also being able to identify with it, I cannot ultimately accept it because of what we must also concede to be true. In the process of protecting the Innocents of Society, we are de facto embracing and accepting the killing of Innocents. I find that to be an acceptable duplicity.
As to Jack’s equivocation, respectfully, that I am arguing that the Death Penalty is intrinsically unjust because it is not 100% perfect – but neither is the laundry list of other punishments he proffers, he misses the point.
For all the mentioned punishments, corrective actions can be taken once the error is finally brought to light through whatever mechanism is available to the aggrieved party. Heck, even individuals who have been on Death Row have seen their lives spared and subsequently been able to seek legitimate due process claims of wrongful prosecution.
My Real Point is what due process and remedies and relief are available to the Executed Innocent?
Weregild to the estate of the deceased.
The same remedy available to those killed in airplane crashes and car crashes.
The same remedy available to those who were wrongfully shot to death by police (which happens far more often than innocents being executed after being sentenced to death.)
As I stated in another comment in this post, we accept the risk of innocents getting killed in airplane crashes for the convenience of being able to travel across the world in less than a day, instead of eighty days.
To quote our former State Governor, Rick Perry: “If you come to Texas and kill someone, we may kill you back.”
Amazing how much lower such crime is in state that might kill you back.
Yeah, I was wondering at that much love of capped words too. After a handful, I start skimming for more reason than reactionary. I also have sometimes waffled on the issue of executions, but does confirm to the utmost level that society has a right and obligation to ensure some crimes are called due. Weak punishment could be seen as akin to deficit spending: if allowing kindness and mercy becomes permanent, people will always take advantage of it. My objection right now is mostly on the higher costs, but that has the odd effect of giving the perp a roof and three square that the rest of us have to worry about. The wave of appeals that DNA reversed was also an issue. –But– there are enough clear cases like this one where the execution should be sooner and not denied for issues unrelated to the case.
The Supreme Court is to blame for the lengthy delays in executions. It all arose from Trop v. Dulles, 356 U.S. 86, 101 (1958)
I took a clinic in the death penalty my third year of law school, and most of the kids in it (except for myself and a prosecutor-to-be) were gung-ho against the death penalty often in the most arrogant ways. They would say things like “How could anyone who respects life be for the death penalty?” without even considering that there are clearly lives on both sides of the debate. It was very frustrating for me (and probably wasn’t the clinic I should have been in, but that’s a story for another day).
I don’t have a problem with anyone being against the death penalty, but get rid of it the American way, convince half or more of the voters that it’s a bad idea, and let them vote in officials who will end the policy. Don’t try to take shortcuts through the Constitution, which obviously doesn’t prohibit the death penalty (as the death penalty is contemplated therein).
>>but get rid of it the American way, convince half or more of the voters that it’s a bad idea, and let them vote in officials who will end the policy.
Perhaps the best argument I’ve heard on this subject in a long time. It might take a constitutional amendment to do so — appropriate since, as you mention, the Constitution obviously references it.
I think that this isn’t done because people realize that such an amendment would never pass. I don’t think the death penalty is an unpopular measure.
No matter what we do, we will always live in an imperfect society. No matter what we do, innocent people will sometimes be convicted of a crime they didn’t commit. That doesn’t mean we shouldn’t strive to make that as unlikely as possible — the old saying that better 10 guilty men go free than one innocent goes to jail. But to assert we can be perfect is to deny that we are human beings.
Mr. Miller is passionate about this subject. I hope that he will participate in other discussions here as well.
I’ve been steadily leaning more to the anti-capital-punishment side of the argument as I get older. It seems the more incompetence I see from government and the justice system, the less I’m willing to accept that they’ll get it right on the death penalty every time. I didn’t always feel that way, but it’s hard to watch, for example, Florida completely fail to competently execute a basic task like counting pencil marks on paper and think, “these people can absolutely be trusted to decide whether someone lives or dies”.
Justice Thomas’ statement is right on the money and couldn’t be clearer. Justice Breyer has also made it clear where he stands, and said as much in his forty-page dissent in Glossip v.Gross. He does not believe the death penalty is constitutional, and called for a constitutional challenge to it on those grounds. Justice Stevens, opposed to the death penalty, knew as much and called for the Eighth Amendment to be specifically revised to rule the death penalty out as cruel and unusual (as well as five more amendments to overturn cases where he’d been in the minority).
The fact is that we can go round and round the jousting field on this issue until we’re spent, but almost no minds will be changed. Capital punishment is an article of faith to most people who believe in it or believe against it. Those who are for it think those against it are weak-kneed, soft on crime, and hypocrites, because those most opposed to capital punishment are often also vocal advocates for abortion as far as it can be extended. Those against it think those for it are uncivilized, barbaric, vengeful, and also hypocrites, because again, those strongest in favor of the death penalty are often very anti-abortion, it just seems to go with being a political conservative.
Frankly neither side has absolute proof on their side, since studies just seem to be inconclusive as to whether it is a deterrent or not, whether it fills its purpose or not, and so on. I put very little stock in studies, since you always wonder who commissioned them, what was the methodology, etc. However, the argument that the Constitution prohibits the death penalty is without merit.
Actually, I am pleased to be able to participate in both democracy and a blog where individuals may strongly disagree vis-à-vis your last statement in a civilized fashion. For I strongly believe I have put forth with merit reasons why the Death Penalty is unconstitutional. It is also refreshing to be able to assist one another in relieving the overwhelming burden of stereotyping. Many many years ago, when I covered a visit of Pope John Paul II to the US, I met a woman who was part of a group of non-Catholics who were strongly pro-life. She was present in Miami to show solidarity with the Church’s strong antiabortion stance. I remember that she apologized during one of our interviews that she would have to cut the conversation short. She had to attend a rally against – repeat, against – the Death Penalty. I was, of course suddenly and foolishly taken aback. That is until she explained that as far as she was concerned, the taking of a human life – whether at the start or the finish – in a manner sanctioned by the Society was an immoral act.
Go Figure…
Now on your key point – the fact there will not be any actual Movement on this issue anytime soon – you and I are in complete synchronicity. That has been my position from the beginning as well. Regretfully, as I have previously stated, because we are incapable of taking a page from Scripture and saying to one another, “Come, let us reason together,” this is in our future: There will be a Public – focus on Public – Posthumous Exoneration of an Innocent that will force us to confront this issue head on under the harsh international spotlight brought about by the overwhelming majority of the nations of the world who Do Not have Capital Punishment – including countless allies and democracies with similar systems of jurisprudence.
That has already happened in our past.
I am sure that you have heard of Sacco and Vanzetti.
“…overwhelming majority of the nations of the world who Do Not have Capital Punishment”
So what?
None of those countries are America.
I never finished MM’s comment because I assumed arguments like that one would turn up. The most threadbare and desperate of the threadbare and desperate. The overwhelming majority of the nations of the world have rejected freedom of speech. That tells me all I need to know about following their lead…
In those other nations, police can search people, homes, and effects if they merely feel like it.
And keep whatever they feel like. You have no rights to protest.
And if they are innocent, they have nothing to fear!!!
“There will be a Public – focus on Public – Posthumous Exoneration of an Innocent that will force us to confront this issue head on under the harsh international spotlight brought about by the overwhelming majority of the nations of the world who Do Not have Capital Punishment – including countless allies and democracies with similar systems of jurisprudence.”
Just as soon as America is no longer footing the bill for securing the entire global economic system I might turn an ear to what they have to say about our internal affairs. Maybe. But I won’t agree with it.
The Death Penalty should be legal, safe, and rare.
nice
Death Penalty is only 3% of what Government does.
Ouch…
I saw what you did there…