One area in which the likely arrival of the Biden administration will surely signal furious back-tracking efforts will be the perpetual moral and ethical controversy over capital punishment. The execution of Orlando Hall was the eighth since the Trump administration revived capital punishment for federal crimes and the first of three scheduled during the presidential transition, if there is one.
The progressive way of the moment is to minimize or eliminate any punishment whatsoever for crimes. President-sort-of-elect Biden, in an exuberant moment, said during the campaign that there shouldn’t be prison time for any non-violent crimes. (Any non-violent crimes, Joe?) In the throes of the George Floyd Ethics Train Wreck, the bonkers concept has been promoted by the Black Lives Matter constituency that the justice system is so racist that punishing any black citizen for any crime is perpetuating “systemic racism.” Here’s Ellie Mystal, The Nation’s “justice correspondent,” writing way back in 2016:
“Black people lucky enough to get on a jury could use that power to acquit any person charged with a crime against white men and white male institutions. It’s not about the race of the defendant, but if the alleged victim is a white guy, or his bank, or his position, or his authority: we could acquit. Assault? Acquit. Burglary? Acquit. Insider trading? Acquit.Murder? … what the hell do you think is happening to black people out here? What the hell do you think we’re complaining about when your cops shoot us or choke us? Acquit. Don’t throw “murder” at me like it’s some kind of moral fault line where the risk of letting one go is too great. Black people ARE BEING MURDERED, and the system isn’t doing a damn thing to hold their killers accountable. Sorry I’m not sorry if this protest idea would put the shoe on the other foot for a change.”
Mystal isn’t alone, and since the death of Floyd with a white police officer’s knee on his neck, his logic, if you can call it that, has become infectious. Race is a factor that may signal bias by jurors: major political leaders, pundits are and academics are arguing directly that all whites are prejudiced against blacks, and Mystal’s ilk are calling on black jurors to acquit even guilty black defendants as cultural “tit for tat.” (Ellie’s a lawyer and still reached this conclusion, and still is employed as an authority. But don’t get me started on Ellie.)
It is time to reconsider and perhaps revise the absolute principle the Supreme Court articulated in Batson v. Kentucky, 476 U.S. 79 (1986), the landmark decision ruling that a prosecutor’s use of a peremptory challenge in a criminal case, dismissing a juror without stating reason for doing so, may not be used to exclude jurors based solely on their race. After all, if all whites are secretly or subconsciously hostile to blacks, they can’t be trusted to judge the guilt of a black defendant, and if blacks are being urged to fight systemic racism and “mass incarceration” by acquitting guilty black criminals, they can’t be trusted either.
Maybe what we need is all Asian-American juries.
But I digress…slightly. Here was the ABA Journal’s headline regarding the execution of black death row inmate Orlando Hall: “Federal inmate tried by all-white jury is executed after Supreme Court lifts execution stay.” Justices Breyer, Sotomayor and Kagan, the so-called liberal minority on the Court, dissented from the Supreme Court order allowing the execution to proceed without explaining their dissent. They don’t have to. Biden has said he will work to end the use of capital punishment by the federal government, reversing President Trump’s support for it: the Left considers the death penalty to be an 8th Amendment breach, “cruel and unusual” punishment.