Thursday, December 03, 2009

Clarence Thomas gives a smackdown to John Paul Stevens

In the death row case that the Supreme Court declined to take up yesterday, Justice Stevens and Breyer offered up their novel reason to overrule the death penalty. Fortunately, they seem to be the only two who ascribe to this theory that they seem to have just made up out of whole cloth.

A man was executed last night in Tennessee after having spent 29 years on death row. Stevens and Breyer voted to accept the case before the Court but couldn't get two other justices to go along with them. Part of the reasoning by John Paul Stevens for taking the case is his idea that spending so long on death row is in itself cruel and unusual punishment.
“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf. The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution. For more than 14 years, one or both of those Justices has been calling for review of the question of whether it is “cruel and unusual punishment” to put off execution for a long time, at least when that is due to delays that are not the fault of the inmate.

Such delays as Johnson had undergone, Stevens said, subject death row inmates “to decades of especially severe, dehumanizing conditions of confinement.” In addition, he wrote, long delays do not “further public purposes of retribution and deterrence,” but rather only “diminish whatever possible benefit society might receive” from the inmate’s ultimate death. “In other words, the penological justifications for the death penalty diminish as the delay lengthens.”
Clarence Thomas wrote a sharply worded response that takes Stevens to task for making up a brand new exception to the Eighth Amendment.
Justice Clarence Thomas, in a spirited response, said Johnson spent 29 years challenging his conviction and sentence and “now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out.”

Thomas said Stevens first proposed his “novel” Eighth Amendment argument 14 years ago. There was no support for the argument then and there is no support now, wrote Thomas.

Noting Stevens’ dissent and his criticism last week of states executing inmates before their appeals process has concluded, Thomas added, “In Justice Stevens’ view, it seems the state can never get the timing just right.” The reason, he said, is that Stevens believes the death penalty is wrong.

“But that is where he deviates from the Constitution and where proponents of his view are forced to find their support in precedent from the `European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.’”

There are alternatives to current procedural safeguards, added Thomas. As Blackstone observed, he said, the principle that punishment should follow the crime as early as possible was expressed in an English statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed, on the next day but one after sentence passed.”

Thomas wrote, “I have no doubt that such a system would avoid the diminishing justification problem Justice Stevens identifies, but I am equally confident that such a system would find little support from this Court.”