Monthly Archives: March 2017

Andrew Harnik, Associated Press

FILE - In this Feb. 14, 2017, file photo, Supreme Court Justice nominee Neil Gorsuch meets with Sen. Chris Coons, D-Del. on Capitol Hill in Washington. Gorsuch is roundly described by colleagues and friends as a silver-haired combination of wicked smarts, down-to-earth modesty, disarming warmth and careful deliberation. His critics largely agree with that view of the self-described workaday judge in polyester robes. Even so, theyre not sure its enough to warrant giving him a spot on the court. (AP Photo/Andrew Harnik, File)

WASHINGTON This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" majorities' rights is the essence of the American project. Is it, or is liberty?

Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place (certain subjects) beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

Chief Justice John Roberts says the doctrine of stare decisis previous court decisions are owed respect is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgments of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgment, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

George Will's email address is georgewill@washpost.com.

Originally posted here:
George Will: Questions for Judge Gorsuch - Deseret News

In a recent column ("Flawed Judicial Mindset," March 3), Dana Kelley argues that the death penalty is plainly constitutional. Therefore, he reasons, if the Supreme Court strikes down the ultimate sanction, the justices will be altering the U.S. Constitution rather than interpreting it. That would be an act of judicial "tyranny" because the Constitution may only be changed by Congress and the states via the formal amendment process set forth in Article V of our governing charter.

I disagree with Mr. Kelley's analysis in multiple respects.

Let me begin by disclosing my own biases. I believe that the death penalty is morally justified in principle. There are some crimes for which execution is a morally appropriate punishment. However, I also believe that the death penalty is not morally justified in practice.

While I hold this latter view on multiple grounds, the two most important are as follows.

First, according to the preponderance of the empirical evidence, the death penalty does not deter crime any more effectively than the sentence of life without the possibility of parole.

Second, our criminal justice system, while the best and most reliable in the world, is far from perfect. A small but critical percentage of jury trials result in a wrongful conviction. This is demonstrated by, among other things, the string of exonerations of death row inmates over the last three decades thanks to improved analysis of DNA. Furthermore, many leading criminal law scholars have concluded that innocent people have in fact been executed in this country. Thus, the risk of imposing the death penalty on an innocent person is simply too great given that the punishment has no supplemental deterrent effect in comparison to life without parole.

The morality and legality of the death penalty are two different issues. And Mr. Kelley's piece concerns the law. So now let's turn to that subject. Mr. Kelley rightly points out that certain parts of the Constitution appear to presume the existence of the death penalty. In particular, the Fifth Amendment provides that no person "shall be held to answer for a capital ... crime, unless" the person is indicted by a grand jury. And the amendment also states that a person may not be "deprived of life ... without due process of law." He says that these clauses codify capital punishment; they establish that the Constitution "allows the government to impose a death sentence, as long as it is the product of due process." But the story is considerably more complicated.

To begin with, the Fifth Amendment grants no government powers. Instead, it places limits on such power. Thus, the authority to execute a criminal must first be identified elsewhere in the Constitution. For state governments, the power to impose capital punishment is provided by the 10th Amendment, which grants states general authority to regulate the affairs within their borders. For our national government, the power comes from Article I, Section 8 of the Constitution, which identifies the legal domains that are subject to federal regulation.

But here is the key point: Any exercise of government power--state or federal--is prohibited if it violates one of the rights-bearing provisions of the Constitution, such as those set forth in the Bill of Rights and the 14th Amendment. For example, Congress is expressly granted the authority to regulate interstate commerce. But if it enacts a statute designed to govern the national economy that also happens to restrict the freedom of speech, then the law is unconstitutional because it violates the First Amendment. The death penalty is subject to the same limitations. Application of the ultimate sanction must be consistent with not only the due process clause, as Mr. Kelley explains, but also with every other rights-bearing provision in our national charter.

One of the most important such provisions is the equal protection clause of the 14th Amendment. It requires that governments not discriminate on the basis of race, sex, and several other grounds. Unfortunately, there is considerable racial discrimination in our criminal justice system. And much research establishes that the death penalty itself is applied in racially discriminatory ways. As a result, there is a powerful argument that capital punishment--as currently applied in the United States--violates the 14th Amendment's equal protection clause.

At most, the 14th Amendment only bars capital punishment until we can expunge disparate racial treatment from our enforcement of criminal law. Does any part of the Constitution go further? In particular, might the Eighth Amendment's prohibition on cruel and unusual punishment make the death penalty unconstitutional more generally? Mr. Kelley thinks the answer is absolutely not. He relies upon Justice Scalia's argument that the framers of the Constitution could not have believed that the death penalty violates the Eighth Amendment because they wrote the Fifth Amendment, which expressly contemplates that executions will be carried out in at least some circumstances. And, Justice Scalia continued, the Eighth Amendment must be interpreted consistently with how it was understood in the late 18th century.

The problem here is that there is considerable evidence that the framers thought that the meaning of "cruel and unusual" would change with time. After all, they used the word "unusual." What is unusual is constantly evolving as governments alter the laws of punishment. It is thus quite reasonable to believe that the death penalty, as a matter of constitutional law, is now cruel and unusual, even though it was not so in 1790.

Now, I actually agree with Mr. Kelley's conclusion about executions and the Eighth Amendment: I do not think that the death penalty is unconstitutional as cruel and unusual punishment. My point here is this: there is a plausible legal argument that Mr. Kelley and I are wrong. And thus, should the Supreme Court strike down the death penalty on Eighth Amendment grounds, that will clearly not be an act of tyranny. It will, at worst, simply be a case where the Supreme Court got it wrong on a legal issue over which reasonable and fair minds can differ. And if the High Court instead uses the 14th Amendment to invalidate capital punishment temporarily, the justices will be on even firmer ground. Indeed, I think they will be right.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions in this column are his own.

Editorial on 03/19/2017

Original post:
Death penalty might indeed be unconstitutional - NWAOnline

Few things seem so clear: We ought not kill other people without a compelling reason to do so.

Most of us agree with this; what divides us is the definition of a compelling reason. If a scary man who says he means to do you harm is coming at you with a gun or a knife, you might be justified in shooting him. You can defend yourself, your family, or another person. In wartime, soldiers kill on behalf of nations. Some wars need to be fought.

But take a man from a cage, strap him to a gurney and pump him full of chemicals until his heart stops? That's unnecessary and unworthy of a sober nation. That is a retributive act, an attempt at cosmic balancing of accounts better left to higher authority. Society deserves better.

I understand the other side well enough to argue for it. The death penalty exacts an ultimate, awesome price and respects the majesty of the moral order. Some crimes are so heinous that life in prison seems an inadequate punishment; there are some crimes that cannot be countenanced. Obliteration is a fair tariff for monstrous acts.

The constitutionality of the death penalty is not in serious doubt; it is explicitly addressed in the Fifth Amendment that holds no person shall be "deprived of life ... without due process of law." We've no legal impediment to execution, only moral qualms and pragmatic problems.

If we could somehow ensure that it is genuinely reserved for the worst offenders, applied fairly and doesn't disproportionately affect the poor and powerless, maybe we can justify it. If it actually provides a measure of comfort to the families of victims or prevents other murders, we might consider it worth the costs.

But it's doubtful it does any of these things. Our justice system is flawed; money buys a better class of defense. Innocent people have been convicted and executed in this country. Dozens have been exonerated while on death row. Politics cause trials to become theater. And prosecutors are often elected officials with an incentive to play to the crowd--to present themselves as fearless avengers of society.

While no one can blame a grieving family for longing for the catharsis they imagine the death of a murderer might bring, there's evidence that it doesn't do that. A 2007 University of Minnesota study by anthropology and sociology professor Scott Vollum found only 17 percent of victims' families--styled as "co-victims"--said the execution of their loved one's killer brought them a degree of comfort, as opposed to 20 percent who said the execution didn't help at all. This isn't surprising since no one would suggest that they are made whole by the carrying out of the sentence. As one of Vollum's co-victims said, "Healing is a process, not an event."

As for the death penalty being a deterrent, there's little reason to believe murderers will be put off by the possibility of facing the ultimate punishment at some point in the future. (A 2008 study found that 88 percent of criminologists reject the idea that the death penalty is a deterrent to crime.) Most murders are committed out of desperation or in the heat of passion; those that are coolly contemplated involve many risks that are far more immediate than being caught and tried and sentenced to death.

While it's instructive to remember murder rates tend to be lower in places without the death penalty than in places with it, my real objection is that it's wrong kill people when you don't have to. And we don't have to kill incarcerated criminals.

Sure, there's always a possibility that if you don't erase a person, that person might prove troublesome or dangerous in the future. Killing them ensures they won't commit any more crimes.

And that also eliminates any possibility of them making future contributions to society. Yes, the possibility is remote, but we should also consider the effects of the death penalty on the innocent people--family, friends, attorneys and others--in the condemned's life. Last year sociologist Michael Radelet of the University of Colorado at Boulder compared "the retributive effects" of the death penalty on these folks and concluded "that the death penalty's added punishment over [life without parole] often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact disproportionately punishes women and children."

This, he writes, undermines "the principle that the criminal justice system punishes only the guilty and never the innocent. The death penalty affects everyone who knows, cares for, or works with the death row inmate."

It affects all of us. It makes our world coarser, more brutal.

There's no compelling reason to do it.

pmartin@arkansasonline.com

Read more at

http://www.blooddirtangels.com

Editorial on 03/19/2017

Visit link:
There is no compelling reason for revenge - Arkansas Online