[Deathpenalty]death penalty news-----N.Y., N.J., USA
rhalperi at mail.smu.edu
Sun Mar 6 17:56:51 CST 2005
Despite moratorium, cases still eligible for death penalty
5 years after his brother was killed execution-style along with 4 others
at a Wendy's restaurant in Queens, Benjamin Nazario said life for his
family is not getting any easier.
Ramon Nazario's murder left his young son fatherless. Now the boy is 7
years old and still asks "why it happened," said his uncle, who came to
the state Capitol recently to push for passage of death penalty
During a news conference last week, Republican Senate Majority Leader
Joseph Bruno was asked who would be the first person eligible for death
under a bill to reinstate capital punishment that his chamber will pass
Wednesday. Before Bruno could answer, Benjamin Nazario, who was standing
by Senate leader's side, cut in and said, "Hopefully, it's the one I
John Taylor was convicted of first-degree murder in the Wendy's massacre.
With his case now under appeal, Taylor is one of four people in the state
who would be eligible retroactively for death should the Senate bill
Taylor was on death row when the state Court of Appeals in June
effectively placed a moratorium on executions in New York. It ruled that
jury-instruction provisions in the statute could coerce some jurors into
voting for death against a defendant.
Robert Shulman also was on death row then, condemned to die for killing
and dismembering three prostitutes around New York City. With his case
pending appeal, he also remains eligible for death should capital
punishment be reinstated.
Meanwhile, since the court ruling, two notices of intent to seek the death
penalty have been filed against accused killers in Rensselaer County,
according to the state Capital Defender's Office.
Prosecutors in New York state have 120 days from the time of indictment to
file a notice of intent to seek the death penalty against a defendant.
Within the last 120 days, five others across the state have been indicted
for 1st-degree murder, but notices have not been filed in those cases so
Republican Sen. Dale Volker of Erie County, who is carrying the death
penalty bill in the Senate, said the legislation addresses the Court of
Appeals concern by changing what happens when a jury can't reach a
verdict. In that event, he said, a sentence of life without parole would
be imposed and juries would be told of that provision before sentencing.
"What we're doing here is what the people want us to do," said Volker, a
former police officer.
David Kaczynski, executive director of New Yorkers Against the Death
Penalty, accused the Senate of trying to rush through a "quick fix."
Kaczynski - drawn into the national spotlight after leading authorities to
his brother, Unabomber Ted Kaczynski - said the advent of DNA evidence,
which has led to the exoneration of some individuals on death row, should
make both the Senate and Republican Gov. George Pataki, who backs the
legislation, move more slowly on the issue.
Kaczynski points to the metamorphosis of Assembly Judiciary Committee
Chairwoman Helene Weinstein. She voted for the death penalty in 1995, but
recently said she no longer considers capital punishment a detriment and
is concerned about convicting an innocent person.
Democratic Assembly Speaker Sheldon Silver has not said whether the death
penalty bill to be passed by the Senate will make it to the floor of his
house for a vote. Instead, he said the Assembly's next move is to review a
forthcoming report on testimony and information gathered during a series
of statewide Assembly public hearings examining the death penalty.
Silver's decision to hold off on voting on the issue means Gregory
Heckstall, who goes on trial Tuesday for first-degree murder in Rensselaer
County in the killing of a police informant, has no chance of being
sentenced to death if convicted.
Rensselaer County District Attorney Patricia DeAngelis is also seeking the
death penalty against Michael Hoffler, who was charged along with
Heckstall in the December 2003 slaying of informant Christopher Drabik.
Hoffler will go on trial after Heckstall.
Bruno said despite the change in attitude on the death penalty by some
members of the Assembly, the 1995 bill that reinstated capital punishment
in New York passed the Democratic-controlled lower house 94-52.
"If this bill gets to the (Assembly) floor, it will pass," Bruno
(source: Associated Press)
Marshall trial sparked TVs taste for court
The Robert O. Marshall capital murder case came at a time when the 24-hour
news cycle began and a trial involving sex, murder and greed fit the need
to feed viewers' and readers' desire for drama perfectly.
Whether in books, TV docu-dramas or cable news coverage, courts became
king in the late 1980s. The Marshall case hit just as media outlets such
as CNN were coming of age. And like many trials to come, the case took on
a life of its own.
The need to fill airtime helped catapult the trial of Marshall, an Ocean
County insurance broker, into the spotlight.
On March 5, 1986, Marshall was convicted of the Sept. 7, 1984,
murder-for-hire of his wife, Maria.
The couple were headed home from Atlantic City when they pulled into the
Lacey Township rest area on the Garden State Parkway. Marshall's wife was
shot to death while she was sitting in the car.
Marshall still sits on death row for the crime because co-conspirator
Billy Wayne McKinnon testified against him and 2 others in exchange for a
shorter sentence. Larry Thompson, whom McKinnon claimed was the gunman,
The case became a 1989 television movie. Best-selling author Joseph
McGinniss wrote the book "Blind Faith" about the case.
Like many other members of the media, McGinniss sat day after day in the
Marshall trial where 2 rows of seats were reserved just for members of the
press. Spectators also filled the courtroom.
"The press usually does not request to reserve seats," Atlantic County
Superior Court Judge Manuel Greenberg, who presided over the Marshall
case, said Friday. "Joe McGinniss wanted his own seat and then the rest of
the press said if he wanted one they wanted one too. There were about 20
"On most days there were a lot of spectators and when certain people
testified like Marshall's girlfriend you couldn't get a seat," said
Greenberg, who has since retired from the bench but still practices law.
"I was told that there were disputes when people had to use the bathroom
and someone wanted the person's seat."
In the early 1990s came MSNBC and Fox television. Court TV exploded in
popularity with its extensive coverage of celebrity trials beginning in
After the O.J. Simpson murder trial, there was no turning back a tide of
sensational trial coverage that led to the success of Court TV. Educators,
judges and lawyers say there is a fear that all of the coverage leads to
unfair trials because of people playing to the cameras.
Professor Richard Goedkoop, of the Department of Communication at LaSalle
University in Pennsylvania, said many factors contributed to the coverage
of celebrity trials and others that had all of the makings of a
made-for-television movie such as the Marshall case.
"There was an evolution of factors - a combination of increased cable news
stations, and a need to put material on the air all of the time and the
fascination with the celebrity trials," he said.
The reason for courtroom coverage: It lends itself to good television,
"There is a beginning, middle and end. It is tailor made for television.
You have the good guys and bad guys," he said.
But even before the sensational Marshall trial members of both the print
and electronic media converged on the Atlantic County Superior Courthouse
in 1979 where the first ever televised trial in the state was held.
Atlantic County Superior Court Judge Albert Garofolo, who presides over
the criminal division, was an assistant prosecutor in that case. The trial
itself was nothing exciting. The defendant Ricky Newsome was charged with
killing rival drug-gang member Stanley Eakins on the streets of Atlantic
City. Newsome was convicted. But other than local media, other members of
the media likely did not care much - at least not after the 1st day.
"It was a media circus. It seemed like we were under siege by all sorts of
media," Garofolo said Saturday. "Because the electronic media was in the
courtroom we had wires running along the courtroom floor and we had to
worry about tripping over them."
The Supreme Court had just passed its guidelines to allow cameras in the
"The other thing I recall most is the media frenzy occurred on the first
day and the 2nd day. The second day there wasn't the same attention. It
was a dramatic change. Most of the members of the media did not come back
for another day. We kind of new they were there because they could be, not
for what was going on."
But it would be years before the Marshall case created a frenzy such as
the first day of Newsome's trial.
Joel Mayer, an assistant Atlantic County Prosecutor prior to becoming a
defense attorney in 2001, knows the effects of high-profile cases from
both sides. While cameras are not allowed in federal courts, jurors on
those cases are people that watch courtroom dramas, so the absence of the
cameras means very little, Mayer said.
"From the prosecutor's position the explosion of media coverage together
with the dramatic crime shows like 'CSI' change the way jurors see
criminal investigations," Mayer said.
What court dramas and televised trials do is make it harder for lawyers to
keep the jurors' interest without really feeling the need to spice things
up, he said.
"You have to almost present to jurors a case which is as interesting to
them as it might be if they are watching it on television," he said. "It
is truly very troubling from both sides."
Mayer said, as a prosecutor, he would be very concerned about jurors
having unrealistic expectations of evidence generated by "CSI" shows
portrayed as real life.
"Most is true but it does not come together as dramatically or in the five
minutes as it does on T.V.," he said.
In a recent case, he actually had the judge ask prospective jurors during
jury selection if they watch fictionalized criminal law dramas.
"You have to know where the juror is coming from," Mayer said.
It has been nearly 20 years since Marshall was sentenced to death. In
April 2004 a federal judge ruled that he should get a new penalty phase
because his lawyer did not provide effective counsel during the
death-penalty phase. The prosecution is appealing the decision. And many
say they cannot even fathom the thought of another phase or how it would
be covered since most of the players are long gone.
(source: Press of Atlantic City)
Let's finish off death penalty
Optimists should be heartened by last week's U.S. Supreme Court ruling
outlawing capital punishment for juveniles, which noted this country's
"evolving sense of decency" on the issue of executing minors. That's good
news. But an "evolving sense of decency" means that the death penalty
itself, relic of a more bestial, less enlightened past, no longer has a
place here or anywhere else.
The court, by a single vote, decided a case challenging the
constitutionality of executing people who committed their crimes at 16 or
17. The majority recognized that on this issue, America has been both
isolated and hypocritical compared with other nations. "It is fair to say
that the United States now stands alone in a world that has turned its
face against the juvenile death penalty," Justice Anthony Kennedy wrote
for the majority.
According to Citizens United for Alternatives to the Death Penalty, 226
juveniles have been sentenced to death since 1976. Last week's ruling
spared 72 remaining on death row, and forced prosecutors to rethink
pending cases, including those against Lee Malvo, who as a teen joined
John Muhammad in a shooting spree. Muhammad was sentenced to die, but
Malvo got life in Virginia; Louisiana and Alabama prosecutors were
weighing capital charges against him.
The issue, though, isn't whether to execute or free Malvo, or the man
whose case the high court decided, Christopher Simmons, who at 17 killed a
woman in Missouri. Long terms, even with no parole, are fine with me in
the most heinous cases.
For those methodically working against the death penalty and for more
reasonable solutions, it's "Where do we go from here?" A few years ago the
Supreme Court banned executions of the mentally retarded. What about the
mentally ill? Some 10% of those on U.S. Death Rows suffer from severe
mental illness, and up to a dozen are executed each year, says David
Elliott, of the National Coalition to Abolish the Death Penalty.
There is also a need to revisit the issue of racial disparities in the
meting out of death sentences, and to address the competency of lawyers
for many defendants who end up on death row.
The main path to abolition of the death penalty, however, runs through the
statehouses. As "favorable as this ruling was, the center of gravity has
shifted from the Supreme Court to the state legislatures," Elliott says.
New York and Kansas are debating whether to reinstate the death penalty.
New Mexico recently abolished it. New Jersey is expected to declare a
moratorium. Anti-death penalty strategists want to be able to return to
the Supreme Court and say: Look, most states are not executing people
anymore; isn't it time to formally ban the practice?
I am optimistic that in my lifetime, the day will arrive when that
"evolving sense of decency" means complete elimination of capital
(source: Opinion, E.R. Skipp, New York Daily News)
America's pendulum last week swung a little further away from victims and
toward criminals when the Supreme Court, in a 5-4 decision, declared the
death penalty off-limits for killers below the age of 18.
On the surface, the ruling seems "compassionate." And, in truth, it
affects but a few: There are but 70 or so "juvenile" killers on death row.
Nonetheless, the decision (regardless of what you think of the death
penalty) is troubling - mostly because it seems to confirm a trend toward
greater leniency toward criminals.
The decision also relies heavily on international opinion, rather than the
words of the Constitution or domestic legislative or electoral actions.
And it seems to overstep the rights of states to decide punishments.
But most significantly, the recent spate of high-court curbs on the death
penalty can't be separated from what appears to be a broader retreat from
the strong anti-crime message of the early '90s. That message preceded a
precipitous drop in crime.
Here in New York, in 1994, a then-unknown state senator vowing to
reinstate capital punishment ousted a 3-term Democratic governor who
opposed it. Gov. Pataki, lawmakers in Albany and then-Mayor Rudy Giuliani
introduced effective new crime-fighting laws and policies.
Alas, times are a-changing.
* Last year, the New York Court of Appeals ruled that the state's death
penalty violated the state constitution.
* After 3 decades, the state's so-called "draconian" Rockefeller-era drug
laws were relaxed, opening jail doors.
* Earlier this year, the Supreme Court reaffirmed that
mandatory-sentencing guidelines are unconstitutional.
* In 2002, the court held that the mentally retarded couldn't be executed.
What's going on?
It may be that the very success of those tough anti-crime measures
fostered a sense of security, clouding memories and making such measures
seem no longer necessary.
Because people forget how bad things once were, "compassion" for thugs is
increasingly crowding out the hard-headed policies that ended the Dodge
The good news is that the pendulum, inevitably, will one day swing back
toward a less crime-tolerant status quo.
The bad news is that many possibly avoidable crimes will have taken their
toll in the meantime.
(source: Editorial, New York Post)
Whose Constitution Is It Anyway?----The execution of minors shouldn't ride
on the justices' personal whims.
The problem with the U.S. Supreme Court's decision last week banning the
execution of minors is that it was based, when you get right down to it,
only on the personal beliefs of 5 justices and buttressed by the opinions
of people who live in other countries.
That's no way for the court to decide. Supreme Court rulings must be based
on the Constitution, not on what the justices believe or on the vagaries
of "world opinion."
The court's decision fans the flames of a long-standing dispute over how
the Constitution is to be viewed. Should it be treated as an enacted law -
that is, something to be fairly interpreted and evenhandedly applied - or
is it an open-ended document for the court to interpret as it sees fit?
The 1at methodology is democratic self-government; the 2nd - in which an
elite body is invited to impose binding pronouncements about how the rest
of us are to live - is something else.
We all have keenly felt personal opinions. As a Catholic, for instance, I
accept the teaching of the church that capital punishment ought to be
rarely, if ever, employed. But although religion, philosophy and the
positions taken by the United Nations General Assembly should all be part
of the public debate in our legislative assemblies, they cannot simply be
asserted as constitutional law.
A jurisprudence that was truly faithful to the Constitution would begin by
inquiring whether a particular punishment was considered cruel and unusual
in 1789, when the 8th Amendment was added by popular ratification. Based
on a consideration of the practices of the time, as well as the commentary
of such legal luminaries as Sir Matthew Hale and Sir William Blackstone,
the court would have to conclude that juvenile execution was not off
limits except possibly for extremely young children beneath the age of
But the court did not trouble itself with original meaning. That's because
in the late 1950s, when the court was led by former California Gov. Earl
Warren, the justices threw out the original understanding that the
Constitution has a textual meaning in favor of the idea that the document
can be reinterpreted according to the "national consensus." Presumably,
this keeps the Constitution up to date so that we're not all living under
anachronistic 18th century laws.
But the framers never intended the country to be bound by antiquated
thinking; they just thought that the best way to keep things up to date
was for the people themselves to do it by passing laws and, occasionally,
amending the Constitution. It was not up to judges to change
What's more, the court is not very persuasive on the question of what the
"national consensus" really is on the juvenile death penalty - or if there
really is a consensus at all. In fact, the issue is a controversial one,
which suggests why, of the states that permit capital punishment, only
about 47% prohibit execution for offenders under 18.
How does 47% express a national consensus? The same way numbers can always
be manipulated. Mix in 12 states that prohibit capital punishment
altogether, and voila, national consensus.
Only one problem: All of those dozen states allow (and some even require)
juveniles over 14 to be tried as adults, thereby undercutting the argument
that the states as a body have reached a consensus on the "culpability" of
the young or on whether they lack the capacity for considered judgment.
In the case at hand, Christopher Simmons brutally tied up his victim and
pushed her from a bridge to drown, and he smugly bragged that he could
"get away with it" because he was a minor. The notion that he did not
grasp the gravity of his crime is ridiculous.
The court relied on two other authorities in reaching its decision: social
science and world opinion.
The 1st is not definitive. As Justices Antonin Scalia and Sandra Day
O'Connor pointed out in their dissents, the court's studies can be easily
refuted by other studies, because no study holds that all juveniles under
18 are unable to take moral responsibility. That's why we ask juries to do
individualized assessment - so that the punishment will fit the crime and
The 2nd - world opinion - is inappropriate in this case. The notion that
American law ought to conform to international law is a benign, even
alluring, premise. After all, the framers appealed to universal principles
in establishing the United States as a nation. But as sound and important
as that universality can be up to a point, the fact is that American law
is not the same as world law, and we wouldn't want it to be.
There are, for example, some distinctly American rights to which the world
community as a whole does not subscribe, but which we would not want to
give up: the right to a jury trial, the process of grand jury indictment,
and the suppression of illegally seized evidence, to mention just three.
Britain rarely excludes evidence found during an illegal search. Does that
mean we shouldn't either? Of course not.
It may well be time for the juvenile death penalty to be set aside,
because it was long ago that we declared an "inalienable" right to life.
But to be done constitutionally, it must be accomplished "by the people,"
not by 5 Supreme Court justices by assertion.
(source: Commentary, Douglas W. Kmiec, who is a professor of
constitutional law at Pepperdine University; Los Angeles Times)
Taking a Road Less Traveled in the High Court ---- Justice Kennedy, chosen
as a conservative, has made decisions that echo the liberal Warren era.
When Tony Kennedy was a child in Sacramento, a frequent guest at his
family's home was the popular Republican governor, Earl Warren.
Kennedy's father, Bud, was a prominent lobbyist and an admirer of the
governor. He "always used to tell me what a principled man Earl Warren
was," Kennedy recalled in an interview.
By the time young Kennedy was a college student at Stanford in the late
1950s, his family friend - now Chief Justice Earl Warren - had won legions
of admirers across the nation as the liberal leader of the Supreme Court.
Nearly 2 decades after Warren stepped down, another popular California
governor was in the White House. When President Reagan named Anthony M.
Kennedy to the Supreme Court, he did so with hopes of reversing the
liberal legacy of the Warren Court.
But these days, there are as many echoes of Earl Warren as of Ronald
Reagan in the opinions of Justice Kennedy.
It was the principles framed by Warren that showed in Kennedy's majority
opinion last week as the court ruled 5 to 4 to abolish the death penalty
Warren, who led the Supreme Court from 1953 to 1969, saw the Constitution
not as a set of 18th century legal rules, but as a guarantee of fairness
and decency for all Americans.
When confronted with state-imposed racial segregation in the schools of
South, Warren did not look to history to discern the view of the
Constitution's authors. Instead, he looked at the reality of 20th century
"We conclude that in the field of public education, the doctrine of
'separate but equal' has no place. Separate educational facilities are
inherently unequal," Warren wrote in his 1st major opinion, the landmark
Brown vs. Board of Education ruling.
When called upon to decide what is "cruel and unusual punishment," Warren
said the court must not be bound by the past, but instead should look to
"the evolving standards of decency that mark the progress of a maturing
Warren's admirers saw his court as a voice for idealism and an inspiration
for the civil rights movement. To its critics, the Warren Court
represented judicial imperialism. Across the South, "Impeach Earl Warren"
signs went up along the roadsides.
The critics were not limited to the South.
They included the governor of California - who complained that unelected,
activist judges were becoming a threat to democracy. Judges, said Reagan,
were making the law in areas such as abortion, school prayer and the death
As president, Reagan promised to appoint conservatives who shunned the
style of judicial activism represented by the Warren Court. And in 1987,
when the Senate rejected his choice of Judge Robert Bork for the Supreme
Court, Reagan turned to an old friend from his Sacramento days, Anthony
Thanks to a push from then-Gov. Reagan, Kennedy had been named as a U.S.
appeals court judge in 1975, when he was 38. He went on to compile a
record as a moderate conservative. In the wake of the Bork battle, Kennedy
was just enough of an enigma to win an easy, unanimous confirmation from a
Eighteen years later, when confronting the issue of whether teenage
murderers can be put to death, Kennedy said the court must look "to the
evolving standards of decency that mark the progress of a maturing
society," quoting Warren's words. "We must determine, in the exercise of
our own independent judgment, whether the death penalty is a
disproportionate punishment for juveniles" today, he added.
The Constitution has "come to earn the high respect and even the
veneration of the American people," Kennedy concluded, because of its
living principles. "By protecting even those convicted of heinous crimes,
the 8th Amendment [and its ban on 'cruel and unusual punishments']
reaffirms the duty of the government to respect the dignity of all
It would be hard to imagine Chief Justice William H. Rehnquist or Justice
Antonin Scalia writing such words - or agreeing with them. They say the
Constitution must be grounded in history and interpreted narrowly.
"What a mockery!" Scalia said in his dissent to Kennedy's opinion in the
juvenile death penalty case. Rather than look to "the original meaning of
the 8th Amendment," Kennedy was "looking into the mirror" to find the
meaning of the Constitution, Scalia said.
This dispute is not new or likely to go away soon. Repeatedly, the Supreme
Court has split between justices who look to the past and those who look
to the present when deciding major controversies in constitutional law,
including on abortion, religion, gay rights and the death penalty.
While Scalia and Rehnquist say the court must interpret the law as it was,
Kennedy says the court must look to today's world to decide issues
involving liberty, equality and such amorphous terms as "cruel and unusual
punishment." As a result, Kennedy - Reagan's third and final appointee
-often finds himself speaking for the court in announcing its most
significant liberal decisions.
In 1996, Kennedy wrote the court's 1st opinion that struck down a law
because it denied gays and lesbians the equal protection of the laws. "A
state cannot deem a class of persons a stranger to its laws," he wrote.
No one thought the original Constitution would have outlawed
discrimination against homosexuals, but equal rights today must include
gays and lesbians, Kennedy said.
2 years ago, he spoke for the court again in throwing out a Texas law that
allowed police to arrest gays and lesbians for having sex at home.
In a broadly written opinion, Kennedy said gays "are entitled to respect
for their private life. The state cannot demean their existence" by
deeming them as a class of criminals, he said.
To some of his friends, it was a bit jarring to see Kennedy, a
strait-laced family man and devout Catholic, emerge as a hero of the
gay-rights movement. But Kennedy said his duty to the Constitution
demanded just such a result.
As if to counter Scalia, he closed his opinion in the gay-rights case by
saying the framers of the Constitution would have welcomed such a ruling.
"They knew times can blind us to certain truths, and later generations can
see that laws once thought necessary and proper in fact serve only to
oppress," Kennedy said. "As the Constitution endures, persons in every
generation can invoke its principles in their search for greater freedom."
Kennedy, 68, has three grown children and says he is well-settled into the
job that has no retirement age. In conversation, he speaks with enthusiasm
about architecture, literature and the theater.
In Sacramento, he had taught evening classes at the University of the
Pacific's McGeorge School of Law, and since joining the high court, he has
taught McGeorge's summer law classes in Salzburg, Austria. Not
surprisingly, he has become a student of European and international law.
In last week's death penalty opinion, Kennedy noted that the United States
"stood alone in the world" in permitting the execution of juveniles, a
comment that drew a harsh rebuke from Scalia. The views of "like-minded
foreigners" should play no role in the court's opinions, he said.
The split between Scalia and Kennedy goes back more than a decade. At
first, they seemed to have much in common. They were born in 1936, grew up
in Catholic families, went to high school in the '50s and then to Harvard
Law School. Both were Republicans and were put on the courts by Reagan.
When Kennedy moved to the Washington area in 1988, he and his wife, Mary,
bought a house in the same McLean, Va., neighborhood as Scalia.
But their friendship fractured in the spring of 1992, when the court took
on two highly controversial cases. When it looked as if Rehnquist had a
majority to overturn bans on school prayers and the Roe vs. Wade ruling
that legalized abortion, Kennedy broke ranks. He joined a 5-justice
majority all of whom were Republican appointees - to preserve the
abortion right and the ban on school-sponsored prayers. Ever since,
Scalia's most vehement dissents are usually pointed directly at Kennedy.
For example, after Kennedy spoke about the Constitution guaranteeing
respect and dignity for gays - although not a right to marry - Scalia
accused him of having "signed onto the so-called homosexual agenda."
"Since the Constitution of the United States says nothing about this
subject - this court has no business imposing upon all Americans the
resolution favored by the elite," Scalia said in a dissent joined by
Rehnquist and Justice Clarence Thomas.
The sharp words aside, Kennedy is no liberal, and he usually joins with
the court's conservative bloc in criminal cases, including supporting the
death penalty. But two years ago, he joined with the liberals to end
executions of mentally retarded defendants, prompting another sharp
dissent from Scalia.
As with Warren, Kennedy's broad reading of the Constitution has won him
admirers and enemies.
Yale Law professor Akhil Amar said Kennedy's opinions set out a grand
vision that was similar in style to Warren's. "There is a kind of sunny,
optimistic vision and Western-style progressivism that reminds one of
Warren," he said. "You could call him a Big Tent Republican. In the gay
rights opinion, there is a real sense of humanity and sensitivity for
people who have been stigmatized."
But Kennedy's willingness to make social policy troubles many
conservatives. Last week, the Wall Street Journal's editorial page said
Kennedy's opinion in the juvenile death case "symbolizes the current
Supreme Court's burst of liberal social activism. From gay rights to
racial preferences and now to the death penalty, a narrow majority of
justices has been imposing its own blue state cultural mores on the rest
of the nation."
There is no doubt the recent death penalty rulings have their greatest
effect in the red states of the South.
Among the 72 teenage killers who were taken off death row by the decision,
all but a handful were in Texas, Alabama, Mississippi, Louisiana and North
Carolina. Only 3 states - Texas, Oklahoma and Virginia - had carried out
executions of juvenile murderers in the past decade.
Lawyers and former clerks refuse to be quoted speaking critically about
Kennedy or other sitting justices, but many conservatives are dismayed by
"Conservatives are angry and view him as a disappointment," said one
former clerk. "He is a generally sound, careful, thoughtful judge. But he
is also a judicial imperialist. He has a deep faith in the judiciary's
ability to solve our society's problems, and that runs counter to
traditional conservative principles."
Activists on the right and the left also see in Kennedy's saga a lesson
for the year ahead.
He is a member of the Supreme Court only because the Senate defeated Bork,
Reagan's 1st choice. As one activist said in response to last week's 5-4
ruling, it showed the importance of having the "right judges" on the high
(source: Los Angeles Times)
Justice Hugo Black once observed that the "whole country has traveled far
from the period in which the death penalty was an automatic and
commonplace result of convictions -- even for offenses today deemed
trivial." The Supreme Court's decision prohibiting execution of juveniles
is another affirmation of the country's journey away from barbarism.
It is regrettable that Justice Antonin Scalia has not taken that same
journey. As pointed out by Justice John Paul Stevens, under Scalia's logic
he would find no impediment to the execution of children as young as 7
3 years ago, Scalia expressed the view that any Catholic judge who opposed
capital punishment should resign. These views are not mainstream. If
President Bush attempts to appoint Scalia as chief justice, I hope the
Senate will have enough courage to reject him.
Robert J. Hennessey, St. Mary's Point.
(source: Letter to the Editor, Minneapolis Star Tribune)
American Rhythms | A much-needed time-out on the death penalty
Ever since 1608, when Capt. George Kendall of the Jamestown colony of
Virginia became the first person in U.S. history to be executed, Americans
have debated the wisdom, fairness and morality of capital punishment.
When citizens felt threatened by war or social unrest, the death penalty
became more acceptable, a way to restore social order, an antidote to
fear. Reeling from Depression at home and uncertainty abroad, the nation
executed more people in the 1930s than in any other decade before or
At other times, national sentiment clearly swung toward strictly limiting
That sentiment is building again, giving us a chance to consider a middle
ground - a moratorium to assess whether the death penalty is fair,
warranted and just.
The notion of such a time-out received a boost last week from the U.S.
Supreme Court's dramatic decision to abolish the death penalty for crimes
committed by juveniles. Following the 2002 ruling that executing the
mentally retarded was unconstitutional, the court has imposed another
limit on this most final punishment.
But observers don't expect this court to go much further. Congress, too,
is unlikely to do more than it did last year, in passing a law to
encourage the use of DNA technology in assessing guilt or innocence.
Action can and should come in states where the death penalty remains on
the books. Some of those 36 are working toward abolishing it altogether:
The New Mexico House voted to do just that last month, while a legislative
committee in Connecticut is also pondering such a move.
It's questionable how far abolition will go, as a majority of Americans -
a shrinking majority - favor capital punishment.
That's why the most promising development is the accelerating call for a
moratorium, which even public officials, faith leaders, and advocacy
groups who do not favor abolition can and do support. You know this idea
has traction when lawmakers in a Southern "red" state such as North
Carolina are expected to approve a moratorium this year.
No doubt the cause was aided by the story of a man freed last year after 4
years on North Carolina's death row. The North Carolina Coalition for a
Moratorium contends that one innocent person has been removed from death
row for every six people executed in the state.
Concern that the innocent might be executed by the state is fueling the
"If capital punishment is the final, ultimate determination, we need a
high degree of confidence that we are getting it right. And there's lots
of evidence that we're not," says Davison Douglas, a constitutional law
scholar at the College of William and Mary in Williamsburg, Va.
That is why an organization such as the American Bar Association, which
does not support abolition, is pushing hard for a suspension of
"As lawyers, we have a responsibility to protect the accuracy and fairness
of the system," says Deborah T. Fleischaker, director of the bar
association's Death Penalty Moratorium Implementation Project.
Even some religious leaders who believe that the death penalty is condoned
in sacred texts are joining the chorus of concern about the way it is
implemented. Several years ago, one such group, the Union of Orthodox
Jewish Congregations, called for a moratorium until a "comprehensive
review" is undertaken.
A moratorium does not automatically develop into abolition. It would,
however, offer the opposing sides of this passionate debate the
opportunity to examine the facts and ask the core questions: In a modern
society, is justice best served with this irreversible punishment? Is it
fair to victims and their families, to the accused, to the judicial system
as a whole?
The death penalty is both a legal and a moral issue, and surveys show that
many Americans say their faith influences their opinion on this matter. A
moratorium should spur a discussion within and among faith communities,
many of whom have been far more vocal about abortion and gay marriage than
about capital punishment - despite what their faiths actually teach.
There was a time on these shores when one could be put to death for
stealing fruit or killing a chicken. There is nothing immutable about the
death penalty. It can and should be revisited.
(source: Column, Jane Eisner, The Philadelphia Inquirer)
Justices took high road in juvenile death penalty case
For Harris County District Attorney Chuck Rosenthal, the U.S. Supreme
Court's latest decision to restrict the death penalty seemed to boil down
to a case of misplaced morality.
If anyone misplaced it, however, it certainly wasn't the high court's
Not surprisingly, Rosenthal, whose office steadily feeds death row, said
he was "disappointed" at the 5-4 ruling to ban the execution of capital
murderers who killed when they were younger than 18.
"What this comes down to is 5 Supreme Court justices who are not
accountable to anyone believe that their moral judgment is superior to the
Texas Legislature's," he said.
Believe me, people much humbler than Supreme Court justices are absolutely
convinced their own moral judgments are superior to those of Texas
lawmakers on any number of issues, and many of those people are absolutely
correct. Keep in mind we are talking about legislators deep in hock to an
array of influence-peddlers who measure morality mostly in dollar signs.
Want to 2nd-guess the Texas Legislature? Get in line.
The Supreme Court's second-guessing, however, actually counts, and the
fact that its members are not accountable to anyone - except their own
consciences - is an important constitutional safeguard that often is
criticized but should be applauded.
Supreme Court justices are crucial to the separation of powers principle
on which our country operates. It is important that the ultimate arbiters
of federal constitutional disputes have the opportunity - thanks to
lifetime appointments - to answer only to themselves, not to political
contributors, special interest groups, unhappy prosecutors or even the
presidents who appointed them.
The key word here is "opportunity." Justices aren't always above political
considerations, and the appointment process for the federal judiciary -
because of the high stakes involved for many competing interests - is rife
As has everyone, I have disagreed with a number of Supreme Court decisions
and likely will again. To voice such a disagreement is, as Rosenthal would
remind me, an American right of free speech, as well as a time-honored
However, I think the court made the right ruling in prohibiting the
execution of juvenile killers. If its constitutional decision was based on
moral convictions, so be it.
On this important issue, as the court pointed out, Texas law and practice
were clearly out of touch with most of the civilized world. Most states
already didn't allow the practice. Neither did most other countries,
except for a handful of mostly totalitarian regimes.
Rosenthal, who has been known to wear a bracelet with the letters, WWJD
(What would Jesus do?), would have us believe that the moral high ground
belongs to supporters of the death penalty.
But I am not convinced.
Don't remind me of biblical admonitions about an "eye for an eye" without
also looking up all those passages about forgiveness.
No, the families of murder victims don't have to forgive the youthful
killers. But the state shouldn't execute them either. The state should
just lock them away for a long, long time, which the state will.
Only a few years ago, some readers may recall, Rosenthal didn't harbor as
high an opinion of the Legislature's "moral" judgment. That was in 2001,
when lawmakers passed a bill to prohibit the execution of capital
murderers who were mentally retarded.
What did Rosenthal do?
He, of course, joined other prosecutors in asking Gov. Rick Perry to veto
the bill, which Perry did.
Later, however, the U.S. Supreme Court intervened to ban the execution of
the mentally retarded in Texas and all other states, executing a
constitutional - and moral - judgment akin to its most recent ruling.
(source: Editorial, Houston Chronicle)
The Issue: Supreme Court raises age for death penalty. Our View: It's good
that the scope of executions in America is narrowing.
At a time when many people in Evansville were anticipating the execution
of murderer Donald Ray Wallace Jr., the U.S. Supreme Court was handing
down a decision that further narrows the use of the death penalty in
America. In a welcome decision, the court held on Tuesday that it is
unconstitutional to execute people for crimes they committed when younger
than age 18.
There is no direct relationship between the two events. Wallace was a
young adult when he brutally murdered four members of the Patrick Gilligan
family in their North Side home in 1980. It is a crime for which he will
be given a lethal injection shortly after midnight on Thursday in the
death chamber of the Indiana State Prison in Michigan City.
However, Wallace's impending execution has heightened our awareness of
capital punishment and its role in exacting criminal justice in America.
In that context, it may be instructive to take note of what the Supreme
Court decided this past week, and the direction the court and the states
First, in 1988 the Supreme Court banned the execution of anyone for a
crime he committed while younger than age 16, but a year later, the court
upheld executions for 16- and 17-year-olds convicted of capital crimes.
Now, the bar has been raised to 18. Also in 2002 the court put a stop to
executing persons with mental retardation.
In Tuesday's 5-4 decision, the court ruled that executions for crimes
committed by juveniles younger than 18 are a violation of the ban on cruel
and unusual punishment. The court cited a lack of maturity, an undeveloped
sense of responsibility, a susceptibility to peer pressure and less fully
formed character in removing death as a possible sentence for their
The court has come under some criticism for this decision by those who say
the justices were reacting more on what they see as an emerging "national
consensus" about capital punishment than on interpreting the Constitution.
In fact, of the 38 states that have the death penalty, 18 already prohibit
the execution for juvenile capital offenses, while 20 allow it. Of course,
12 other states have banned capital punishment entirely.
Indiana is among those states that no longer allow juvenile executions. In
2002, the Indiana Legislature raised the age to 18. Kentucky and Illinois
are among the states that will be affected by the decision in that they
still allow executions in juvenile-committed capital crimes.
This all occurs at a time when capital punishment is increasingly coming
In some cases, death row inmates have been found to be innocent after
years of waiting to die. The length of stay on death row - Wallace
committed his crime 25 years ago - and the costs, both to taxpayers in
prosecuting capital cases, and to survivors of victims, in pain and
dissatisfaction, all combine to question the continued use of capital
punishment. Indeed, with the sentence of life-without-parole now
available, some prosecutors are less likely today to seek death.
>From our view, it is a hopeful sign that the Supreme Court, as well as a
number of states, are continuing to hold capital punishment under close
scrutiny. This past week's decision is but the latest example.
(source: Editorial, Courier & Press)
Framers intended 'evolving standards' approach to Constitution
The Supreme Court's decision outlawing the death penalty for anyone under
18 has infuriated opponents of judicial activism. Perhaps the most
prominent critic is Justice Antonin Scalia, who charged that in overruling
the elected lawmakers of various states, the court "proclaims itself the
sole arbiter of our nation's moral standards.'
In this view, the justices must choose between respecting the words of the
Constitution and following their own personal views. But Scalia and other
opponents of "judicial activism' ignore something very important: The
words of the framers were often empty vessels destined to be filled by the
courts. They are so unspecific and open-ended as to leave judges no choice
but to ... well, use their judgment.
In this case, a majority of the court ruled that the execution of someone
who was 17 at the time of the crime violates the Eighth Amendment, which
prohibits "cruel and unusual punishments.' It reached this conclusion just
16 years after deciding that the execution of a 17-year-old did not
violate the Eighth Amendment.
What changed was not the Eighth Amendment, which reads exactly as it did
then. What changed, in the court's opinion, were the "evolving standards
of decency that mark the progress of a maturing society.' Today, it sees
there is a new national consensus against such executions. "A majority of
states have rejected the imposition of the death penalty on juveniles
under 18,' said the court.
Scalia, however, says that's the wrong barometer, because it includes
states that don't allow the death penalty for anyone. Of the states that
utilize capital punishment, most do allow it for 17-year-olds. The number
of minors sentenced to death has, Scalia notes, "either held steady or
slightly increased' since 1989 proof that there is no groundswell of moral
But the real flaw in the reasoning of both sides is the whole idea of
deferring to public opinion. If there were a true consensus against
executing kids, we wouldn't need the justices to ban the practice our
democratically elected legislatures would eventually get around to banning
it. It's only when there is not a national consensus that the court has a
reason to step in.
The Bill of Rights, after all, is expressly intended to prevent the
majority from having its way. So it wouldn't have made sense for the
framers to forbid only those forms of cruel and unusual punishments that
the majority rejects. The sole point is to forbid those barbarities that
the public would otherwise adopt.
The death penalty, which is inherently inhumane, is even more so when used
on people who have not lived long enough to acquire the rights we confer
on adults. If 17-year-olds are not responsible enough to make their own
decisions about voting, joining the military or taking out loans, how can
we treat them as indistinguishable from adults when they commit crimes?
Scalia says some 17-year-olds are mature enough to be held accountable,
and that juries are capable of deciding which ones. But that argument
proves too much. By his logic, why not let juries sentence 15-year-olds to
death? Or 13-year-olds? You have to draw the line somewhere, and it makes
eminent sense to draw it at the same place it's drawn for the privileges
Some conservatives think this "evolving standards' approach is a lot of
hooey. In their view, the Constitution should be read only to ban
punishments that the framers saw as cruel. But if the courts interpreted
the amendment that way, we would still be allowing mutilation and maiming
of criminals. The Fifth Amendment, after all, says defendants may not be
put "in jeopardy of life or limb' twice for the same offense which
suggests that they can be put in jeopardy of life or limb once.
For that matter, a strict originalist interpretation would mean children
as young as 7 could be eligible for a lethal injection. Douglas Abrams, a
professor of juvenile law at the University of Missouri-Columbia, says
that in the era of the founders, there were cases of 10-year-old criminals
If the framers wanted to establish a cutoff age for the death penalty, or
if they wanted to outlaw only certain specific punishments, they could
have done so. Instead, they chose broad generalities that they knew were
bound to change in meaning with the passage of time, and which the courts
would have to define.
When Scalia laments the spectacle of constitutional terms being
"determined by the subjective views of five members of this court,' he
shouldn't blame his colleagues. They're only doing what the framers
obligated them to do.
(source: Column, Steve Chapman, Chicago Tribune)
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