Capital punishment poses certain insurmountable barriers. The first among these is the fact that there are no mulligans (a) for executing the innocent or (b) executing people denied a fair trial for lack of competent legal representation or other equally justifiable matters. Among these last one one might include “improper jury instruction”. That’s what California’s famous or infamous Ninth Circuit did in Belmontes. Here is how George Will tells it:
>Reinhardt, writing for the 9th’s divided three-judge panel, overturned Belmontes’s death sentence because the trial judge “failed to instruct the jury that it was required to consider” what Reinhardt considered Belmontes’s “principal mitigation evidence” — his aptitude for prison life. On Monday the Supreme Court ruled 5 to 4 against the 9th.
That’s a fairly straightforward question of statute interpretation. But judicial restraint and literalism has its limits:
>Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, argued that there was a reasonable probability that the jury weighed Belmontes’s “future potential.” Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented, arguing that because the trial judge never explicitly told the jury that it must consider Belmontes’s capacity to live satisfactorily in prison, there is a “reasonable likelihood” that the jury did not.
And it appears that in this particular case those limits are the ability of the five conservative justices of the SCOTUS divining the contents of a jury’s mind rather than strictly applying the law, as the minority justices and the Ninth Circuit argued. The article lampoons the Ninth and the minority justices on grounds usually reserved (by Will) for praising the majority.
Will’s entire case rests on this highlighted portion of the following:
>Belmontes’s attorney asked the trial judge to specifically instruct the jury to consider Belmontes’s ability to live acceptably in prison. Instead, the judge used California’s “catchall mitigation instruction,” which was declared constitutional in 1990. It tells a jury weighing capital punishment that it can consider many things (e.g., the use of force or violence, the defendant’s age, any extreme mental or emotional disturbance, prior felony convictions). Belmontes’s case turned on whether the jury understood one provision of the catchall instruction — to consider “[a]ny other circumstance which extenuates the gravity of the crime” — to include the “forward-looking” consideration that life imprisonment might be a suitable punishment.
While that may be relevant, it does not appear (from Will’s piece) that the 1990 ruling is retroactive. If it is, perhaps he ought to explain how it applies or should apply to a case that probably happened earlier. While doing that, he can also explain whether that ruling encompasses all previous rulings on jury instruction (such as the one used in the Ninth Circuit’s decision). These things we are not told.
But here’s the kicker. The difficulty of quickly or fairly implementing the death penalty ought to cause one to re-evaluate whether or not we ought to try.
>There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries’ deliberations and denies society the implementation of a punishment it has endorsed.
Yes. There is something grotesque about legal rights. But until we abandon the Constitution and its myriad protections, we’re stuck with the current system.