Of Course, It's More Complicated Than That

Judge Kopf began with Digby.  Digby'd staked out the remarkably stupid position that since Nino didn't think the Constitution prohibited the execution of the factually innocent, and didn't think that it was immoral to hold that position, he therefore thought it was just fine that they should be killed.  As the tagline to her piece says,

He doesn't think executing an innocent man matters.

Of course, he never said any such thing.  He has said that the likelihood of it is vanishingly small (the phrasing is mine, not his).  And he has acknowledged that, at least as a theoretical matter it's at least a possibility if we have a death penalty, which he thinks we should have.  But that he thinks it's OK? No, he's never said that.  And it doesn't follow.

Nor, when explaining that lethal injection is a kinder death than Sabrina Buie suffered at the hands of Henry Lee McCollum and Leon Brown and that their execution would not, therefore, offend his sensibility, did he add, as Digby seems to think he meant, that he favored their execution even though they were innocent which would be revealed with their exoneration 20 years in the future.

So Judge Kopf rightly took Digby to task. 

But because he's a thoughtful guy, the Judge wrote another post exploring his own views about judging and about factual innocence.  

Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.

There followed, of course, those paragraphs.  Which carried within them, as does the introduction to them I just quoted, their own caveats and qualifiers, but at bottom said that there are circumstances under which he, as a judge, would not act to prevent the execution of a person he "knew" was factually innocent.  The law, he said.  Justice, he said, making clear that justice was different from morality.   Mine were among the so-far 95 comments.  Then I did a blog post.  In my typical discursive and round-about way, I talked about guilt and innocence and democracy and juries and Watergate and . . . . Hell, read it yourself it you're so inclined.  Or don't.

This morning, Scott Greenfield weighed in with a pair of posts:  If There Was No Other Way, Part 1 and If There Was No Other Way, Part 2.  Part 1 was an attempt to explain Judge Kopf's position. Part 2 was a response.  Pared of its explanatory framework, Scott's basic point is that whatever we might like to believe, our systems are far too fucked up to allow any executions - let alone the execution of the innocent.

We work in terrible trenches, even if the stench is removed with the perfume of an appellate decision. Nothing we do happens well enough to satisfy due process, law or the thoughtful concerns of a knowledgeable electorate. The law doesn’t happen well enough to make it just to execute anyone, no less a person known to be innocent.
All of us who labor in the trenches are unworthy of that level of respect, that the product of our labors is sufficiently sound that it justifies the taking of a human life. To believe otherwise is unbounded hubris. We may do so by relying on the platitudes of the law, but we are only fooling ourselves. There is nothing we do so well in the name of justice that the killing of an innocent person can be excused.

Which history is the immediate background to this. There is, though, a longer background.  One that reaches back to 1791 when the 5th and 8th Amendments became part of the Constitution.  First the 5th.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It's clear that the 5th Amendment accepts the prospect of executions. It says that with certain exceptions prosecution for capital crimes requires indictment by a grand jury.  The fact that a procedure for beginning capital prosecutions is set out makes clear that the Constitution in its own terms does not prohibit them.  Moreover, the amendment says that nobody can be "deprived of life . . . without due process of law."  Spin that however you like.  It says that before they can kill you, they have to give you due process.  If they do . . . .

That was Scalia's point.  The Constitution says that there can be no execution without due process. It must be, therefore, that the Constitution allows executions with due process.  Not that it mandates executions.  Not that it says executions are moral or right or even desirable.  Just that as long as there's due process, the Constitution doesn't prohibit them.

But there's also the 8th Amendment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

On its face, that says nothing about the death penalty.  Nothing about executions.  Yet for the last 42 years, since Furman in 1972 when the Supremes said every death penalty law in the country violated the 8th Amendment (even if the death penalty as such did not), it's been 8th Amendment jurisprudence that defines it.  When it's arbitrary, when it's applied to the insane, when it's applied to the intellectually disabled, when it's applied to kids, when it's applied without full individualized consideration, when . . . . Why then it's cruel and unusual.  

But otherwise?  During his confirmation hearings, Stephen Breyer was asked about the death penalty. It is, he said correctly, settled that at least in the abstract it does not violate the 8th Amendment.  And then he went on to something else.

The 5th Amendment?  Meh.

Now, you might argue that killing the factually innocent is cruel and unusual, too.  But we've yet to find 5 Justices at one time who've said that.  Might we?  Today?  If the absolute question was called?

I suspect the answer is yes.  5-4 with Kennedy joining the moderate statists who commentators and the media have come to call liberals.  I also suspect the 9 of them will go through gyrations to avoid ever having to answer that question explicitly.

But there's another way of getting there.  That business of taking life only when there's due process begs the underlying question of all procedural due process cases.  The Court laid it out in Morrissey v. Brewer, a 1972 case involving parole revocation.

Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action."

To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

(Citation omitted, paragraph break added.)

The Court has suggested from time to time, and some think they mean it, that in death penalty cases, precisely because of the "private interest that has been affected by governmental action," the Constitution requires some sort of "super due process."  And if the person is factually innocent? 

Well, can there ever be enough process to justify the execution?

One more time.  I'm unalterably opposed to the death penalty in all circumstances.  It's bad policy, bad politics, unavoidably arbitrary and capricious.  Given the realities of our world, it's necessarily racist and classist.  It doesn't achieve it's purported ends.  And we're not capable of properly choosing its victims nor, it seems, of killing them as we insist we must:  Kindly, gently, lovingly, and in ways that disguise the fact of cold-blooded murder.  It makes us all worse.  And it's immoral.

And yet there it is.  Just waiting for some judge to answer the question of "What process is due" with an honest, 

More than we have available to give.