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The End of the Death Penalty Isn't Near

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter.

The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion.

The constitutional back story is fascinating. It begins with a 1998 decision, Almendarez-Torres v. U.S., in which Scalia wrote a dissent that was joined by three of the court’s four liberals at the time: Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter. Scalia said there was strong reason to believe that the Constitution requires any fact increasing punishment to be decided by a jury. Thomas didn’t join Scalia’s dissent, and neither did the usually liberal Justice Stephen Breyer.

Thomas’s refusal to join wasn’t yet noteworthy. But Breyer’s was. The most probable explanation was that Breyer had helped dream up and then draft the U.S. sentencing guidelines that governed almost all federal sentencing at the time. One central element of the guidelines was that judges would make findings about the degree of harm and nature of the crime which they then applied according to an elaborate grid designed to reduce judicial discretion. Scalia’s dissent hinted that this arrangement might violate the Constitution, upending the sentencing guidelines.

Two years later, in Apprendi v. New Jersey, Scalia took the next step. He joined an opinion by Stevens squarely holding that any fact (except the fact of a prior conviction) that enhanced a sentence beyond the statutory maximum must be found by a jury.

This time, Thomas joined him, reversing his vote from Almendarez-Torres and saying he’d gotten that result wrong. The result was a 5-4 opinion with a bizarre judicial lineup: Scalia and Thomas joined three of the liberals, while Breyer, committed to the sentencing guidelines, joined the court’s conservatives.

The conservatives’ reasoning was historical and originalist. But one issue in particular may have been important to Thomas. The idea, first mentioned in a 1999 opinion that helped pave the way for the Apprendi decision, was that common-law juries had the de facto power to block the implementation of criminal laws that they didn’t like.

The great 18th century English legal thinker William Blackstone called such nullifying verdicts “pious perjury.” The jurors perjured themselves by breaking their oath to find the fact accurately, but they were acting piously because the laws were wrong. In particular, Blackstone had in mind the common-law rule that stealing goods of a certain value constituted a felony punishable by death. Juries fudged the facts to find defendants guilty of misdemeanor, thus mitigating the harshness of the laws while simultaneously expressing their dissatisfaction with them.

Thomas never said so explicitly, but it seems probable that he liked the idea of an empowered jury casting doubt on laws it didn’t like. The sentencing guidelines, perceived as inflicting especially harsh punishments on black defendants, probably seemed like good targets for such jury repudiation. In 2005, Scalia and Thomas provided their votes to strike down the sentencing guidelines on the same grounds.

In any case, Thomas has consistently stuck with the principle ever since, as has Scalia. The Florida sentencing system deviated from it. The reason was that the jury’s findings regarding the death penalty were merely advisory. The ultimate decision was made by the judge. The court said the Apprendi precedent controlled, and found Florida’s system unconstitutional.

In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay -- a decision that requires five justices.

The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.

And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.

The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas -- it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net