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Death Penalty Splits the Court

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 Supreme Court reversed one death penalty sentence Thursday while upholding another. Both decisions were 5-4, and eight of the justices voted consistently in the two cases, either for capital punishment or against it. The swing voter, in the majority both times, was -- you guessed it -- Justice Anthony Kennedy. The result is a continuation of the court’s positively contradictory death jurisprudence -- which reflects, come to think of it, our collective national inconsistency on the topic.

The liberal win, Brumfield v. Cain, involved a defendant’s claim that he had an IQ consistent with low functioning and that there was evidence in the record that suggested intellectual disability sufficient to give him a hearing to see if he was exempt from execution. Justice Sonia Sotomayor’s opinion for the court reads like a throwback to the days of Thurgood Marshall and William Brennan, when five justices could sometimes block the death penalty by invoking a defendant’s disadvantaged state.

First, Sotomayor rejected the notion that an IQ score of 75 proved Brumfield was intellectually capable enough to be executed. The cutoff score is 70, but the standard margin of error includes a score of 75, she pointed out.

Then she turned to the evidence of Brumfield’s childhood. He had a low birth weight, she noted, suggesting that “something had gone wrong” in his mother’s pregnancy. He’d been in special education as a child, and he never read above a fourth-grade level. He’s also been treated with various unspecified antipsychotics and sedatives, she observed.

On this basis, Sotomayor concluded, Brumfield should’ve gotten a hearing as to whether he was intellectually disabled. Now, she didn’t say the defendant actually was intellectually disabled -- just that he deserved a hearing on the question. But her approach signaled that five justices thought he probably shouldn’t be executed -- which might affect proceedings in the lower courts.

Justice Clarence Thomas’s dissent was a highly unusual one. It was normal enough that he rejected the majority’s views and said no hearing was necessary because the lower court’s determinations were reasonable. What was strange was his lengthy excursus on what he called a “study in contrasts” between the defendant and the victim’s son.

Thomas contrasted the defendant’s nearly 20-year effort to say that “his actions were products of circumstances beyond his control” with the laudable efforts of Warrick Dunn, the victim’s son, to care for his siblings while playing football at Florida State and then for the Tampa Bay Buccaneers. While Dunn’s actions no doubt deserve praise, they are legally completely irrelevant. One wonders if Thomas would’ve included them -- or even known of them -- had Dunn not been a professional athlete.

It’s easy to feel Thomas’s deep preference for self-responsibility coming through in the opinion. A self-made man born into extremely modest circumstances, he abhors the idea that anyone would disclaim responsibility for his actions. But to avoid execution, of course Brumfield must disclaim responsibility.

The other case, Davis v. Ayala, arose from the prosecution’s use of peremptory strikes to wholly exclude blacks and Latinos from the jury pool in a murder case. Hector Ayala, the defendant, objected. The prosecution then asked the judge to explain its jury selection strategy without Ayala’s attorney present, so as not to reveal its trial strategy. The judge agreed, then found the exclusions weren’t unlawful. Ayala was eventually convicted of murder and sentenced to death.

During the process of appeal and collateral review, the California Supreme Court held that even if Ayala’s constitutional rights were violated by the judge hearing the prosecution's defense of its peremptory challenges outside his lawyer’s presence, the constitutional error was harmless. The court’s view was that the result would’ve been the same even if Ayala’s lawyer had heard the prosecution’s explanation of its strategy.

The question before the U.S. Supreme Court was whether Ayala could show what the courts call “actual prejudice” to his conviction and sentence from the assumed constitutional violation. For technical reasons arising from the Antiterrorism and Effective Death Penalty Act of 1996, that meant the U.S. Supreme Court would uphold the conviction unless it found the lower court’s decision to be not merely wrong but also unreasonable.

Writing for the majority, Justice Samuel Alito marched through each of the juror challenges and concluded in each case that the California court’s decision was reasonable. In a measured dissent, Sotomayor pointed out that the whole point of the adversarial process is for a party’s lawyers to be able to argue against the approach used by the other side. Excluding Ayala’s lawyer inherently raised questions about whether the procedure that led to his conviction and sentence would’ve been different had the lawyer been included.

The weird sideline to this otherwise normal case came in an exchange between Kennedy and Thomas in their separate concurrences. Although Kennedy provided the deciding vote to allow Ayala’s execution, he wrote a separate four-page concurrence objecting strongly to the fact that Ayala has been held in solitary confinement for most of his 25 years in prison.

Astonishingly, Kennedy ended his concurrence by quoting Dostoyevsky: “The degree of civilization in a society can be judged by entering its prisons.” This was particularly shocking as Kennedy clearly didn’t mind executing Ayala -- that, in his view, is apparently a perfectly legitimate expression of civilization. It would seem that Kennedy, or his law clerks, are unfamiliar with the famous comments by Prince Myshkin in Dostoyevsky’s "The Idiot" condemning the guillotine -- not to mention the fact that Dostoyevsky was himself sentenced to death and reprieved on his way to the firing squad.

Thomas didn’t rebuke Kennedy for his literary Philistinism. But he did write a paragraph redolent of his Brumfield opinion: “The accommodations in which Ayala is housed,” he wrote, “are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest.  And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

Kennedy’s death penalty incongruity perhaps reflects that of our society in general. Thomas, for his part, knows where he stands: in the land of retribution, where the defendant’s punishment can be compared to the suffering of the victim and the heroism of the victim’s family. That view, too, resonates in our society.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net