"The American people have determined that the good to be derived from capital punishment — in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes — outweighs the risk of error. It is no proper part of the business of this court, or of its justices, to second-guess that judgment, much less to impugn it before the world ...," Scalia wrote.
Monday, June 26, 2006
Have we, now?
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7 comments:
What's the last word from Congress about the death penalty? In what sense is it a state's decision? Are there federal crimes that carry the death penalty by statute? Treason? That would imply that killing traitors at least is OK by Congress and so "the people," by definition, as the courts speaketh. Remember: justice-speak isn't English.
Maybe this is what Scalia's on about. Just look at what all the people'll kill ya for, he's saying.
Touche! You nailed the stupidest thing a very smart man has said in some time. I'm (barely) old enough to remember when the American people had determined that the good to be derived from segregated schools, buses and lunch counters outweighed the risk that such a policy was erroneous. Fortunately, there was a Supreme Court that was willing to second-guess and impugn that particular gem of judgment.
On the other hand, in US v. Gonazlez-Lopez, Scalia stepped up to the plate for the right of criminal defendants to choose their own attorneys...
I shan't be joining the "Viva Scalia" chorus anytime soon, but his opinions in Crawford and Gonzalez place intellectual honesty ahead of reflexive knee-jerk "tough on crime" conservatism. Let's admit it...he's scary smart.
"Murder involving torture. (18 U.S.C. 2340)"
God, MT. What do we do with this one?
I always hear from lawyers that Scalia is really smart, writes great briefs, and so on. Then I see him do and say dopey things that seem almost purely ideological and not terribly "intelligent" in the ideal senses in which a philosopher might use the term.
I'm confused about Scalia.
I think you're correct that we lawyers use the term "smart" to mean something different. It's crafting that persuasive argument, supporting your position with precedent, addressing the contrary position. He does all those things very well, with a panache not usually found in appellate decisions. (Granted, the panache bar is pretty low in legal writing.)
Now, if you want to read the opinion that shapes and informs my legal drafting, check out this decision, in which an injured woman and children are denied recovery for their injuries. It's a laff riot!
That's hilarious, Roxtar (others: check out Black Sky Theory in the blogroll for the decision).
I like this as a sample:
"It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street toward 2d Avenue, whither they were resorting 'with expedition swift as thought' for most obvious reasons."
Anyway, the deterrence argument is probably the weakest one of all for capital punishment. Empirical assessment yields no proof, and anecdotal evidence yields no proof. The deterrence claim is largely a red herring.
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