Garrett: Scalia on the death penalty

Brandon Garrett the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law wrote on TheCrimeReport.com about the late U.S. Supreme Court Justice Antonin Scalia's record on criminal law and of particular interest Scalia's position on the death penalty. Here is what Professor Garrett wrote:

In death penalty cases, unable or unwilling to perceive such a bright line argument against cruel and unusual punishments, except perhaps if medieval forms of torture were involved, Justice Scalia stood firm as the most vociferous supporter imaginable of the death penalty—even for the innocent—famously calling the specter of wrongful executions "embarrassing" but of no consequence to the U.S. Supreme Court.

In objecting to granting relief to Troy Davis, he asked what the lower courts would possibly do in the case, absent some clear recognized claim of innocence. He was right: the lower courts later denied relief, and Davis was executed.  It is hard to imagine that any successor to Justice Scalia will be quite as aggressively and outright politically pro-death penalty.

Indeed, Justice Scalia himself began to think that time might no longer be on his side, as more Justices have moved away from the death penalty (as has the country).

Last summer, in Glossip v. Gross, responding to a detailed empirically-supported opinion from Justice Steven Breyer, Justice Scalia characteristically responded with vitriol to the suggestion that there might be a constitutional problem with the modern death penalty.  He called  it more of the same product of "abolitionist studies" (although one of those cited was a book of mine, which include a study Justice Scalia had himself cited in one of his Confrontation Clause rulings).

Justice Scalia called the death penalty debate repetitive, like the movie "Groundhog Day."  He was right, though, that there will be "the same risk of wrongful convictions" without the American death penalty, "if horrendous death–penalty cases were converted into equally horrendous life–without–parole cases."

That is the problem we now face with declining death sentences and rising life-without- parole sentences in this country.  Justice Scalia’s comment begs the question, of course, of why we do not have better constitutional protections for adequate counsel and ability to claim innocence in life cases (or death cases).

The reason for that "horrendous" state of affairs includes decades of votes by Justice Scalia.

On jury trial rights, Justice Scalia emphasized the defense right to confront "testimonial" witnesses, with important results in a series of cases over the past decade that involved forensic science, from drug tests to modern DNA tests.

Crime labs had often simply introduced a one-page certificate of analysis reporting the result of a forensic test.  Justice Scalia's interventions meant that the defense now typically has the right to cross-examine that analyst on the stand. It is an important right, although it may not do much to improve reliability of forensics in the lab, particularly where so few cases go to trial.

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