The machinery of death
Congress should act to provide robust procedural safeguards against misapplication of the death penalty.
Let’s start with a simple aperitif. Up to a point, it’s amusing watching the House of Representatives floundering as it tries to elect a leader. The House is closely divided between three minority blocs, viz. one unified Democratic Party and two contending factions of the Republican Party. No candidate acceptable to two of the three has emerged. But sooner or later, the press of business will outweigh the entertainment value.
There’s a simple solution. In Britain, the Speaker of the House of Commons is a nonpartisan officer whose primary loyalty is to the prerogatives of the institution. This is the moment for the US House of Representatives to adopt that salutary model. Backbench Democrats and Republicans should bypass their obdurate leaderships and coalesce around a consensus candidate elected to be nonpartisan, preferably someone who is either the Dean of the House or someone of similar institutional experience and standing. The new-model Speaker should be charged with being a referee: Keep the trains running, enforce the rules, defend the House. This is the way forward. It can happen, and it should happen.
It won’t, of course. But it’s there for the taking.
Next into the tank is an unpleasant but necessary bit of business. In Illinois this week, after Hamas attacked Israel, a man attacked a Palestinian mother and murdered her child. He did so, the mother says, while shouting “You Muslims must die.” I condemn such attacks unequivocally. No new information has emerged in the week since, but it should be obvious that attacks on American Muslim civilians are as appalling in kind as attacks on Israeli Jewish civilians. While there’s no evidence of the coordination, foreplanning, and political agenda that would place it on all fours with the Hamas terrorist attacks, this case presents a clear situation where hate crime intensifiers should apply. (I’ve been skeptical of hate-crimes laws, but it seems clear that murder for purposes of hate crimes and terrorism are depersonalized in a way that makes them more morally repugnant than personalized crimes, though I would be hard-pressed to explain why without using the words “Immanuel Kant.”)
Now let’s turn to this week’s main business.
Two death cases come to One First Street.
I know that lengthy descriptions of procedural history are very boring, but stick with me here.
Via Chris Geidner, we learn that Texas executed Jed Murphy on October 10. In 2001, a jury convicted Murphy of murdering an octogenarian. Penalty phase jury findings enhanced his sentence to death, specifically, that he had salted prior crimes with acts of violence. See Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003); Murphy v. Davis, 901 F.3d 578, 583 (5th Cir. 2018); Tex. Code Crim. Proc. Ann. art. 37.071, § 2. In 2009, state habeas review was denied. Davis, 901 F.3d at 587 (citing Ex parte Murphy, 2009 WL 766213 (Tex. Crim. App. Mar. 25, 2009))). Murphy then sought a new lawyer and federal habeas review, which (for reasons that need not detain us) entailed another round of state habeas. None of it availed. See Ex parte Murphy, 2010 WL 3905152 (Tex. Crim. App. Oct. 6, 2010); Ex parte Murphy, 2012 WL 982945 (Tex. Crim. App. Mar. 21, 2012); Murphy v. Davis, 901 F.3d 578 (5th Cir. 2018). In March 2023, Murphy asked the state trial court to test DNA evidence as to the enhancing crimes. The state trial court refused, which the state court of appeals affirmed on September 26, 2023. Murphy then returned to the federal district court, which issued a stay of execution. On October 10, 2023, the federal court of appeals declined to displace that stay, whereupon Texas asked the Supreme Court to vacate the stay, and the court did so without opinion. (Docket.)
And, via The Grauniad, we learn that Texas is now clear to execute Robert Roberson. Roberson was convicted in 2003 of murdering his infant child. See Roberson v. State, No. AP-74,671 (Tex. Crim. App. June 20, 2007). In 2009, state habeas review was denied. Ex parte Roberson, Nos. WR-63,081-01, WR-63,081-02, 2009 WL 2959738 (Tex. Crim. App. 2009). In 2016, after Texas enacted a statute allowing collateral attack on convictions based on the emergence of “relevant scientific evidence . . . [that’s now] available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial,” Tex. Code Crim. Proc. art. 11.073, a second state habeas process was sought, and, on January 11, 2023, denied. Roberson petitioned the Supreme Court for cert, arguing that a conviction violates the Fourteenth Amendment's due process requirement “when later medical and scientific understanding undermines all core premises previously associated with that causation theory,” at least when the state has provided a vehicle for mounting such a challenge. On October 2, 2023, that petition was denied. (Docket.)
The Supreme Court in Winter.
There are many differences between these cases, both in their procedural posture as they came to the Supreme Court and also in the cases themselves. (For example, Murphy attacked only his sentence, Roberson, the underlying conviction.) And my discussion of the cases is deliberately threadbare as to the substance of what they pressed. But they also have a few things in common. For one, I doubt that either presented a certworthy case, applying the court’s usual criteria. We should pause for a moment to explain that and set it in context.
In the twentieth century, the Supreme Court attained near-total control of its docket. The first big blow came in 1925, and the final hammer fell in 1988.1 Some paths of direct appeal perdure, but they’re rare outside of the elections context.2 Most litigants bring their case to the court by petitioning for a writ of “certiorari” (ser-tea’o-RAR-ree)—roughly, “review,” typically abbreviated as “cert.” (Trivia: That’s why most cases involve a “petitioner and respondent” not an “appellant and appellee.”) The court then chooses its cases from this menu of several thousand petitions a year.
Broadly-speaking, a case is certworthy if the court below struck down a federal law (i.e. the Supreme Court steps in to ensure interbranch comity), if the court below clearly acted athwart the Supreme Court’s precedents (i.e. the Supreme Court steps in to enfore its intrabranch authority), or cleanly presents an important question of federal law on which the courts below are divided (i.e. the Supreme Court steps in to ensure the uniformity of federal law). These are “hard” factors—not, admittedly, very hard. But there are soft factors, too. Like everyone else, the justices have issues they find more or less interesting and important. And the justices don’t exist in a vacuum; they know the lower-court judges and have opinions about them. When a respected circuit judge dissents below, they shine a Bat Signal for justices broadly aligned with them, and when a notorious problem jurist wrote the opinion below, that can attract the Eye of Sauron; people used to talk of the “Writ of Reinhardt.”
The number of cases that the court finds certworthy has dwindled. It now averages (on the plenary docket, anyway) less than eighty each year. “During the 1940s, the Court decided roughly 177 cases per Term. During the 1950s, that number dropped to approximately 124 per Term. . . . Starting in the late 1980s and moving forward into the 1990s, however, that number dropped precipitously. By the 2000 Term, the Court heard only 87 cases.” Owens & Simon, Explaining the Supreme Court's Shrinking Docket, 53 Wm. & Mary L. Rev. 1219, 1228 (2012). The court docketed 6597 petitions in OT1995, granting plenary review in 105. It docketed 4159 petitions in OT2022, granting plenary review in 61. And of those, I see no reason to suppose that it is any less true now than it was then that a large number of petitions filed are so patently frivolous that “no one of the nine [justices] would have the least interest in granting them.”3
The Federal courts and Habeas Corpus.
Murphy and Roberson are not outliers. Federal courts routinely receive habeas corpus petitions from prisoners, particularly from death row prisoners hoping to thwart or delay their executions. Many of those petitions are desultory, dilatory, or both. For that reason, in 1996, Congress narrowed the gates of review. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Once “a state court has adjudicated a federal claim on the merits, a federal court can grant habeas relief only if the petitioner establishes the state court decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Horsey v. Rankins, No. 23-6083, at *7 (10th Cir. Oct. 4, 2023). AEDPA also imposes strict limits on second or successive petitions, evidentiary hearings, and deadlines.4
As hardened by AEDPA, federal habeas law is full of procedural bear-traps that are “[s]tringent,” Shinn v. Ramirez, 142 S. Ct. 1718, 1728 (2022), “elaborate,” Bracy v. Schomig, 286 F.3d 406 (7th Cir. 2002) (en banc) (Posner, J., concurring in part and dissenting in part), and ready to impale all but the most careful of pro se litigants on spikes given abstruse labels—opaque to the general public—such as “exhaustion,” Shinn, 142 S.Ct. at 1732; Picard v. Connor, 404 U.S. 270 (1971), and “procedural default,” Shinn, at 1743 (Sotomayor, J., dissenting); Wainwright v. Sykes, 433 U.S. 72 (1977). See generally Garrett & Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739, 1742 (2022). This “circumscri[ption of] a federal habeas court’s review of a state court decision,” Lockyer v. Andrade, 538 U.S. 63, 70 (2003), imposes hurdles that are “difficult to meet and [a] highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt . . . [and t]he petitioner carries the burden of proof.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (cleaned up).
This imposing knot of law is no accident. See Harrington v. Richter, 562 U.S. 86, 102 (2011) (“this standard is difficult to meet . . . because it was meant to be”). The act “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal,” Harrington, 562 U.S. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment))—that it is an “extraordinary remedy.” Shinn, at 1731.
That “view” of habeas law was questionable in 1996 and in 2023 is ripe for reconsideration. When Congress enacted AEDPA, the landscape before it was different in two significant ways. First, the shrinking workload of the Supreme Court, which I discussed above. Second, the shrinking number of executions: Sixteen States executed 56 prisoners during 1995. The year before, thirteen States executed 31 people, and the year before that, ten and 38. By contrast, in 2022, five states executed 17 people and in 2021, six states executed 11 people. Then, there were 3,219 prisoners on death row; today, formally, 2,331. (Realistically, 1,660, because 671 of those are in California, which has a death penalty only on paper. I’ll eat my hat if California ever conducts another execution.)
Although AEDPA came after years of proposals for habeas reform, see Garrett & Phillips, supra, at 1749 ff., it “was drafted, enacted, and signed in an atmosphere of anger and fear” following the Oklahoma City bombing, id., at 1751 (cleaned up) (quoting Stevenson, The Politics of Fear and Death, 77 N.Y.U. L. Rev. 699, 701 (2002)). Its purpose was to “streamline Federal appeals for convicted criminals sentenced to the death penalty.” Id., at 1742 n.9. It has failed. (Note that the two prisoners on whom we’re focussed in this newsletter have something else in common: They were convicted more than twenty years ago.) And its collateral damage (pun intended) has been subject to ongoing criticism. See id., at 1744.
Death is (or should be) different.
Skepticism of government power is one of the few things on which Americans can agree. Different parts of society distrust different parts of government to different degrees, but it’s passing rare nowadays to encounter someone who would bet their life on the government doing its job right. Nevermind complicated theories of justice: Common courtesy demands that we extend the same skepticism when someone else’s life is in the balance.
Here’s another dose of cold, hard reality. We don’t trust the government, and we don’t trust each other, either. The last few years have shown an America roiled by distrust. How can it be that in a country where most of us can point to tens of millions of people (different millions, to be sure) whom we regard as incapable of fairly weighing evidence and rendering a fair verdict, we regard the weighing of evidence and verdict rendered by just twelve people to be forever beyond cavil? When Trump loses his jury trial in the District of Columbia, his supporters will attack the jury as tainted by bias, and when he wins his jury trial in Florida, his opponents will attack that jury for the same. Watch and see. Why, then, would we assume that the very same people are magically given oracular wisdom when they sit on capital juries?
Those whom the state would deprive of life “are entitled to our painstaking review of their convictions and death sentences because, as the Supreme Court has often recognized, death is different.” Bracy, supra, 286 F.3d at 412. Indeed, death is doubly different:
From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.
Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (plurality); accord Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring) (death “is unique in its total irrevocability”). In Furman and Gregg v. Georgia, 428 U.S. 153 (1976), the Burger Court concluded that the death penalty, though not inherently cruel and unusual punishment, merited special concern and scrutiny. “A fair statement of the consensus expressed by the Court in Furman is that ‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’” Zant v. Stephens, 462 U.S. 862, 874 (1983) (quoting Gregg, 428 U.S. at 189). The consensus that “death is different from every other form of punishment [so as] to justify rules minimizing the risk of error in capital cases,”5 is why the Warren–Burger courts erected “a system structured to produce reliable, rational, and rationally reviewable, determinations of sentence.”6
To be sure, that system is not well-rooted in the Constitution’s text and original meaning—the touchstones of interpretation and the starting-points of construction. (As I noted in Cutting the gordion knot, “interpretation means recovering the semantic content of a provision while construction means creating doctrine to apply that content to concrete realities”; see the footnoted citations to that sentence for more.) I think of it as being akin to Miranda: They constitute “prophylactic rule[s] designed to increase the efficacy of another prophylactic rule [viz., Furman]. It has nothing to do with the defendant’s guilt and everything to do with insisting that the government play straight with those it prosecutes.”7
(Justice Scalia would have said that the court lacks the power to prescribe such doctrinal fences, singling out Miranda as particularly egregious. See Dickerson v. United States, 530 U.S. 428, 444 ff. (2000) (Scalia, J., dissenting). I can’t agree. And, in fact, neither could Justice Scalia; if the court can’t do that, it would be hard to make sense of, for example, Plaut v. Spendthrift Farm, 514 U.S. 211 (1995) (per Scalia, J.) (separation of powers), or the line of cases commencing with Apprendi v. New Jersey, 530 U.S. 466 (2000) (joined by Scalia, J.) (intersection of non-jury factfinding and sentencing). The court can create doctrine to add meat to constitutional bone, it has, and in many cases, it should.)
One more thing.
There’s another reason why plenary review is desirable. Both Murphy and Roberson presented histories that are long and winding. For a dispassionate, fair-minded observer—who by definition doesn’t just accept Chris’ and the Grauniad’s reports at face value—to assess them, she would have to spend (as I did) several hours combing through extensive material just to have the faintest idea what’s going on. And those materials, contained in briefs and judicial opinions spanning twenty years, in turn rely on said observer having sufficient frame of reference to understand what she’s reading.
Moreover, the availability and discoverability of those documents is not a given. The Supreme Court recently began uploading and linking case documents by way of the case’s docket page on the court’s own website—an excellent development for which I applaud the court. I do wonder, though, how permanent those catalogs will prove. Link rot is real. Indeed, writing this very newsletter, I needed a cert petition from a case not ten years old; it was not easy to find. So if you’re reading this in good time after I wrote it, the links that I provided to the court’s docket will facilitate reconstruction of what Murphy, Roberson, or any other case not granted were asking the court to do. If you’re reading this in ten years, good luck.
This was true also of Garland v. Vanderstok and the cases that I wrote about in A geometry of shadow dockets. There, I said:
[T]he [shadow docket’s] critics' strongest (though seldom loudest) point . . . [is this:] When the Court disposes of cases without writing opinions, it can be hard to ascertain what is being done and why. It’s not want of reasoning but want of a summary of the procedural history that I would argue is the worst defect. In some of [the cases I’d discussed] . . . concurrences or dissents by the justices offered helpful guidance, but in most, I had to dig through briefs and opinions below to understand the context. If Shadow Docket critics demanded that the Court (even the clerk, in a brief syllabus) set out the procedural history in cases decided on the emergency motions docket, I would readily agree.
(Emphasis in original.)
Opacity, no less than “[s]ecrecy, makes it difficult for the public (including the bar) to understand the grounds and motivations of a decision, why the case was brought (and fought), and what exactly was at stake in it.” Mueller v. Raemisch, 740 F.3d 1128, 1135-36 (7th Cir. 2014). The public has an interest in the open and transparent administration of justice. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505 ff. (1984); Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002) (“the public cannot monitor judicial performance adequately if the records of judicial proceedings are secret”). Criminal process, particularly, should be carried out under the klieg lights of public scrutiny. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035–36 (1991); Richmond Newspapers v. Virginia, 448 U.S. 555, 568 ff. (1980); In re Oliver, 333 U.S. 257, 270 (1948) (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power”); United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). And capital cases, above all, warrant special scrutiny. See State v. Martini, 144 N.J. 603 (N.J. 1996) (“The public has an interest in the reliability and integrity of a death sentencing decision”).
Regardless of whether that public interest is judicially enforceable, or how far it extends when other countervailing interests are in the balance (as is the question in most of the cases just cited), it exists, and it is legitimate.
What should happen next?
There is ample room on the court’s docket for Congress to restore some tranches of mandatory jurisdiction, and collateral attacks on death sentences are a class of cases where mandatory review is especially warranted.
Whatever one thinks on the merits of any particular case (and as I said above, I doubt that either Murphy or Roberson had much claim), the court’s passing on them in silence would be easier to accept or defend if the court’s docket were pressed to the buffers. It is not. To the contrary, the can-it-possibly-go-lower declining number of grants has been a thing for as long as I’ve been watching the court; eighteen years now.
Congress should restore mandatory jurisdiction in some cases, and death penalty collateral review strikes me as an obvious candidate. The immediate beneficiaries of the change would be the condemned, yes, many of whom are guilty and some of whom will abuse the process. But it also serves the public’s interest (and confidence) in the integrity and administration of justice. While it will consume the court’s time, we are talking about a baker’s dozen cases a term! Don’t tell me the court doesn’t have time, or that the government taking someone’s life isn’t high enough stakes. I see no adequate reason why a court that is demonstrably not working very hard as compared to itself shouldn’t at least be obliged to explain why a person’s request that they not be killed by their government should be refused, even if it’s only in a one page per curiam opinion recapitulating the procedural history and describing what the petitioner was asking of the court and why.
And this is unequivocally a task for Congress. “The barriers to federal habeas corpus introduced by AEDPA—in combination with the ever-more restrictive ways the Supreme Court has interpreted such barriers—have left countless petitioners without an opportunity to bring a federal petition, let alone the ability to access a remedy, even for seemingly clear constitutional violations.” Garrett & Phillips, at 1763–64. The court that “found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief,” Calderon v. Thompson, 523 U.S. 538, 554–55 (1998), would not have reversed course of its own choice, and the court has grown, if anything, even more cold-blooded and callous as to the death penalty.8 Similarly, the death penalty states are growing, if anything, even more bloodthirsty and callous. In Murphy, Texas’ Emergency Application to Vacate Stay of Execution feigns puzzlement over what injury Murphy would suffer were Texas to put him to death. This position, remarkable enough when made in passing (concededly on a point arguably made relevant by Nken v. Holder, 556 U.S. 418 (2009)) becomes an entire section in the Application—which, not for nothing, was submitted in the name of Texas’ disgraced Attorney General Ken Paxton. Compounding the Application’s meretricious tone, on page 14, with a human life in the balance, the application makes a sophomoric pun about a lower-court finding being “fatal” for Murphy’s argument. Without Congressional intervention, neither the court nor the states will change course.
Last thoughts.
I’m not an abolitionist. I don’t believe that states should make the death penalty completely unavailable.9 I don’t believe that the Constitution forbids it, neither formally nor practically. See Glossip v. Gross, 576 U.S. 863, 869 (2015). Nor that the Constitution forbids its application to especially heinous crimes that are not murder. Contra Kennedy v. Louisiana, 554 U.S. 407 (2008) (dubitante). I’m sympathetic to suspicions that challenges of form and procedure are nothing more than “a backdoor means to abolish capital punishment in general.” Bucklew v. Precythe, 139 S. Ct. 1112, 1140 (2019) (Breyer, J., dissenting). I’m also sympathetic to the point that Federal courts should have “respect for ‘the State’s interest in the finality of convictions that have survived direct review within the state court system.’" Calderon, supra, 523 U.S. at at 555 (quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993)); see also Fry v. United States, 421 U.S. 542, 549 (1975) (Rehnquist, J., dissenting) (America’s “Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States” (quoting Texas v. White, 7 Wall. 700, 725 (1869)).
Nevertheless, death is different. Even if it is true that “[t]he writ of habeas corpus is an extraordinary remedy that guards only against extreme malfunctions in the state criminal justice systems,” Shinn, supra, 142 U.S. at 1731 (cleaned up), death is extraordinary. The power of the state to deprive its citizens of their lives is the gravest responsibility undertaken by any government; if death is to be meted out in my name, I want to be certain that it is warranted—or at they very least, that the condemned has had every opportunity to ventilate and vindicate any claims they might have. Cf. Payne v. Tennessee, 501 U.S. 808, 836–37 (1992) (Souter, J., concurring). Like it or not, people are wrongfully convicted and later exonerated; death sentences must therefore be attended by the most stringent possible standards and safeguards. That entails provision of appropriate vehicles for review, even if those vehicles will be susceptible to abuse.
§
Notes & Queries.
Word has it that Sen. Sheldon Whitehouse (D-RI) will be introducing a bill that does roughly what I suggested in The present and future of the Supreme Court. I look forward to reading it when it becomes available.
This week’s cover image—which I intend as the aforementioned grim and daunting visage of habeas law that confronts the inexpert imprisoned—was photographed by Kerry Raymond and released under a CC-BY-SA license.
There will not be an Idiosyncrat newsletter next week. Normal service will resume the following Sunday.
Cornucopia.
Love this. Thanks, powerful Youtube Al-Gore-rhythm!
A Stanford scientist wants us to believe that he doesn’t believe in free will. What I find egregious in this is not the pseudo-academic sophistry and phony intellectualism, but how thin it is and how easily it can be exposed as such. If I were to fly to Stanford and slap him very, very hard, he might press charges, he might slap me back, but the one thing he definitely won’t do is believe that I am blameless because I lack free will.
Rehnquist, The Supreme Court 237–38 (2d ed. 2001); Stern, Gressman, & Shapiro, Supreme Court Practice 188–93 (6th ed. 1986).
See, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017) (direct appeal under 28 U.S.C. § 1253); Harris v. Ariz. Indep. Redistricting Comm'n, 578 U.S. 253 (2016) (same); Citizens United v. FEC, 558 U.S. 310 (2010) (direct appeal under Section 403(a)(3) of the Bipartisan Campaign Reform Act 2002); Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (direct appeal under Section 4(a) of the Voting Rights Act 1965, then codified as 42 USC §1973b(a)(5) and subsequently renumbered as 52 U.S.C. § 10303(a)(5)).
Rehnquist, supra, at 233.
See Williams v. Taylor, 529 U.S. 362, 388 n.14 (2000) (opinion of Stevens, J.).
Baze v. Rees, 553 U.S. 35, 84 (2008) (Stevens, J., concurring in the judgment).
Kansas v. Marsh, 548 U.S. 163, 204 (2006) (Souter, J., dissenting) (citations omitted) (citing Woodson v. North Carolina, 428 U.S. 280, 305 and 303 (1976) (plurality opinion); Jurek v. Texas, 428 U.S. 262, 276 (1976) (joint opinion)).
United States ex rel. Miller v. Greer, 789 F.2d 438, 449 (7th Cir. 1986) (Easterbrook, J., dissenting), rev'd, 483 U.S. 756 (1987); see id., at 450 (they’re a kind of constitutional common law).
See, e.g., Barber v. Ivey, No. 23-5145, at *8 (July 21, 2023) (Sotomayor, J., dissenting from denial of cert).
Popes John Paul II and Francis I have each expounded against the death penalty. Reviewing these teachings and applying an intermediate level of deference approximate to Skidmore, cf. Gonzales v. Oregon, 546 U.S. 243, 256 (2006) (unless stronger deference applies, Skidmore is the appropriate standard, and “the interpretation is entitled to respect only to the extent it has the power to persuade), they are untenable. Skidmore factors (as my last newsletter discussed) include the thoroughness evident in the pronouncement's consideration, the logical coherence and persuasiveness of its reasoning, its consistency with earlier pronouncements, the presence or lack of relevant expertise, and other similar factors. Gonzales, 546 U.S. at 268-69. Another similar factor, obviously, is the focus of the treatment; brief consideration in passing is not entitled to the same degree of deference as a deep and focused consideration. Evangelium vitae, no. 56 (J.P.2 Encyc., 1995), fails this test. It offers scant reasoning of any kind, it marks a sharp break from the Church's previous position on the question, its author has no particular expertise, and it is one point but briefly alighted on in a much longer, broader, more diffuse piece. Fratelli Tutti 263 et seq. (F.1, Encyc., 2020), dwells longer on the question, but it, too, fails. Like John Paul, Francis' reasoning proceeds from a stolen base. Francis is sure that in the present world, states can protect their societies from criminals; even if this were true today, even if there were some reason to believe that it is always and everywhere true, the assumption that the only function of criminal penalties is immediate protection society from bad actors is false. See Baze, supra, 553 U.S. at 123 (Stevens, J., concurring in judgment) (the court’s cases have “identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution”); see also Booth v. Maryland, 482 U.S. 496, 519 ff. (1987) (Scalia, J., dissenting).