Missing Justices Brennan and Marshall

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May 03, 2011 Missing Justices Brennan and Marshall

Death penalty: Always unjust

I always will miss late Supreme Court Justices William Brennan and Thurgood Marshall.

In the death penalty arena, the two opposed the death penalty in every Supreme Court opinion that I read on capital punishment, starting from the 1970’s.

When the rest of the Supreme Court justices would greenlight an execution, Justices Brennan and Marshall commonly would include a proclamation along the following lines: “Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 231 (1976), we would grant the application for stay in order to give applicant time to file a petition for writ of certiorari, and would grant the petition and vacate the death sentence in this case.” Stewart v. Wainwright, 478 U.S. 1050 (1986) (Brennan, J., and Marshall, J. dissenting).

Justice Brennan was replaced by former Justice Souter (replaced by Justice Sotomayor after he retired), who turned out not to be the horror that I had anticipated, with his thin written record not having provided a sufficient crystal ball about him either to his initial supporters nor naysayers. Justice Marshall was replaced by Justice Thomas, who seems to be likable off the bench (after subtracting the allegations by Anita Hill about him, which is a big subtraction), but whom I wish would not be on the bench.

None of today’s Supreme Court justices view the death penalty as unconstitutional. Instead, their main differences on executions go to line drawing, including whether capital punishment is permitted for other than murder and for crimes committed by minors, the procedure required to permit a death penalty verdict, and the method used to execute.

Consequently, nowhere yesterday was heard any mention of the death penalty’s constitutionality (or unconstitutionality) when the Supreme Court took just six pages unanimously, per curiam, to reverse the decision of the Sixth Circuit (which seems to be moderate compared to the other circuits), where the Sixth Circuit reversed an Ohio state death sentence, with the Sixth Circuit having “concluded that the [jury] instructions given during the penalty phase of [defendant] Mitts’s trial unconstitutionally ‘deprived the jury of a meaningful opportunity to consider” a life sentence.’ 620 F. 3d, at 658, 657.” Bobby v. Mitts, ___ U.S. ___ (May 3, 2011).

The trial court in this Mitts case gave he following death-phase instruction that the Sixth Circuit reversed on (and which execution the Supreme Court reinstated):

[Y]ou must determine beyond a reasonable doubt whether the aggravating circumstances, which [Mitts] was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case.

When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.

I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on [Mitts].

. . . . . On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.


I believe that such an instruction, wrongfully, will lead to more executions than there would be with instructions that more immediately and clearly point out the option for the jury to decide on a life rather than death sentence.

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