Fearing Too Much Justice

That's the title of must-read commentary by Berkeley Law prof Elisabeth Semel for the National Law Journal.  LINK

Now that the U.S. Supreme Court has approved Kentucky's administration of lethal injection in Baze v. Rees, prosecutors, especially in the Death Belt, are tripping over themselves to roll the gurneys back into the execution chambers. Within hours of the opinion's release, politicians made announcements similar to the one delivered by California's Governor Arnold Schwarzenegger: "Today's U.S. Supreme Court decision supports California's lethal injection protocol and allows our case to move forward."

Never mind that executions in California are on hold not because of Baze but because a state court ruled that the corrections department had failed to promulgate its protocol according to the requirements of the state's administrative procedures act. And never mind that a federal judge who concluded that the state's procedures violated the Eighth Amendment has yet to review the revised protocol to determine whether it satisfies the Baze standard. Politicians like Schwarzenegger have grabbed hold of Baze, proclaimed that it has ended challenges to lethal injection and hope to ride it through a wave of soon-to-be-scheduled executions. Whether they are successful depends on whether lower courts heed, or ignore, the complexities of the court's seven opinions.

And:

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one. In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey. If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.