United States Supreme Court Associate Justice Antonin Scalia, one of the Court’s most ardent proponents of capital punishment, has died at age 79.
Justice Scalia succinctly summarized his opinion of the constitutionally of the death penalty at a book signing at the American Enterprise Institute in 2012. He said: “The death penalty? Give me a break. It’s easy.”
As he was with other issues, Justice Scalia was often ascerbic in his critique of opposing views about the death penalty. In response to Justice Blackmun’s statement in 1994 in Callins v. Collins that he would “no longer tinker with the machinery of death,” Scalia labeled attacks on the constitutionality of the death penalty “sanctimonious.” In 2015 in Glossip v. Gross, he called the arguments of Justice Stephen Breyer and Ruth Bader Ginsburg suggesting that the death penalty may be unconstitutional “gobbledy gook.” When Justice Breyer concurred with the Court’s ruling in Ring v. Arizona that capital defendants have a right to a jury determination of aggravating circumstances necessary to impose the death penalty, but based his decision on an Eighth Amendment right to jury sentencing rather than the Court’s Sixth Amendment right to jury factfinding announced in Apprendi v. New Jersey, Justice Scalia wrote: “While I am, as always, pleased to travel in Justice Breyer’s company, the unfortunate fact is that today’s judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so–by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.”
Justice Scalia was an avid adherent of what he called “textualism,” and chafed at the Court’s use of “evolving standards of decency” to exempt individuals and offenses from capital sanctions. He supported the imposition of the death penalty against juvenile offenders and those with intellectual disabilities and was undaunted by the prospects of executing the innocent. In 2002, Justice Scalia dissented from the Court’s holding in Atkins v. Virginia that the 8th Amendment prohibits the execution of persons with mental retardation (now called intellectual disability), writing “The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders.” He had previously voted with a 5-4 Court majority in 1989 in Penry v. Lynaugh to uphold the constitutionality of subjecting the intellectually disabled to the death penalty. Also in 1989, he authored the Court’s 5-4 opinion in Stanford v. Kentucky holding that the imposition of capital punishment upon a 16-year-old offender did not constitute cruel and unusual punishment under the 8th Amendment. He dissented from the Court’s 2003 decision in Roper v. Simmons overturning Stanford and barring the execution of juvenile offenders. Justice Scalia and Justice John Paul Stevens set the polestars for the debate on innocence and the death penalty in the case of Troy Davis (In re Davis) in 2011. While Stevens wrote that “it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person,” Scalia countered that “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Justice Scalia was part of 5-4 conservative majorities in a number of significant death penalty cases, from the 1987 decisions in McCleskey v. Kemp severely limiting the ability of capital defendants to obtain relief for race discrimination in the application of the death penalty and in Tison v. Arizona permitting the execution of offenders who neither killed nor intended that a killing take place, but exhibited reckless indifference to human life. His 2006 concurring opinion in Kansas v. Marsh expressed doubts that any innocent person had been executed; if any had been, he said death penalty opponents would have “shouted from the rooftops” the innocent’s name. In Callins, he singled out the brutal murder of an 11-year-old girl as support for capital punishment: “How enviable a quiet death by lethal injection compared with that!” Twenty years later, DNA exonerated Henry McCollum, the intellectually disabled North Carolina man who had been sentenced to death for that murder.
(M. Sherman, “Justice Antonin Scalia dead at 79,” Associated Press, February 13, 2016.) See U.S. Supreme Court.