June 29, 2015

JUSTICE BREYER “SAYS THAT THE DEATH PENALTY IS CRUEL because it is unreliable; but it is convictions, not punishments, that are unreliable,” writes Justice Scalia in today’s Glossip v. Gross.

The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment….

Justice Breyer next says that the death penalty is cruel because it is arbitrary. To prove this point, he points to a study of 205 cases that “measured the ‘egregiousness’ of the murderer’s conduct” with “a system of metrics,” and then “compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remaining 196 cases [who were not sentenced to death],” post, at 10–11. If only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum “system of metrics.”…

It is because these questions are contextual and admit of no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure….”

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