Tuesday
Kozinski and Neuborne on the death penalty
Today, I saw 9th Circuit Judge Alex Kozinkski have a debate/discussion with Prof. Burt Neuborne on the topic of the death penalty in general and Roper in particular today, though actually very little discussion was focused on Roper. I don't have any notes from it, so I just want to make a couple of brief comments.
They didn't disagree with the result in Roper, and Neuborne also approved of the reasoning. After Neuborne gave a litany of important cases which he thinks the Judges decided based upon their personal moral beliefs (but were not inconsistent with the text), Kozinski said something along the lines, "Sure you're fine with it now, but how are you going to feel when the Thomas Court starts doing that?" Neuborne seemed remarkably sanguine about the idea. I'm not, which is the main appeal some variety of textualism has for me. I want to constrain the power of judges, because my fear of judges who disagree with my policy preferences doing evil is greater than my hope of judges who agree with me doing good.
While I've written about my issues with Roper, I don't understand at all the objection that Kozinski raised about Kennedy counting the states which don't have any capital punishment as being against capital punishment for juveniles. Kennedy is counting to determine the "evolving standards of decency," and wants to know how many states consider capital punishment of juveniles to be indecent or otherwise bad policy. The answer to that question has to include the states banning capital punishment all together, they clearly think capital punishment of juveniles is indecent, even if they don't think it's more indecent than capital punishment of adults. Excluding them, and then finding that a majority of the states which approve of the death penalty also approve it for juveniles is clearly the wrong answer.
Kozinski also tried to make a lot out of, "How do you deter people from committing crimes after they've already been sentenced to life without the possibility of parole?" That's a hard question, though of course solitary confinement is one alternative. Also, this problem doesn't go away with a wide ranging death penalty, because how do you deter people who are currently appealing their death sentence? You can put them in solitary confinement, or you can kill them the minute they're convicted in the first trial, but otherwise the problem repeats itself at a lower level.
Also, Kozinski wasn't as funny as I've seen him be in writing or in reports of other speeches. Maybe it was just the topic though.
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They didn't disagree with the result in Roper, and Neuborne also approved of the reasoning. After Neuborne gave a litany of important cases which he thinks the Judges decided based upon their personal moral beliefs (but were not inconsistent with the text), Kozinski said something along the lines, "Sure you're fine with it now, but how are you going to feel when the Thomas Court starts doing that?" Neuborne seemed remarkably sanguine about the idea. I'm not, which is the main appeal some variety of textualism has for me. I want to constrain the power of judges, because my fear of judges who disagree with my policy preferences doing evil is greater than my hope of judges who agree with me doing good.
While I've written about my issues with Roper, I don't understand at all the objection that Kozinski raised about Kennedy counting the states which don't have any capital punishment as being against capital punishment for juveniles. Kennedy is counting to determine the "evolving standards of decency," and wants to know how many states consider capital punishment of juveniles to be indecent or otherwise bad policy. The answer to that question has to include the states banning capital punishment all together, they clearly think capital punishment of juveniles is indecent, even if they don't think it's more indecent than capital punishment of adults. Excluding them, and then finding that a majority of the states which approve of the death penalty also approve it for juveniles is clearly the wrong answer.
Kozinski also tried to make a lot out of, "How do you deter people from committing crimes after they've already been sentenced to life without the possibility of parole?" That's a hard question, though of course solitary confinement is one alternative. Also, this problem doesn't go away with a wide ranging death penalty, because how do you deter people who are currently appealing their death sentence? You can put them in solitary confinement, or you can kill them the minute they're convicted in the first trial, but otherwise the problem repeats itself at a lower level.
Also, Kozinski wasn't as funny as I've seen him be in writing or in reports of other speeches. Maybe it was just the topic though.
