an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Attorney General Ashcroft is unhappy that juries around the country seem less and less interested in killing people, the Los Angeles Times reports:
Shortly after arriving at the Justice Department nearly four years ago, Atty. Gen. John Ashcroft was faced with a new internal study that raised serious questions about the application of the federal death penalty.
A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.
For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.
Since then, he has pushed federal prosecutors around the country — often over their objections — to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.
But Ashcroft's quiet campaign, which has been overshadowed by his prosecution of terrorism cases, has made few inroads.
With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court- funded group that assists defense lawyers in capital cases.
Whether one supports or opposes the ability of the state to sentence people to death, one should applaud rather than decry the fact that juries in this country seem less willing to impose it. That trend has been produced by the individual decisions of members of the local communities all over the United States, who are supposed to represent, however imperfectly, the conscience of their communities. Even if one grants, as one must, that prosecutors and existing legal precedents play a role in the decrease in jury sentences of death, the trend is clear.
Juries all over the country are telling the courts that death is a matter of last resort, to be used sparingly, and only in the most serious cases. In many places they do not want it to be used at all. This is not timidity. It is not lack of empathy for victims. It is not insufficient concern with justice. It is civilization. By comparison with these juries all around the country, who regard the taking of a criminal defendant's life with supreme seriousness, Attorney General Ashcroft seems a savage, bloodthirsty brute.
Why is such a man the nation's chief law enforcement officer?
It's a completely different mindset about what constitutes justice. These guys genuinely see themselves as Nietzschean ubermenschen who are exercising their will to power to remake the world in the mold of their own bunkered and blinkered vision of American ideals. We have moved from the cynical to the banal: not Jesus Christ, but John Wayne, is the guiding philosophical light for Bush 04.
The ghosts of Abu Ghraib, the nameless Afghani prisons, and Guantanamo Bay rest uneasily, as the vampires in American uniforms and those being paid with American dollars still thirst for blood. Given the chance, Ashcroft will sanction the same on undeniably American soil. The federal courts stand as the last institution that can protect our best dreams for ourselves as twilight descends upon a Congress obsessed with reelection and a president with no moral center and no agenda other than victory. A slender reed indeed to support centuries of aspiration toward liberal ideals.
If one strongly believes in the death penalty (I surely don't), his reasoning is understandable. The troubling thing is that the lack of death sentences seems to arise from a clear desire by locals (a result of the Sixth Amendment, which mandates a local jury) against the penalty. Unless unreasonable, said discretion should be encouraged.
I'd add that the disparity in a few areas might arise from similar factors -- certain local juries are more likely to hand down death. Such disparity on some level seems to be an acceptable result of the local option encouraged by the Sixth Amendment. The 6A speaks of the "district" wherein the crime was committed, which promotes local justice even more than Art. III which speaks of the "state."
Say there are 56 death sentences, 47 from ten counties in the whole U.S. AG says "hey, disparaty! We need to make sure that all the counties have a similar death sentence rate, so let's increase the amounts as much as possible." In other words, let a few "bloodthirtsy" outliers determine the way. [I exaggerate for effect.]
Libs of course want consistency -- less death across the board. But, if necessary, the lesser evil would be limiting the harm. The alleged hypocrisy is hard to grasp unless the claim is that consistency is the highest good, no matter how it is reached.