Supreme Court and Capital Punishment | Constitutional Regulation
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Supreme Court and Capital Punishment | Constitutional Regulation

LARRY TRIBE: Good afternoon. I’m very glad to
see you all here. I’m Larry Tribe, and
I’m honored that Carol asked me to moderate
this closing panel discussion of the
conference marking the publication of Carol and
Jordan’s monumental work, Courting Death. Unfortunately, the only
parts of today’s conference that I was able to attend
were this morning’s panel, which was spectacular,
I thought, and this final panel, which
I hope will not disappoint. If the panel on race and the
panel on broader criminal justice issues were
nearly as exciting as I found the first panel, and
if Don Verrilli was his usual, very thoughtful and
deeply insightful self, then I must have missed some
pretty awesome presentations and discussions. Important as all of us
regard the ultimate abolition of capital punishment
in the United States to be, at least as
important I think are the lessons about what
Carol and Jordan described in their book as issues
of political backlash and legitimation,
discourse shaping, and institutional and remedial
constraints, all of which I suspect will feature in this
closing panel’s presentations. Unavoidably hovering over
the whole conference, certainly over this
morning’s panel, has been the shock delivered
by the American electorate 10 days ago, a shock
that most of us– hm? SANDY LEVINSON: By
the electoral college. LARRY TRIBE: Well, you know,
he’s not president-elect yet, that’s December 19th. But we’re shocked anyway. And we’re still processing it. And in that connection,
I was struck by a remark that Carol made this
morning, responding to a question about how
relatively little progress the Obama administration
seems to have made over the past eight years with
respect to the death penalty and criminal justice
reform generally. Carol said the one good thing
about that otherwise lamentable omission is that it
prevents criminal justice reform from becoming
an Obama legacy item that those who rose
to power on November 8th will feel a need to repudiate. That was part of Carol’s
search for silver linings. It’s a search that I’ve
been engaged in too, 24/7, ever since the events. I suppose another of
the very few silver linings we can fasten on is the
teachable moment silver lining. It involves the lessons that
we’re having to learn anew about things like the huge
role played by contingency, the difficulty of predicting,
as Carol reminded us, I think, especially the future, as
Yogi Berra famously observed, and the crooked path that
we seemed destined to follow toward the moral progress, that
[? Link ?] [? Kaplan ?] talked about and Michael
Meltsner has sought, a point that Evan
Mandery quoted from Courting Death this morning. Even if, as Martin Luther
King, Jr., believed, the long arc of
the moral universe ultimately bends
toward justice, we are clearly living
through a bracing reminder that the arc of that universe
sometimes reverses course and sometimes does back flips. I found especially clarifying
this morning [? Karina ?] [? Layne’s ?] framing of
Courting Death in terms of the way that the dense jungle
of legal regulation of capital punishment over the past four
decades has served mostly as a facade to the end
of disowning death, enabling the perpetuation
of a system that, as she brilliantly put it,
kills without any killers, a system in which nobody
has to take responsibility for the harms inflicted. I shared the sense that
Jordan Steiker expressed when he generalized that
observation to a theme central to the work of the
great Robert Cover, that we use law and
legalism to cover, as it were, to mask
violence and injustice, even while telling ourselves
that we use the rule of law to attain justice. I’ve concluded over
more than four decades of thinking and
teaching and writing about constitutional law that a
surprising amount of that body of law is all about
the passing of bucks and the evading
of accountability. Well, I hope today’s panel
will offer some reflections on that broader theme
and on the aspiration to make law more of
a force for justice than a mask for injustice. And I hope there will be
some reflection on what the election and the
upheaval that it portends means for that aspiration,
including what we as scholars and students and lawyers
might do to justify not losing heart altogether. Now, your materials contain
bios of each of our very distinguished panelists. So I don’t have to
introduce them as usual. I can say they need
no introduction, although this time
it’s actually true. I think they’ll talk for 15
to 18 or so minutes each, and then hopefully that will
leave some time for interchange within the panel
and with all of us. Our first panelist
is Pam Karlan, the Kenneth are Harle
Montgomery Professor of Public Interest
Law and Co-director of the Supreme Court Litigation
Clinic at Stanford Law School. Pam? PAM KARLAN: Well, when the
New York Yankees celebrated Yogi Berra Day,
Yogi Berra got up and said he wanted
to thank everybody for making the day necessary. And so I would like to thank
Carol and Jordan for making today necessary, and
also observe that there’s another Yogi Berra quote that
I think their book illustrates quite powerfully,
and it’s not the one about it’s tough to make
predictions, especially about the future. Although I’ll turn
to that in a moment. But also, a line that he
once said that I think explains in a very succinct way
a lot of the book’s arguments about why the death
penalty is falling apart, which is a line Yogi Berra said
about going to a restaurant. And somebody asked
him whether he was going to go to a
particular restaurant. He said, no one
goes there anymore. It’s too crowded. And I think that’s actually a
pretty apt description of parts of the dynamic that Jordan and
Carol talk about in their book. At a level that’s perhaps
subconscious, or knowing Carol so well, a bit poetic,
there’s something striking about the
titles of two of Carol and Jordan’s most perceptive
works about capital punishment– the work
we celebrate today, which is Courting Death, and
a piece from a decade ago in the Journal of Criminal
Law and Criminology, “The Seduction of Innocence.” Having read “Seduction”
when it came out in 2005, one of the things I’d suggest is
that Carol and Jordan’s journey in their careers in
some ways mirrors the jurisprudential journey
that Courting chronicles, one in which unpredictable
consequences show– and here, we turn back to that
famous Yogi Berra quote– that it’s tough to make
predictions, especially about the future. And I think when it comes to
constitutional litigation more generally, part
of the reason it’s tough to make those
predictions about the future is there’s a short term future,
and there’s a long term future. And the idea that the
future is unidirectional, and that it’s not
cyclical in some ways, with ever-expanding
cycles, turns out, I think, to be a mistake. So for example, there’s
a wonderful quotation from a president to whom
all look back nostalgically at his reason and the like,
George W. Bush, who said, I believe we’re on an
irreversible course towards more freedom
and democracy, but that could change. And I think that
is a lesson that we have been taught in several
areas of constitutional law, perhaps none more than
the right to vote, where I think we are now
looking at an attempt at a second
redemption that would end the second Reconstruction. In my comments today, I
want to do two things. First, I want to take chapter
seven of Courting Death in which Carol and Jordan
identify, on page 218, what they call four of the most
interesting and generalizable aspects of the Court’s
regulation of capital punishment. And they match each
of those aspects to another recent area of
constitutional litigation. And I want to shuffle
the pairs that they do. Then, I want to return to
the question of innocence and suggest that it
offers a particularly pointed illustration
of a critical feature of successful constitutional
litigation campaigns, something Derrick Bell once
called the interest convergence hypothesis, but one might just
as accurately call an appeal to solidarity, or to empathy. Now, chapter seven of their
book, Carol and Jordan identify four repercussions
of the Court’s intervention in capital punishment. The first of these is
political backlash. The second is
legitimating efforts. The third is
remedial constraints. And the fourth is
discourse shaping. And they take each of these
ideas– political backlash, you pretty much all understand. We’ve talked about that
several times already today. Legitimating efforts,
people pretty much– we’ve talked about
those quite a bit today. I’m sort of reminded,
standing up here now, of a quotation from one of
my other favorite quotable sources, Elaine Jones,
who says, a lot of times, everything’s already been
said, but not yet by everybody. And the third,
remedial constraints, is there’s just a limit on what
the courts can do in trying to remedy conditions they see. And the fourth,
discourse shaping, is about how what the Court does
changes how people generally talk about a problem. And what Carol and Jordan
do in chapter seven is they match
these repercussions one to one to several of
the other areas in which the Court has
significantly intervened in the same time period. So for backlash, they
compare the backlash in capital punishment
to abortion and the abortion litigation. For legitimating efforts,
they compare the ways in which the Court has
legitimated the capital punishment system
to the way that some of the things the Court
has done in police practices legitimate
police practices. For remedial
constraints, they talk about how there are constraints
on the Court’s just ability to remedy the problems
in capital punishment. And they compare that to some
of the remedial constraints that have affected the Supreme
Court in its voting rights work, most notably with
respect to redistricting. And then, with respect
to discourse shaping, they compare the discourse
as it got shaped in capital punishment with the move
from moral arguments to arguments of cost benefit
analysis in various ways to the way in which the marriage
equality litigation shaped our discussion of equality. In each of these, one of the
things that’s, of course, quite striking is the
centrality, in some ways, of race. And you’ll see that as I
trace out through these. But what I want to do now
is shuffle the deck a bit. Now, there are actually
16 permutations here of repercussion
and area of law. And I don’t really have the
time to grind through all 16 permutations of repercussion
and doctrinal area with you, although I did it as an
exercise in preparing my remarks to figure
out which ones are best. So let me just pick a couple
of them and talk about them. So consider for
example backlash. Jordan and Carol offer
a sophisticated account of the extent to which backlash
in the capital punishment area might be tied to the extent to
which the Court’s decisions tap into a broader set of concerns
in the case of the death penalty, the identification of
the NAACP Legal Defense Fund, not only with the
abolitionist movement but also with the
civil rights movement. In the case of
abortion, the links between the backlash to abortion
generally and a sort of anxiety about changing sex
roles and family roles. So a backlash towards women’s
issues more generally, even though of course, as
we all know, at the time the Supreme Court
decided Roe, it decided it more as a case
about autonomy and privacy, and indeed more a case
about professional judgment by doctors than a case about
women’s equality on its face. Now, at one point say right
after the 2004 election, we might have seen a
similar kind of discussion of gay rights and backlash
to the US Supreme Court’s decision in Lawrence and the
SJC’s decision in Goodridge. What’s interesting to speculate
about today, particularly in light of the fact that,
in his Sunday interview, Donald Trump declared same-sex
marriage, quote, “settled,” unquote, in the
same interview where he pledged to appoint
justices who will absolutely vote to overturn
Roe against Wade, is why these two
areas, that each involve a regulation
of sexuality, have seemingly diverged so much. Now, one thing I’ve
suggested elsewhere is that this may be in
part a function of the fact that, over the period between
Thornburgh against American College of Obstetricians
and Gynecologists, sort of a high watermark of
abortion rights at the Supreme Court, and Bowers
against Hardwick, which was decided the same
term and was really kind of a low watermark for
respect for gay people at the Supreme Court to
now, one of the things that has changed
most profoundly is that gay people have
come out of the closet, while women who’ve
terminated pregnancies have gone deeper
back into the closet. And so the ability
of the justices and the public generally
to put a human face on the issue that’s
being discussed is very different now
for those two groups. And in part, it may
also be a function of a point Carol and
Jordan make about the fact that abortion is much more
subject, as is the death penalty, to micro-regulation
on day to day repetitive ways than marriage is. That is, once you
declare marriage a right, there is going to
be some resistance. But it’s much harder to have
the kind of resistance there that you could see either to
abortion or to restrictions on capital punishment. Or consider legitimation. Carol and Jordan point out
that in the context of capital punishment, the
Court’s interventions have created a legitimating
and misleading impression that the problems that
prompted its involvement in the first place
have been tamed. They then show, with
respect to their [? pair ?] here, which is with regard to
criminal procedure rules, how what Carol aptly
denominated in her own work that Jordan contributed
nothing except being a great brother to,
inclusionary rules in– look, I have a brother who’s
a lacrosse coach. He and I are never writing
an article together. I guess it could be kind of
like the biathlon, you know? Law and lacrosse. They both begin with
L-A, and other than that, they have nothing in common. But what Carol
shows there is that what she calls the
inclusion rules leave the public with the
sense that there’s actually constraints while allowing
all of the evidence that seemingly was being
constrained to come back in. And let me just now talk
about legitimation with regard to some of the race cases. And obviously, a kind of
starting point into this is the point that
one of the things the Supreme Court is doing
in its death penalty work, I would suggest, is
by finding examples of extraordinary racism,
the Buck case, or the Foster case, or the like, and striking
down the death penalty there, the Court builds up credibility
that it is an institution that cares about race
discrimination, and that is committed to
rooting out racism that it can then draw on. Because it’s legitimated
itself there, to dismantle other
aspects of racial justice. For example, the same
justices who are– you know, I think it’s no accident
that the Chief Justice wrote Foster, and then turns around
and dissents in cases involving affirmative action and,
most strikingly in 2013 in the Supreme Court’s
decision in Shelby County against Holder,
declares that we have solved the problem of
minority disenfranchisement in states like Texas
and North Carolina. So that the pre-clearance
provisions of the Voting Rights Act are no longer a response
to a contemporary problem. The thing that the Chief
Justice’s decision in Shelby County reminds me
most of is some of you will remember an old Tom Lehrer
song that has a line about, we taught the Germans
a lesson in 1918, and they haven’t
bothered us since then. Because the minute
that the Supreme Court took the tourniquet off,
the wound spurted open again. And similarly, the Supreme
Court in that voting area has shaped the discourse of
voting around a cost benefit analysis in which
specters of fraud get weighed against actual
evidence of exclusion. And of course, it turns out
in both capital punishment and in voting rights, that
the major progress is often made not just because of
Supreme Court pronouncements, but because the
political branches create institutional structures
that change the operation of the system on the ground. Earlier in the book,
Jordan and Carol offer the example of how
California’s provision of a series of state created
protections and institutions and offices has effectively
turned the death penalty in California into
a symbolic penalty rather than an actual penalty. But so too with
respect to voting. Real enfranchisement
in the South came not from the decisions
directly of the Supreme Court, but rather came from the
fact that the Voting Rights Act sent federal examiners
to register voters in the South, more of whom
were registered in two years by federal examiners than had
been registered due to all of the litigation that
occurred from the passage of the 15th
Amendment until 1965, and came from the Voting Rights
Act’s pre-clearance provision, which forbid states from
making changes to the law. And finally, it came from
Section II of the Voting Rights Act, which imposed
a disparate impact standard that the
Supreme Court has never been willing to impose as a
matter of constitutional law. Finally, let’s think
about discourse shaping. Here’s the one
place where I think I have a bit of a quarrel with
Carol and Jordan’s account, and this difference
will take us back to the innocence
movement in a way. Carol and Jordan write
on page 246 of the book that the overwhelming flavor
of current public debates on capital punishment is
relentlessly pragmatic. And on page 247, that
almost no one today speaks primarily in the language
of dignity of human beings that Justice Brennan used
in his Furman opinion. I don’t think that’s
actually completely true. And I think their earlier
account of the innocence movement and the traction the
innocence movement has had contradicts this,
as does obviously the work of people
like my colleague Larry Marshall and the like. Now, to be sure, there
is some common cause or some coalition
here being made with the cost benefit folks. But here, as with I think
their discussion of marriage equality, I think
Carol and Jordan may be underplaying a little bit
the essential role that ideas of dignity and empathy play. As with the innocence movement,
which they note on 209, attaches names and faces to
the death penalty’s flaws, so too the marriage
equality movement used the stories of people like
Edie Windsor and April DeBoer and Jane Rouse
and Jim Obergefell to personalize the
claim of gay people to equal dignity and respect. One thing also that’s
different here, and I think this is a
really striking difference, is the role of empiricism
in the two areas. We heard a lot of discussion
earlier this morning about the Court’s decision,
and the book talks about this at some length, not
to pay attention to any of the empirics
on race discrimination and the death
penalty in McCleskey against Kemp, that Justice
Powell’s opinion ultimately just says, OK,
take it as a given, but let’s just ignore it. That’s in striking
contrast to, I think, what happened with the marriage
equality litigation, which was– the most
important moment, I think, in that entire litigation
was the decision by Chief Judge Vaughn Walker, in the Northern
District of California, to actually hold a trial
rather than deciding as a matter of law
whether California had any justification
for its marriage statute. Because forced to
come into court and actually bring in
experts and the like, the case on the other
side withered and left us with a case that
Carol and Jordan talk about in the book, which is
a kind of ridiculous sort of inverse one and a half twist
version in which the argument switched almost like
that from an argument that gay people were not
entitled to get married because they were
uniquely immoral, and marriage is a kind
of a reward for being in a moral relationship, to
an argument, which they don’t completely tease out because
they talk mostly about Dick Posner and not about the
New York Court of Appeals version of the argument, an argument that the
reason why gay people don’t need to get married is
they’re uniquely moral as compared to straight
men, who are so reckless and feckless that
if we didn’t have marriage to tie them to their children,
they couldn’t be trusted. And the moment in which you
make an argument like that is the moment at which the
argument is really over. So what’s striking
to me is the extent to which gay rights’ successes
on the national stage have involved two of the most
conservative institutions in American life. The filmmaker John Waters
famously once said, “I always thought the privilege
of being gay is that we don’t have to get
married or go into the Army.” But those are the two
rights or obligations that have admitted gay people
even as we continue to struggle in the fight over things
like public accommodations and employment discrimination. Waters’s point, which echoes
something Carol and Jordan wrote about, the innocence
movement back in 2005, reflects a concern
that litigating in areas that are especially
likely to resonate with people outside of a
movement may backfire by deflecting attention
from deeper problems and by entrenching the status
quo beyond this narrow area of agreement. But I think it’s worth
at least considering that this kind of litigation, by
sparking some forms of empathy in which the
majority puts itself into the shoes of at least
some capital defendants, and at least some gay
people, is the only way to achieve enduring
reform through constitutional litigation. Thank you very much. [APPLAUSE] SANDY LEVINSON: Well,
I’m the only person here who’s entitled to have a double
portion of pride in this book because I’m a colleague
of both Jordan, at the University of Texas Law
School, where we have taught courses together before, and in
the fall semesters when Harvard Law School has been
kind enough to have me as a member of faculty and a
very happy colleague of Carol, as well. So I could not be prouder and
happier about this absolutely splendid book. I also want to
return for a moment to the person I
described earlier today as the brooding
omnipresence over many of these discussions. That is Tony Amsterdam. Because I mentioned
that I went to Stanford in part because of Tony. I left– I’d been
teaching political science and thought that I would do
something useful with my life by becoming a cause lawyer. And Tony was obviously
the instantiation of that. And certainly, the key
experience for me at Stanford, besides working for Paul Brest,
was being Tony’s research assistant during one summer on a
cert petition on an immigration case. He is certainly the
one true legal genius I’ve ever worked closely
with, remarkable in every way. He did not admit me to his
criminal defense seminar because I think he recognized,
perhaps better than I, that I didn’t have the
fortitude to be a cause lawyer. I did write one amicus brief
in a death penalty case for William Boyd Tucker,
which was unsuccessful. I taught press and
responsibility, and the brief focused on
professional responsibility problems of the prosecutor. It failed. And I certainly felt a twinge
when I read in The New York Times that William Boyd
Tucker had been executed, I think by the state of Georgia. I actually really
can’t imagine what Steve Bright, who is
another hero of mine, must go through
regularly, and what the people who really did take
the criminal defense seminar and have tried to emulate
Tony would go through. But that’s not the only thing
I want to bring up with Tony. Because he made his reputation
in the 1960s not only as a genius through his student
note, the void for vagueness doctrines to be
in court, but also basically inventing
or developing the removal doctrine. Get everything
into federal court, because federal courts would
be solicitous of reform sort of claims. I think it was 1978–
it might have been 1979, really doesn’t matter. It was after he moved to NYU. He gave a talk in New
York that was actually covered by The New York
Times in which he said, keep your cases out
of federal court. Litigate on state
constitutional grounds. Indeed, I had an academic
fantasy experience where a case that began in
the Princeton Traffic Court ended up in the
US Supreme Court. And I asked Tony to sponsor me
for membership in the Supreme Court Bar in 1980. He sent a very
nice note saying he had to do so because it was the
only motion he was confident that he could win before
the US Supreme Court. And this is 1980. And quite frankly, I’m
not sure that things have gotten that much better. One might be able to
cite certain victories, like Obergefell. But it obviously
took quite a while. And it also raises
other broader issues. Except for the
amicus brief, I’ve had no contact, really, with
death penalty litigation. There’s no good reason for me
to be part of this conference, other than the kindness of
Carol and Jordan inviting me. But one of my other mentors
was Robert McCloskey. And I have tried to keep his
book on the American Supreme Court alive. And McCloskey takes the
more long [INAUDIBLE] view of the US Supreme Court. It was interesting that
all the comparative cases that Pam mentioned are
really very recent. They don’t take note of the
entire 225 year history or so of the Supreme Court. I am famous and notorious
for not teaching Marbury v. Madison, which I
regard as a waste of time, given other cases
that one could teach if one takes the time that
Marbury takes to teach well. And those cases for me
include slavery cases, include in particular
Prigg v. Pennsylvania. And it does seem to
me very important to realize that the United
States Supreme Court, for most of its history, has not
been hospitable to anything that could be called
progressive reform. And the slavery cases
make this clearest. And one reason,
very frankly, it is important to be aware of
Prigg as well as Dred Scott is that Prigg was written
by Joseph Story, who is a hero of the
Harvard Law School. And it develops
the argument– he says there is no single
theory of interpretation that justifies upholding the
Fugitive Slave Law and self-help repossession of slaves, which
is another important holding of the case. But basically, as part of the
deal that was made in 1787, and it’s necessary
to save the union. And it really captures very
strongly a pragmatic emphasis that may even be correct. That is, after all, if you
think the Constitution of 1787 was worth it, with the two
Great Compromises, first of the Senate and equal
voting power in the Senate, which continues to plague
us today, and then of course far more seriously
as a moral wrong, the original sin
of slavery, then why isn’t it also
worth it to recognize the implications of the
deal in later decisions and try to maintain the union? One can also look, of course, at
the post-Reconstruction cases, which are nothing
to write home about. It’s not only
Plessy v. Ferguson, it’s obviously the
Slaughterhouse cases, the so-called
civil rights cases, and other cases that basically
got the 14th Amendment with regard to it serving as
a basis for serious regime change with regard to race. Rick Pildes has written
a marvelous piece on Giles v. Harris, in which
the Supreme Court perhaps understandably says,
look, if we’re really to monitor voting
suppression in Alabama, we would have to send
the troops back in. The courts, in fact, do
have limited resources. And we just can’t
meet this problem. Even Bailey v. Alabama–
and this actually refers a bit to the earlier panel
on the Court’s candor or lack of candor about
race, whether it’s in capital punishment, criminal
punishment more generally, or other areas–
Bailey v. Alabama, which does say the convict
leasing system in Alabama is unconstitutional,
goes out of its way to maintain that it’s
not a case about race, that it might have arisen
in New York or Idaho. And they’d come to
the same conclusion, which is just batty in
terms of the social reality of that case. But it does illustrate
the difficulty that the Court has always had in
talking about the implications of the original sin. And one can also talk in this
context of the maintenance, the rigorous maintenance,
and for reasons that I still don’t
fully understand, it was Justice
Brennan who insisted on maintaining the emphasis
on intentional discrimination in Keys– which is
one of the cases that I was working
with Tony on– rather than accepting Lewis
Powell’s deal basically to accept disparate
impact in return, of course, for
getting rid of busing. So we ended up with
the worst of worlds with regard to school
segregation litigation. That is, you still
have to prove intent. You still have to
find the smoking gun instead of simply talk
about the actual impact and the actual reality. So that in many
places in the country today, segregation
is just as serious a problem as it was at the time
of Brown v. Board of Education. One could talk about Washington
versus Davis or Jefferson versus Hackney where,
again, the Court emphasizes it’s going to look
for intent because it doesn’t want to get into
what would undoubtedly be a Pandora’s box. If one really and truly took
disparate impact seriously and linked it with the
original sin of slavery, in McCleskey versus
Kemp, the Court couldn’t have been
clearer about it unless you accept the notion
that death is different. So we’re going to abolish
capital punishment simply by saying death is so remarkably
different, we’re going to create a special law for it. It’d be like Bush versus Gore. It won’t have implications
beyond the death penalty because if McCleskey versus
Kemp did have implications beyond the death penalty,
then, as Lewis Powell was smart enough to recognize,
it calls into question all of American
criminal justice, and all of the
disparities that can be found throughout
American criminal justice. In which, frankly
and bluntly, in terms of a utilitarian analysis,
capital punishment might be the least of it. It is the people in Ferguson,
and the people elsewhere who face jail sentences
because they can’t pay fines for driving without a license. Or all of the people
who are arrested for driving while black courtesy
the United States Supreme Court in a series of
Fourth Amendment decisions, including a Fourth
Amendment decision just this past year that,
I regret to say, was joined by Justice Breyer. And frankly, I don’t
understand why. That basically, it furthered the
amount of power held by police and really refused to
look at the context of American
police-civilian relations, particularly with regard
to criminal justice. So this makes me quite
obviously depressed with regard to thinking of
constitutional litigation as a very promising
area of reform in certain fundamental
areas of American life. Especially– and here, I
couldn’t agree with Pam more that, in terms
of distinguishing between the relative
success, though it took 30 years and
the Supreme Court certainly never led the way. [INAUDIBLE] was basically
mop up operation more than it is a courageous
exercise in leadership. But I think it is very clear
that one of the things that helps to explain that is that
even Lewis Powell, who famously or infamously told
his gay clerk, his non-out gay clerk, that
he had never met a gay person, nobody, nobody can
say that today. And there are human faces,
not like the human faces who were shown to us earlier. That is, people who were
caught up in the Texas criminal justice system. And we can certainly
sympathize with them, maybe even empathize with them. But quite frankly, there
is no practical likelihood that they’re going to be
part of our social circle. And that is not the
case, obviously, with regard to the issues
raised by Obergefell. But if one wants to talk about
fundamental sorts of change in America, I think
it is basically naive to look at courts as a source
of much significant change. This is not to say
that I’m hopeless, that I think marginal
victories could be won. And I think that the
abolition of the death penalty would be a very good thing. But what I do fear is
that it could end up serving, as several people
have already averted to earlier today, as legitimizing
a notion that this is a great leap forward
for social justice, rather than treating a
relatively small part of the American
criminal justice system, or the American
society beyond that. And I do think the
legitimation issue is extraordinarily important. And although I adore
Bob Cover as much as I suspect most people
or anybody in this room, I don’t think his insight
was completely original. Murray Edelman, a political
scientist in the 1960s, wrote a wonderful book called
The Symbolic Uses of Politics, the central thesis of which
is that a lot of politics is position taking, even
legislation passing, designed to make the constituents,
editorial writers, and the like feel good
about progress being made. But if you are a
professional politician, you know that the really
important issue, especially in the age of the
administrative state, which is the state we live in, is
who staffs the agencies, who are the career civil
servants, to what extent will they in fact enforce
this splendid legislation? How much will the
legislation be caught up in endless notice and
comment and other ways of delaying rules forever? And then, before
Murray Edelman, there was actually Karl Marx in
the German ideology, who suggested that one role of
lawyers was to gild the lily, and to offer an ideological
justification of basically what the ruling class is doing. I’ve not used language like
this for a number of years. But the events certainly of
the last week, my wife and I marched for the first time
kind of inadvertently. We were in New York and
found the march with regard to protesting the election. It may be time to dust
off some of the things we were reading and
talking and arguing about 40 or 50
years ago in terms of discussing the way a legal
system works in the language. I think it was Bernard
Harcourt, or Steve Wright, who talked about creating
facades that will allow Supreme Court judges and others
to give Law Day speeches on the splendors of the
American legal system rather than talk about
some of the very, very unhappy realities of the
American legal system. I wish I could leave you
happier at the end of the day. [APPLAUSE] LARRY TRIBE: We’ll
now hear from Mark Tushnet, a colleague of mine,
and a birthday boy today. Oh, to be 71 again. MARK TUSHNET: Thank you. So the topic for this panel is
capital litigation and other highly contested issues. And it’s connected to
the seventh chapter of the book which Pam Karlan
has already referred to on recurring patterns. And I’m going to
talk about recurring patterns in two divisions. The first is– I’m
going to inaccurately label it the popular level. And the second is
the elite level. Now, when I say popular
level, actually that’s a little misleading. This is that I actually
have in my mind two versions of accounts
of the connection between constitutional
law and something associated with the people. One account connects
constitutional law to political coalitions that are
sustained over a sufficiently long period. This is an account that,
in political science, probably originates– at least
is most famously associated with– Robert Dahl. And it is an account
that underlies the book by Robert McCloskey
that Sandy continually updates. The notion here is that if a
political coalition sustains itself in power over a
sufficiently extended period, then you will be
pretty sure to see constitutional law
developing in a way consistent with the political
and ideological interests of that coalition. And the mechanism here is
pretty straightforward. The coalition’s in
power for long enough. It gets to make enough
appointments to the Supreme Court, and to the lower federal
courts, that its vision is able to– the coalition is
able to implement its vision. And I should say,
it’s reasonably clear that the gloom part
of today’s discussions is associated, at least
in part, with that account of the connection between
constitutional law and, broadly speaking, politics. We know that to-be
president Trump will have one nomination to
make to the Supreme Court and may have more. And then, the
mechanism will kick in. Again, there’s a footnote about
whether the coalition will be in power for a
long enough period to be able actually to
implement– for the mechanism to have its effects. But I actually don’t want
to talk any more about that because I want to talk about
the other component, which is the connection between
what, in the literature, are talked about
as social movements and constitutional law. And here, there’s a
large scholarship, body of scholarship over the
past decades about things like the civil rights
movement and its effect on constitutional law,
women’s rights movement and its effect on
constitutional law, gay rights movement and its effect
on constitutional law. And one point to make
here is that although part of the story about how
these movements affect constitutional law is connected
to the appointment mechanism, that’s only part of the story. Both with respect to women’s
rights and gay rights, it’s really hard
to tell the story as a story about
how appointments were the mechanism by
which the movement affected constitutional law. So what I want to raise
here is a question about whether the anti-death
penalty movement is part of the domain of the
account of social movements and constitutional law. And there are a
couple of reasons to think that it might be. But in the end, I
think probably not. And that’s where I want
to go with this part of the discussion. One of the reasons that it
might be part of the domain is if you look at what the
topics are, civil rights and so on, it’s the
significance of the issue as a matter of social policy
again, over a reasonably sustained period. And it looks like
the death penalty has that kind of significance. And then, the other
thing is, what I’ve already mentioned,
sustained attention to the issue. And that’s clearly true. One reason why attention
can be sustained, and this is a connection to
the notion of social movements, is that you need some
sort of organization that will be able to
support the sustained attention and litigation
and the like over time. Now, these organizations in
the again social movement literature would be associated
with the social movements, as Sandy has invoked Karl Marx,
or invoked the descendants. You might call these organic
associations using language from Antonio Gramsci. These are associations
that are somehow just connected to a social
movement and grow out of them. But I just want to note, we
know from other developments that the organizations that
sustain attention to an issue might not really be associated
with something fairly described as a social movement. Here, the clearest example
is conservative activism that’s been
reasonably successful across a range of areas,
like limitations on access to justice, and
the transformation of the First Amendment in
favor of corporate speech. There, you do have
organized actors behind it. But they’re not connected
to a mobilized public of the sort that’s associated
with the literature on social movements. Now, how does– so yes,
significant social issues, yes, sustained attention with
some degree of organization behind it. But why not link the
anti-death penalty movement to the literature
on social movements in constitutional law? Well, I think primarily
because supporters of abolition are organized. But they’re not well described
as a social movement. This is a very crude account
suitable for this occasion, but not for any more
sustained effort. Roughly speaking,
social movements are composed in large
measure of people who would be directly benefited
by the success of the movement. Although the word “direct”
here would need some unpacking. So the Black Lives
Matter movement is a social movement
in this sense. The people who
participate in it, a large segment of the
people who participate in it, would benefit from a
successful transformation of policing and the like. That’s not true of the
anti-death penalty movement. The people who are active in
it have a moral commitment. And they would
be, in some sense, directly affected
in that– I don’t know what the right word would
be– the connection they see between themselves and living
in a morally acceptable society would be reinforced
were they to succeed. But that’s rather
different from what you would think about the
success of the Black Lives Matter movement. So in the end,
although I think there is something to say about
connecting the death penalty abolition movement to the
literature on social movements and constitutional
law, it’s probably not a strong connection. But I now want to turn to the
second part of my comments. There are also mechanisms of
constitutional transformation that occur through elites. Here, the urtext for me is the
work associated with Franklin Zimring, and I think it’s in a
book with Gordon Hawkins, which makes the point by
examining death penalty abolition around the world. They argue that death penalty
abolition around the world always occurs at the instance
of an elite in situations where there is
popular opposition. Or popular– at the very least,
substantial popular support for death penalty. And the death
penalty nonetheless gets abolished at the
instance of various elites. Sometimes, they’re legislative
elites, not necessarily judicial elites. But elites are the
ones in charge. So I want to talk a little
bit about what the elite route to abolition might be. There’s a first
note here, which is relevant to the outcomes of the
referenda last week which is, because we’re talking
about elite-led decision making, the referenda that
uphold the death penalty or re-institute it, or however
you want to characterize it, those are not relevant to
this part of the discussion. Except in a very
indirect kind of way, which I may mention later on. So just focus on
elite decision making. Here, I think, there are
advocates of abolition that have to think about
two levels of persuasion. The first is a
level of persuasion, I call it, on the policy merits. The second is a
level of persuasion about the constitutional merits. And I have a couple of
subdivisions of the policy merits point that I’ll make. But I want to
assert– I don’t have any survey evidence
of the relevant sort to support this, just
a sense of things. I just want to assert that on
the elite level, the argument about the policy merits or
demerits of the death penalty, has basically prevailed. That is, elites in the
country are not committed, as a matter of
party– don’t believe that, as a matter of
sound social policy, the nation ought to
have the death penalty. I think that’s probably right. But in any event, I want
to assert it, and then move onto that. For elites to act on that
view of policy merits, there are a couple of additional
things that are useful. One is that they have to think
that acting on the belief that the death penalty
is not good policy is politically defensible. And here, things
like commutations, mass commutations,
individual commutations, legislative abolition,
that’s relevant– not as part of the check
box, oh, the people are against the death penalty. But rather, you can
get away with it. Your political careers
won’t be ended by it. The innocence
movement is also, I think, part of that,
providing political defense for elites who, in some sense,
want to get away with it. The second thing is
that the existence of constitutional questions
also provides a defense. Not that elites are saying,
well, it is unconstitutional. It’s just that there are lots of
reasons to be nervous about it on the constitutional level. And it provides some cover. You might think of this as
popular departmentalism, not in any formal way
where governors say, I think the Constitution
makes it unconstitutional. And so, I’m going to
commute a death sentence. Then, the final
point, the next level is elite persuasion about
the constitutional merits of abolition. And here, what we’ve
talked about already today is that the challenge, the
constitutional challenge, is coming from many
directions– the innocence issue, the Five Counties
study, the questions of delay. I do want to note that
the humanization point is for me more ambiguous than it
is– humanization of capital defendants is more
ambiguous, mostly my only connection with
a death penalty case is indirectly
through my wife who, at one point very
near his execution, had some collateral connection
to Joe [? Giordano ?], and met him, and described
him as a very scary person. And some subset of the
people who are being executed are scary people. And you can’t– some can’t be
fully humanized in the way that the humanization
account suggests. But the most important
component, I think, is regulatory failure,
which is, I think, the basic story of the book. Now, the elites
say, OK, we don’t like this on a policy level. Was it unconstitutional? We’ve tried to regulate it. Regulation has failed. What can we do now? Now, one response to regulatory
failure is to deregulate. But that’s not really
available if you think that it’s an unsound policy. So there’s a line
that I have adopted from Chuck Siebel, which
is, if you have a problem, something has to be
done, but nothing we’ve done worked,
what’s left is abolition, with a caveat that
you have to work out abolition in a way
that doesn’t allow for replacement in the way that
Gregg allowed for replacement. There are ways of
doing that, I think. Although, the
accumulation the small, the various lines of attack
in itself wouldn’t do that. You’d have to add something
more like, and not an irrelevant term for what I’m going to
say in a moment, not something like a deep account
of human dignity. And that’s what I
want to finish on. And this is about
the prospect of what was referred to in the
last panel as a Furman II. And here, the
primary thing to note is that the Supreme
Court is a– have it in my notes as a
small n institution. There are just nine–
eight, nine– people on it. They’re individuals. Individuals, not theory,
dominate decision making. And what that means, and
this is where I will end, is at the moment,
and for a while, a couple of years,
the account will have to be about Anthony Kennedy. And there, I think what we
know about Anthony Kennedy, is that he is very
attuned to, attentive to, his reputation
among elites and how he will be seen historically. And if the arc of history is
long but bends towards justice, he knows where the end, the
historical endpoint, will be, which is abolition. And so just as he didn’t
want to be the– this is overstating him. He didn’t want to be the person
who said gay marriage is not constitutionally required,
when he knew that, in 10 years, it was going to be widespread
around the country. So he might well
think, I don’t want to be the person who writes the
opinion saying death penalty is absolutely fine. And last observation, this
is that real inside baseball kind of observation. But I think that it’s unlikely
that Justice Breyer would have reopened the fundamental
issue unless he had some sense that there was
a serious prospect of getting Justice Kennedy’s vote in
the relatively near future. And again, I just want
to note, if that’s true, it doesn’t matter
who’s appointed to fill Justice Scalia’s seat. OK, thank you. [APPLAUSE] LARRY TRIBE: I’d like
to say a couple of words before opening it
up to discussion. And I was thinking of talking
about human dignity anyway. I think there is a
pessimism in Sandy’s work– I was up to it, of course–
that I don’t quite share. When he says, for example,
that courts are not likely to play an
important role in reform, I remind him of the
gay rights movement in which probably
but for Goodridge, most people would continue to
think, as Lewis Powell did, that they hadn’t
seen gay couples. The idea that the sky didn’t
fall when same sex marriage was legitimated by the highest
court in Massachusetts made a big difference. And I very much agree with
Pam Karlan that, as gay people came out of the closet, that
generated a degree of empathy and of understanding. People understood that their
brothers, their sisters, their close relatives,
many of them were gay. I think that the appealed
to the element of empathy and of human dignity,
and I’ve written a lot about Justice
Kennedy’s centrality to that, in the way that he
sees liberty and equality not as values at war, but as part
of a kind of double helix wound around an axis of dignity,
helps explain a great deal. And I think there is an
interesting tension in two of the things that Mark said. On the one hand, he said that
judicial appointments probably are not likely to account for
anything terribly important. And on the other hand,
and I agree with him here, it is the role of
Anthony Kennedy and the anticipation
by Steve Breyer that Tony Kennedy might
be a fifth vote, that makes a lot of difference as
to what will happen with death penalty jurisprudence. I don’t agree, by the way,
that it doesn’t matter who is put on the court by Trump. Because the Notorious RBG is
not the immortal Ruth Bader Ginsburg. And Trump is likely to
be around for a while. It seems to me, just thinking
of Kennedy for a moment, and thinking of the
role of contingency, he made a huge difference to a
very important concretization of a social movement into a
political and cultural reality. Back in ’86, when I testified
against Robert Bork, I was certainly driven in part
by his extremely transparent anti-gay attitude as expressed
in a number of his opinions on the DC circuit. And I had friends who
knew Anthony Kennedy and who said that Kennedy
would be, in the long run, very sympathetic to
equality and dignity, not withstanding sexual orientation. So when I argued
Bowers and lost, I believed then that, if the
right person replaced Powell, it would only be a matter
of a couple of decades before gay equality was
the law of the land. So I testified for Kennedy. And the rest evolved. Kennedy clearly made
a huge difference. That judicial appointment
made a huge difference. Courts made a huge difference. Now, the history is very
different with respect to the various topics
we’ve talked about. And I think the reason, and
I see this in what Pam said, has a lot to do with the
ease of evoking empathy. I think that Mark
is right that it’s a lot harder to evoke
empathy for what look to a lot of people like
monstrous, cold blooded killers than it is to evoke empathy
either for women who are struggling with
an unwanted pregnancy or for gay or trans people. It seems to me that the
ease of evoking empathy, and of therefore
crossing political lines, makes a huge difference. I also think even in abortion,
it made a big difference. Not only– and I’m now
talking not only about empathy for the woman, but I think there
is an important reality in that as science developed
and sonograms made it easier for more
and more people, including pregnant women, to
visualize the unborn, it became harder to argue
that this choice involves only one set of human
values and human interests. In any case, I think
empathy is the strand that runs through it all. And what I find most
dismaying and distressing, going beyond the level
of legal doctrine or possible judicial
appointments, about what happened
on November 8th is my sense that
it was a failure of empathy on both sides
that put us in this crisis. A lot of people who think
of themselves as liberals and progressives had a
really hard time empathizing with rural America, with whites
in places where manufacturing had been devastated,
and therefore didn’t appeal directly enough,
with policies or with rhetoric, to that group. But what really scares me
is the absolute absence of empathy on the part of
those who support Trump. When he made fun of the
disabled, when he dissed women, when he clearly expressed
a kind of savage attitude toward other human beings. I fooled myself
into thinking, this is not a country
in which someone who shows that little
empathy could possibly be elected president. And I was obviously
wrong, as were, I think, many of the people who assumed
that it would transcend issues of policy, who would
bring various ravaged economic areas back,
that somehow, we were too good a country
to do what we did. And it’s the dismaying
lesson that that wasn’t true that
strikes me as kind of deeply troubling on the
level of what any of us can do politically or legally. But I want now to see if anyone
has any comments about that, or if the people
who are listening want to weigh in on what either
Pam, or Sandy, or Mark said. Jordan? JORDAN STEIKER: I
want to weigh in on the empathy, human
dignity discussion. And the thing that I’m
most persuaded about, and this is where I think
I disagree with Pam, is that I really do believe that
there’s a way in which empathy and human dignity may be
linked, but not in a way that human dignity
will become central in the death penalty debate. It’s true that I think there
is a much greater likelihood of gaining support
in the Supreme Court and in the world
of public opinion if you can have
an attractive face of the sort of social issue. I don’t think that wrongfully
convicted people reflect an issue of human dignity. I don’t think– you have to
have a very thin conception of human dignity to say that
we shouldn’t execute people who are actually innocent. The human dignity argument
in the death penalty is that, for people
who are guilty, that there should be some
empathy or concern that would justify sparing them
from the ultimate punishment. And I think that that
argument has virtually completely dropped out of
public discourse in part because of the way in which the
Supreme Court framed the issue of the death penalty. Partly because of
the strategic choices that were made
early on, as well. And so I do think that when
the death penalty is abolished, it’s not because there
is any powerful portrait of the condemned that
people resonate with. It’s going to be abolished
because of things external to the condemned. And I think that it’s sort of
a sad and poignant commentary on our Constitution,
and our discourse, and our political
and social history that that’s how the
death penalty is going to expire in the United
States, when it’s so different from the way in
which other cultures conceive of the death penalty issue. PAM KARLAN: Let me just give me
a very brief response to that, which is I think there’s
a distinction between what motivates and what the
explanations are, the reasons and the justifications. And I think without
some level of empathy, it’s very hard to care about
the reasons that are then going to drive the court. Which is, I think, it’s not
as if in the actual decisions in cases like
Windsor or Obergefell the Court is talking about,
I feel for these people because they’re just like me. I mean, in a weird
way, that never gets discussed by the Court, right? But underlying it is, I
can see some level of– and I can feel something. And I think that’s why it
turned out that, I think, there is such a difference in
the discussion of innocence in the 2005 piece versus now. You were very worried
that what would happen is there would be this huge
wedge in which the innocence movement would lead people to
say, well, as long as they’re innocent, I’m with them. But otherwise, the guilty
don’t have to worry about that. It turned out that that
isn’t– and you make the point in the book– that
isn’t what happened. Because it led people
from a starting place that was an empathetic
starting place into a broader understanding. And so I agree
with you entirely. The Supreme Court is
not going to write an opinion that is mostly
about the dignity of man. But without some ability
to get the justices to care about the people
involved, it’s very hard to get them to care
about anything else. I’ll just say one thing
that takes me back to Larry and Bowers against
Hardwick, which is I was in the courtroom for Bowers. And then, I was in the courtroom
for Windsor and for Obergefell and for Lawrence,
for that matter. And I remember at the
arguments in Lawrence, after the argument,
I was standing around with Walter Dellinger. And Linda Greenhouse came over. And Walter said,
what did you think was the most interesting
thing about the argument? And Linda, without
missing a beat, said the bar section
of the Supreme Court. What she meant by
that was, huge numbers of lesbian, gay, and
bisexual clerks had come out. And when the justices came
out from behind the bench, you could see Justice O’Connor
going– [RAISES EYEBROWS]. And I said, yeah, Walter,
when she got to you, the eyebrows went way up. And he’ll say, no, no. But in that move
from the– nothing would be better for
the death penalty than to have one of the
justice’s children wrongly accused of murder. LARRY TRIBE: Or law clerks. PAM KARLAN: That’s true, too. MARK TUSHNET: I see a John
Grisham novel developing here. PAM KARLAN: Yeah, in
which Steve Bright frames a Supreme Court law clerk
just to build that empathy. LARRY TRIBE: Of course, the
one problem in the death area is that a lot of people
empathize so much with the victim they
don’t see the human being on the other side. I mean, that grotesque dissent
by Thomas talking about, why should I empathize
with somebody being stuck in a small cell for
years awaiting his death when the victim is stuck
in a smaller coffin, having already been brutalized? I mean, that sort of empathy
at least cuts both ways. PAM KARLAN: Absolutely. AUDIENCE: I just want
to say that you have to constantly disaggregate. Empathy in this area is alive
and well in black America. And so to talk about
a lack of empathy, you have to also do
a racial calculus. LARRY TRIBE: Is
opposition to the death penalty and the
abolition movement stronger in black
America, as well? Is there in fact
empirical evidence that black America is more
anti-capital punishment? AUDIENCE: Oh, of course. LARRY TRIBE: Oh, I’m sorry. I just didn’t happen to know. AUDIENCE: Yeah,
the answer is yes. AUDIENCE: One
other quick thing– LARRY TRIBE: Oh, of course
for the obvious reason that they know that black
lives are not valued as much. And that people who are black
are more likely to be executed. Is that more empathy,
or is it more–? Yeah. That’s part of it. AUDIENCE: Well, one
other innocent phase is that the justices
now know that there are a series of people
that they denied relief to in death penalty cases who have
been since exonerated by DNA. And Justice Breyer mentions
a couple of them in Glossip. And so that’s– they have
something to be haunted by. And that’s new to them. PAM KARLAN: And you
guys make the point in the book about Justice Scalia
using somebody who was later exonerated as the
poster child for why we shouldn’t care about
procedural protections for people on death row. AUDIENCE: [INAUDIBLE]
a peaceful death as compared to this
terrible crime of raping this [INAUDIBLE] girl. And it turns out that
[INAUDIBLE] thrown out later because [INAUDIBLE] exonerated. PAM KARLAN: And I
couldn’t help thinking, when people were discussing
on the earlier panel– sorry I didn’t get into town
and the Scottsboro Boys thing that you all went to see–
the fact that we have a president who has
continued to argue that five innocent black and Latino
teenagers should have been executed for a crime that we all
now know, except for apparently our president to be,
didn’t commit the crime. AUDIENCE: Well, the
prosecutors in that case, too. PAM KARLAN: Yeah. Well, but everybody else knows. SANDY LEVINSON: It does
seem to me, though, that we need to
return to a topic that came up earlier today, which
is the Tsarnaev death sentence. And Donald rallies
emphasis that whatever Eric Holder’s opposition
to the death penalty is, which I have to
assume is sincere, it was irrelevant with
regard to Tsarnaev. And so I think with the death
penalty, unlike a very few– I hope there are only a very
few– fanatical opponents of non-heterosexuals,
the retributive aspect. But retribution obviously
is one of the central bases for all punishment,
especially capital punishment. And so you get into the
discussions of mass murderers, or the commandant at
Buchenwald, or whatever, and what it would mean to
treat them with dignity, or to have empathy. Or do you simply
say, well, if we had a perfect system
of capital punishment, they would certainly deserve it. But since we don’t, we’re
willing to pay the cost that they’re not executed
because you’re afraid there will be mistakes otherwise. It also seems to me, apropos
of the Obama administration, and I haven’t worked
this out carefully, but the debate over
drone strikes, I think, is relevant to this. That is, the president
has claimed the power, and let’s assume it’s statutory,
not unilateral executive power, to execute without the
semblance of due process. Except that there are arguments
in the executive branch, even American citizens. Now, the argument
is forward looking. It’s utilitarian. It’s not a retributive argument. But of course, if you believe
in capital punishment, then there is the
utilitarian argument that capital
punishment will deter other people from doing this. I suspect that most
people in this room don’t accept that–
either don’t accept that argument because they
don’t think the data support it, or because we adopt
one or another variety of deontological argument
rooted in dignity, or whatever. But it does seem to me
that the issues raised by torture, or by drone strikes,
have some family resemblance to the debate with regard
to capital punishment and generate the same, you
know, [INAUDIBLE] referred to it as intellectual cramps
because, with regard to the torture debate, the
classic counter is always the ticking time bomb that
will wipe away Chicago. And do you really
oppose torture in that– a certain sense,
a structural equivalent, do you really oppose capital
punishment in the case of fill in the blank? And I don’t think
the Supreme Court– their individually crafted
cases– I don’t think they let any mass murderers go free. MARK TUSHNET: I just
want to say something. This is weirdly framed. On behalf of
Dzhokhar Tsarnaev, he got the death penalty
because the police had killed his brother. His brother was–
this was a kid who was being led around
by a brother who he had idolized for his whole life. They had difficult
lives, and so on. So even, I want to say– now,
whether the government properly preferred, brought the
death charge against him is one thing. A jury, you know, there’s a
case to be made for Tsarnaev in front of a jury. And it was made. I mean, he had very
good representation. So I guess, at some
level, that indicates the limitations of empathy under
those kinds of circumstances. But in my mind, he’s
not Joe [? Giardano ?]. I don’t know Joe [? Giordano ?]. Maybe something could have
been said on his behalf. My wife called him scary. LARRY TRIBE: Other questions
from the audience or comments? AUDIENCE: I had one. LARRY TRIBE: I’m sorry. Yeah? AUDIENCE: I wanted to go
back to Jordan’s comment and the theme of the panel in
terms of empathy of capital defendants more
largely, and just say that I think that
there is empathy, and it’s all in
the framing of it. So you may or may not have
this actual innocence argument. Nobody wants to execute
someone who’s innocent. But you’ve also got
these, well, you’ve got empathy in the
sense of nobody who’s on trial for their
life should have a lawyer that falls asleep. And until we’re ready to
provide decent, minimally qualified capital defense
to all of these people, we shouldn’t have one. And we’re not ready to do that. And I think, even if you
agree with the death penalty, nobody thinks– I don’t
think, except for maybe I should question that in
the wake of the election– but nobody thinks that you don’t
get the death penalty depending upon the color of your skin
or your economic status. You know, so I feel
like you’re right, Mark, you’re not going to get
the same level of empathy that you have with
other social movements. But I think there’s still core
issues endemic to the death penalty that allow
for a lot of empathy for these folks,
even the guilty ones. SANDY LEVINSON: [INAUDIBLE], how
much does that argument either depend on death is
different, or do you want to confine it
to death is different? Because Pam and I were
talking about this earlier. I think those– first of all,
I don’t teach criminal law. So these are comments
of a rank amateur. But for me, the most
scandalous feature of the American criminal justice
system is plea bargaining. And I’m one of
those few people who read the second part of
Sibelius as actually providing for a high doctrinal trying
to attack on plea bargaining as coercive, that I
do not in fact predict would be successful
with the Court, but I think it’s a
legitimate inference. But if you talked to people,
if you explained to people how plea bargaining works, I would
hope they would be scandalized. But there’s certainly
no movement, really, to provide people
even kind of the basic constitutional rights. I mean, again a classic
article in political science with regard to the
criminal justice system– and this is unfair
to public defenders– but it’s the public
defender as kind of the agent of the
prosecutor to encourage the clients to make deals. And there is certainly
a reality to that. But are we prepared
to get into that, or are the
abolitionist arguments carefully tailored to
be limited to abolition of capital punishment? AUDIENCE: I think it is a
death is different argument. And I’d love to see– I mean,
this goes back to McCleskey, I think. There was somebody saying,
like, well, they weren’t going to bring down the whole
criminal justice system, so they had to deny the claim. I think it would have
OK to say, at least when your life is at stake, you know,
I’d like to see go a little rather than not go there at all. And I think death is different. Although, that’s
not to say I don’t care about the atrocities that
are everywhere else, as well. But I think you can take
a little without having to bring the whole house down. PAM KARLAN: This also goes back
to the previous panel, and one of the things that I had been
thinking about, and thinking about what the panel on
criminal justice more generally was going
to talk about. There are some very
unlikely coalitions on the Supreme Court on other
criminal justice issues. The most obvious
one, of course, was the confrontation
laws, where it was the ends against the middle. But I think you also saw
this like in the Yates case, the [INAUDIBLE] throwback case. Justice Kagan has a
really interesting dissent that said, look, the real
problem here, and let’s be candid, is massive
over-criminalization. That is, plea bargaining
would be very different if the discounts weren’t
so savagely coercive. That is, if you faced two
years rather than one year, it wouldn’t be the
same as, well, it’s life or probation, at
which point, of course, everybody’s going
to plead guilty, whether they have a
good defense or not. And I wonder whether
that’s an issue that we may see coming up again and again. AUDIENCE: Is that the
penalty for going to trial? PAM KARLAN: Yeah,
that’s part of it. LARRY TRIBE: You know, the court
in the late ’60s in the Jackson case said that even if
the person is making an intelligent,
uncoerced decision, you have to have a compelling
justification for creating incentives to waive your
right to go to trial, and to waive your
right to a jury. And the combination
of Jackson and Brady was, you don’t have
to prove coercion. And in fact, a guilty
plea could be non-coerced. And yet, the system
of which it was a part might be unconstitutional. And I think– hm? AUDIENCE: Not followed. LARRY TRIBE: Jackson
has not been followed? AUDIENCE: That principle. LARRY TRIBE: No,
yes, it has been. I beg to differ. I think that even
the Roberts opinion in Agency for
International Development said that a condition can be
unconstitutional without being coercive. It hasn’t been followed in
the criminal justice field, but there is a strand
of jurisprudence that I think will, in the long
run– and by the long run, I mean long after
I’m here– support a re-examination of what
Kennedy began when he said, plea bargaining is an
alternative system of justice. And we at least have to assure
good legal representation in plea bargaining. Now, given that the
Court’s standard for adequate representation
is so pathetically low, that it is only just a seed
that has to grow into something. But I think it’s
an important seed. Should we wind it up, Carol? CAROL STEIKER: Yeah, I
think maybe we should. If I could just close
us this evening, I just want to thank
all of the panelists throughout the day for their
extraordinary contributions, and especially Mark Tushnet for
contributing on his birthday. I didn’t know that. But I would have exempted you. I want to invite
everyone who’s here, there will be a drinks and hors
d’oeuvre reception just two doors down, in the equivalent
of this room that’s labeled A. We’re in C.
So just walk down to A. There will be drinks
and hors d’oeuvres. And Jordan and I will be happy
to sign books for anyone who’d like to do that. So thank you all, and we hope
to see you down the hall. [APPLAUSE]

One Comment


    why are people suffering in chronic pain allowed to suffer cruel and unusual punishment by being denied medication that relives their suffering? No one defends their rights;@t​

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