Supreme Court Could Soon Ban the Death Penalty, Scalia Says

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By Casey C. Sullivan, Esq. on October 28, 2015 10:51 AM

The death penalty's days are numbered, at least if you trust Justice Scalia's predictions. Speaking at the University of Minnesota Law School, the justice said it "wouldn't surprise" him if the High Court declared capital punishment unconstitutional in the near future.

His statement drew applause, CBS Minnesota reports, but Justice Scalia is no opponent of capital punishment. He has repeatedly condemned attempts to make executions more difficult through "labyrinthine restrictions" -- a sort of "abolition by a million cuts" approach. If the Court's attitudes are changing as quickly as Justice Scalia indicates, that incremental strategy might not be necessary.

It Wouldn't Be Entirely Unheard Of ...

Last June, in Glossip v. Gross, Justice Scalia condemned the limits on the death penalty imposed Supreme Court decisions. He reiterated that critique in Minnesota, saying that the Court had made it "practically impossible to impose it but we have not formally held it to be unconstitutional." Thirty-five people were executed in 2014, down from the modern high of 98 in, yes, 1998, but much more than the dozen or so annual executions before the 1990's.

While the Supreme Court has never ruled that the death penalty violates the Eighth Amendment's prohibition on cruel and unusual punishment outright, it has briefly outlawed the practice in the past. In 1972's Furman v. Georgia, the Court instated a de facto moratorium on capital punishment. That 5-4 per curiam opinion held that capital punishment was cruel and unusual in William Furman's case, but did not rule on the death penalty categorically. The ruling briefly put a halt to capital punishment until the Court's decision in Gregg v. Georgia four years later, which reaffirmed the general constitutionality of executions.

Death at the High Court's Door

Scalia, whose recent comments are much more hyperbolic than prophetic, has one of the most permissive view of capital punishment and the Eighth Amendment, arguing that only a method of execution "deliberately designed to inflict pain" would be cruel and unusual. He's also had plenty of opportunity to express that view, given how often capital punishment has been before the court lately.

In last term's Glossip, Scalia penned a strong rebuke to death penalty critics. It was, in essence, a dissent to the dissent. Justice Breyer's dissent, joined by Justice Ginsburg, indicated that he was ready to throw capital punishment out altogether. The court recently heard a challenge to Florida's death penalty sentencing procedures, which will certainly provide Justices Scalia and Breyer another chance to air their conflicting views on capital punishment.

A Questionable Master of the Machinery of Death

Of course, for all his death penalty fandom, Justice Scalia has made at least one great error: the case of Henry McCollum. McCollum was sentenced to death for the 1983 rape and murder of an 11-year-old girl. In 1994, Judge Harry Blackmun issued a passionate condemnation of the death penalty in response to the Court's denial of cert in routine capital punishment case. "From this day forward, I no longer shall tinker with the machinery of death," he declared.

Justice Scalia, in another dissent to a dissent, trotted out McCollum and his crimes. If ever there was a justification to lethal injection, it was Henry McCollum and his rape and murder of a young child. "How enviable a quiet death by lethal injection compared with that!" Justice Scalia wrote. McCollum was exonerated last year, after DNA evidence proved he was not connected to the crime for which he was nearly killed.

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