Death penalty’s end isn’t here yet
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter.
The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion.
The constitutional back story is fascinating. It begins with a 1998 decision, AlmendarezTorres vs. U.S., in which Scalia wrote a dissent that was joined by three of the court’s four liberals at the time: Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter. Scalia said there was strong reason to believe that the Constitution requires any fact increasing punishment to be decided by a jury. Thomas didn’t join Scalia’s dissent, and neither did the usually liberal Justice Stephen Breyer.
Thomas’ refusal to join wasn’t yet noteworthy. But Breyer’s was. The most probable explanation was that Breyer had helped dream up and then draft the U.S. sentencing guidelines that governed almost all federal sentencing at the time. One central element of the guidelines was that judges would make findings about the degree of harm and nature of the crime which they then applied according to an elaborate grid designed to reduce judicial discretion. Scalia’s dissent hinted that this arrangement might violate the Constitution, upending the sentencing guidelines.
Two years later, in Apprendi vs. New Jersey, Scalia took the next step. He joined an opinion by Stevens squarely holding that any fact (except the fact of a prior conviction) that enhanced a sentence beyond the statutory maximum must be found by a jury.
This time, Thomas joined him, reversing his vote from Almendarez-Torres and saying he’d gotten that result wrong. The result was a 5-4 opinion with a bizarre judicial lineup: Scalia and Thomas joined three of the liberals, while Breyer, committed to the sentencing guidelines, joined the court’s conservatives.
The conservatives’ reasoning was historical and originalist. But one issue in particular may have been important to Thomas. The idea, first mentioned in a 1999 opinion that helped pave the way for the Apprendi decision, was that common-law juries had the de facto power to block the implementation of criminal laws that they didn’t like.
The great 18th century English legal thinker William Blackstone called such nullifying verdicts “pious perjury.” The jurors perjured themselves by breaking their oath to find the fact accurately, but they were acting piously because the laws were wrong. In particular, Blackstone had in mind the common-law rule that stealing goods of a certain value constituted a felony punishable by death. Juries fudged the facts to find defendants guilty of misdemeanor, thus mitigating the harshness of the laws while simultaneously expressing their dissatisfaction with them.
Thomas never said so explicitly, but it seems probable that he liked the idea of an empowered jury casting doubt on laws it didn’t like.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.