Breyer's subjective, personal opposition to the death penalty

The U.S. Supreme Court has again upheld the death penalty, and the majority opinion by Justice Samuel Alito included a lengthy American judicial history of capital punishment litigation and its unquestionable constitutional basis. Glossip v. Gross, 2015 DJDAR 7481 (June 29, 2015). Justice Antonin Scalia wrote a strong concurring opinion and a scathing summary of the dissenting opinion written by Justice Stephen Breyer, who prefers subjective personal opposition to the death penalty without the necessity of precedent or reference to the Constitution. Justice Clarence Thomas, also concurring in the majority, listed several cases reciting vicious facts warranting the death penalty per se, and a jury entitled to render that verdict.

As the Glossip decision was being announced, two incarcerated murderers escaped from a prison in New York - a state forbidding capital punishment. Had either of these two men killed victims again before their capture, what would be the appropriate punishment? Both men, imprisoned on the presumed alternative to the death penalty as life imprisonment without parole, could only be returned to prison. The same result applies to the murder of correction officers by inmates sentenced to life imprisonment without parole.

But even this escape issue pales in comparison to the recent massacres in Massachusetts, Colorado and Connecticut. Anyone reading testimony of the grief and loss to innumerable survivors of men, women and children in these cases, coupled with the mayhem and disrupted plans for their lives or family, can only imagine the human price those and the injured have paid. The anguish of family and friends poured out on the witness stand erases any doubts of the appropriate punishment. And critics of the death penalty are silent on the penalty the jury should impose, in the event of a guilty verdict, for the recent killings of innocent people at a church in South Carolina.

The enormity of some crimes committed, and consequent death and injuries to innumerable unquestionably innocent victims, commands our attention. But overlooked by many people and often cursorily reported in the media, are the comparable horrific and despicable acts committed by just one or two people. Articles describing cases of death to a victim caused by murder, robbery or rape appear briefly in California everyday news, but only warrant quick reading or a sound bite. Seldom does the media describe the despicable facts of torture, decapitation, disfigurement or evidence of indescribable violence. Yet these crimes committed by individuals do not differ in character and scope than mass murders, except for the number of people involved or the celebrity status of the victim.

In some cases, a homicide invokes collateral consequences. In San Francisco, a young woman walking with her father in a tourist area is killed from a shot in the back by an illegal immigrant with an extensive criminal and deportation record. The city of San Francisco can now reconsider its "sanctuary policy" and confront reality. San Francisco jurors never vote the death penalty, but perhaps this case will change that attitude.

Jurors who have sat on actual cases of murder and listened to the brutality of the evidence evince no trouble reaching unanimous verdicts imposing the death penalty. Despite public ad hoc criticism of capital punishment, jurors in California have repeatedly voted the death penalty when confronted with the evidence of murder. Several years ago the voters, weary of crimes committed in California, enacted legislation titled the "Three Strikes Act." Unsurprisingly, the 9th U.S. Circuit Court of Appeals invalidated the law only to be reversed again by the Supreme Court. The act remained enforceable and the crime rate declined.

Occasionally, the Three Strikes Act appeared unreasonable under some circumstances, and the media immediately filed the facts of a trivial third strike ignoring the two previous strikes and their penalties. The voters thought criminal penalties too harsh and voted in Proposition 47 to ease punishment, but crime rates in Los Angeles have dramatically increased. Some people actually think there is a relationship. Imagine that.

The state Supreme Court and its three new, inexperienced justices who have never tried or presided over any trial, and unaware or familiar with California legal history, have already reversed five death penalty cases. Two reversals involving jury misconduct are arguably correct, although the record can be read differently. Perhaps the new members of the court have been reading cases from the 9th Circuit undermining the death penalty for the last decade, or subscribe to the Justice Stephen Breyer model: dispense with precedent and impose personal opinion. People v. Jackson, 58 Cal. 4th 724 (2014).

These three novices are unaware of the difficulty in retrying death penalty cases after a reversal despite overwhelming evidence of guilt or penalty. Witnesses, friends or family members, if they can be found and willing to testify again, are forced to relive a horrific event. They must rewind the emotional and irreplaceable mental record caused by court opinions written by judges who have never tried a case and sit on an appellate level justifying reversals in academic language jurors would have ignored. Reading a cold record is no substitute for reality.