Friday, June 10, 2005

Regarding William Rehnquist

As most people know, Chief Justice William Rehnquist is expected to announce his retirement soon. My guess is the announcement will come between Monday, June 27 and Wednesday, June 29 when the court will be releasing its final opinions of the term and heading out of town in advance of the 4th of July holiday weekend.

Rehnquist has had quite an impact on the number of people executed in the United States in the past 28 years. (That would be 971.)

This past Monday, Charles Lane, the Washington Post's Supreme Court reporter (we blogged on him yesterday) wrote about the Rehnquist legacy. Among the choice morsels:

Referring to the last-ditch appeals of the convicted Soviet atomic spies, Julius and Ethel Rosenberg, he wondered why "the highest court of the nation must behave like a bunch of old women every time they encounter the death penalty."

(My note: this notwithstanding the fact that a) Ethel Rosenberg was probably innocent and b) the material that Julius Rosenberg MIGHT have leaked was of little value, having already been leaked by someone else.)

There's more:

The Supreme Court ended capital punishment in 1972, only to approve its reinstatement in 1976. But habeas corpus appeals continued to stall executions -- excessively so in the view of Rehnquist.

"Of the hundreds of prisoners condemned to die who languish on the various 'death rows,' few of them appear to face any imminent prospect of their sentence being executed. Indeed, in the five years since [capital punishment's reinstatement] there has been only one execution of a defendant who has persisted in his attack upon his sentence," Rehnquist, then an associate justice, wrote in a dissenting opinion. "I do not think that this Court can continue to evade some responsibility for this mockery of our criminal justice system."

"Mockery of our criminal justice system" indeed. To me, what makes the federal court system a mockery is when courts ignore their responsibility to comprehensively review sentences. Concepts like "procedural defaults" and "exhaustion" are, simply put, preventing credible claims of innocence from being reviewed. Ane even when innocence is not at issue, other claims -- mental retardation, biased jury selection, ineffective assistance of counsel and police or prosecutorial misconduct, for example, also are being procedurally defaulted, i.e., not given the review they deserve.

Yes, Chief Justice Rehnquist: We do indeed have a "mockery of our criminal justice system." And you, as much as anyone who has served on the court these many years, helped create it.

That's my rant for the day. Have a great Friday, everyone!

To see the entire Lane column, go here.

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