In September and October, Justice Antonin Scalia told audiences at two different law schools that it would not surprise him if the death penalty were ruled unconstitutional while he was still on the court.
Scalia noted Justice Stephen Breyer’s recent dissent in Glossip v. Gross, a case in which Breyer said the court should consider the issue of whether the Eighth Amendment requires an end to capital punishment in America. Scalia had previously identified himself as the fifth vote on a court divided four to four on the issue. He could not have known that his sudden death a few months later might be the vehicle for that very eventuality.
Scalia noted Justice Stephen Breyer’s recent dissent in Glossip v. Gross, a case in which Breyer said the court should consider the issue of whether the Eighth Amendment requires an end to capital punishment in America. Scalia had previously identified himself as the fifth vote on a court divided four to four on the issue. He could not have known that his sudden death a few months later might be the vehicle for that very eventuality.
All of the Republican candidates can be expected to nominate a candidate for the Supreme Court who will follow Scalia’s lead in upholding the constitutionality of capital punishment. Of the remaining presidential candidates, only Bernie Sanders opposes the death penalty and can be counted on to appoint a Supreme Court candidate who would become the fifth vote to abolish capital punishment. It is less clear how Hillary Clinton — a death penalty proponent — would expect her nominee to answer the question, because no one has bothered to ask her.
If Clinton wins, and nominated a candidate with a strong civil rights background, the death penalty will very likely be abolished. However, if a victorious Clinton nominates a former prosecutor, like Loretta Lynch or Eric Holder, it would likely mean the U.S. continues its ignominious membership in a dwindling group of backward nations that continue to execute their own citizens.
Unfortunately, Hillary Clinton has a 20-year history of enacting criminal justice policy that exploits the public’s fear of crime and invariably results in a racially disparate impact on poor minorities. The Clintons’ championing of the 1994 Crime Bill (which contributed to the mass incarceration of poor minorities) and the 1996 Antiterrorism and Effective Death Penalty Act (which raised procedural bars to claims of actual innocence) are both examples of the Clintons’ pandering to the public’s tough-on-crime sensibilities to achieve political ends.
It reflects an approach to governing which is tinged — some might even say poisoned — by a tendency to choose political expediency over ethics and morality. This has been their pattern since their days in Arkansas.
Earlier this week, Clinton made headlines for barking like a dog while telling a folksy story about her husband’s early campaigns in Arkansas. The barking incident was an unintended reminder of the Clintons’ involvement in the 1992 execution of a 250-pound lobotomized man-child named Ricky Ray Rector. A 1993 New Yorker article by Marshall Frady, “Death in Arkansas,” described how Rector repetitively performed a little shuffle dance, and alternatingly giggled to himself like a child or barked like a dog, as he waited in his cell to be executed on Arkansas’ death row. Bill Clinton, who was embroiled in a sex scandal that threatened to derail his presidential campaign, had returned to Arkansas to personally preside over Rector’s execution.
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| Bill Clinton and Hillary Rodham at Yale Law School in New Haven, Connecticut, Jan. 1972. Photo court. William J. Clinton Pres. Library |
Frady also described the frantic efforts of one of Rector’s lawyers to reach Clinton on the day of the execution. Jeff Rosenzweig had grown up with Clinton in Hot Springs, Arkansas, where his father had been Clinton’s pediatrician. When he finally reached Clinton late in the afternoon, Rosenzweig explained the severity of Rector’s mental deficits. Executing Rector, Rosenzweig told Clinton, would be the equivalent of executing a child. Rosenzweig knew it was an uphill battle given the political pressure Clinton was under, but he hoped that his old friend “wouldn’t want to be seen as merciless.” Clinton wouldn’t budge.
The execution proceeded that evening after a one-hour delay, punctuated by Rector’s loud groans, as prison officials struggled to find a usable vein. The medical team finally had to slash into his arm with a scalpel in order to find a vein capable of carrying the lethal chemicals into his massive body. Once the chemicals started to flow, it took Rector 19 minutes to die amid his intermittent gasps for air.
Rector had been sacrificed on the altar of the Clintons’ political ambitions; or, as Frady said one of Rector’s earlier lawyers put it, “Poor ole Ricky Rector’s timing just happened to be real bad.” Speaking last week from his law office in Little Rock, Arkansas, Rosenzweig said the Clinton’s decision to save the 1992 campaign by killing Rector “was certainly a Faustian bargain.”
Hillary Clinton’s key decision-making role in her husband’s 1992 campaign is well-documented, yet no one has ever bothered to ask her about the killing of Rector. It’s about time someone did, and long before she’s in a position to nominate someone to fill Scalia’s seat on the U.S. Supreme Court.
Source: Cato, Nat Hentoff, February 17, 2016. Mr. Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.