In a previous post (Punitive Damages v. The Death Penalty 3/22/07) I discussed the difficulty I thought the Supreme Court would have reconciling its decision that a jury in awarding punitive damages could not consider prior harm to identifiable victims, while a jury in a death penalty case could consider the possible (and unlikely) effect upon unknown persons. The prosecutor in the Weaver case, in urging the death penalty, had argued to the jury in emotional terms that they should "send a message" to deter others. I think such an argument is totally inappropriate and agree with the Eighth Circuit that it is "unfairly inflammatory" and should warrant reversal.
The dissent from the per curiam opinion which dismissed the writ of certiorari on the grounds that it was improvidently granted, is more interesting in what it says about the Antiterrorism and Death Penalty Act of 1996 (AEDPA) than what it says about the propriety of the prosecutor's closing. Although the history of the matter is somewhat convoluted, apparently everyone agrees that the District Court improperly dismissed the defendant's habeas petition on the ground that he failed to exhaust his remedies, because he expressed his intention to apply for certiorari from the Supreme Court. His original petition was filed pre-ADEPA, but he re-filed after its adoption.
Not without considerable justification, the dissent argues that the matter should have been decided on the merits as to whether or not the Eighth Circuit had exceeded its authority under the Act in setting aside the capital sentence. However, what caught my attention was the following question posed by the dissent: "Is what happened here any less rational, any less fair****than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after?" What a difference a day makes! The logic is compelling, but the consequences of the statute are chilling.
Further logic suggests that what would have been grounds to reverse the imposition of the death penalty on one day might be gone the next. The dissent suggests that the Court's failure to deal with the matter on the merits causes harm by requiring the State of Missouri to try the defendant again after two decades, and "The greatest harm is done to the AEDPA, since dismissing the writ of certiorari leaves the grossly erroneous precedent on the books".
But could it be that the greater harm comes from the Act itself which may serve to deprive a person sentenced to death of grounds for reversal which otherwise would be recognized, but for the more stringent standard of review mandated by AEDPA. Many, who heretofore would have avoided the death penalty, will now face it ----solely by act of Congress. Here today; gone tomorrow.