Doctrine v. prejudice


Orin Kerr poses a puzzle:

Guess the Authoring Justice: In an opinion handed down this morning, Deck v. Missouri, the Supreme Court considered when it is constitutional for a capital defendant to appear before the sentencing jury in shackles. There was a majority opinion and a dissenting opinion; one was written by Justice Thomas, the other by Justice Breyer.


Okay, so here’s the question: which Justice wrote the majority opinion, and which wrote the dissenting opinion?

With that setup, I was looking for something surprising: presumably Breyer, the softhearted liberal, had for some technical legal reason voted to allow shackles, while Thomas, the hardassed conservative, had voted to forbid them. But no:

Justice Breyer wrote the majority opinion adhering to the common law rule. Justice Thomas wrote the dissenting opinion distinguishing the common law rule.

This is one of the cases where a question that looks hard to an expert looks easy to an amateur.

Orin, starting from the assumption that the Justices’ rulings relate somehow to the law, finds it surprising that the progressive wants to hang on to old precedents while the reactionary wants to junk them in the name of progress.

I, on the other hand, starting from the observation that Breyer is a nice human being while Thomas seems to get all his jollies from cruelty (at least since he was forced to give up Long Dong Silver and sexual harrassment), expected that Breyer would find a reason to bar a cruel practice while Thomas would find a reason to endorse it.

If a state law called for shoving a red-hot poker up the defendant’s rectum immediately after indictment, Thomas (George Bush’s ideal Justice) would point out that the precedent of Edward II showed that such a practice was not “unusual,” and that in any case it wasn’t covered by the Eighth Amendment because it was pre-conviction and therefore not “punishment,” which by definition comes after conviction and sentence. That’s just the sort of guy he is.

So, in my simplicity, I thought that the legally obscure guess was the obvious one.

Footnote The common-law precedent cited by Justice Breyer does seem obsolete, since it rests on the idea that shackling is painful and therefore coercive. The better reason not to have a defendant appear before a jury in shackles is the strong message it sends the jury about his dangerousness, which is likely to bias them against him. For Justice Thomas, that bias is presumably a feature rather than a bug.

Correction The above originally read “Richard II,” which shows the dangers of blogging after midnight. Wrong king, wrong century, wrong playwright. Thanks to commenters on Eschaton and Suburban Guerrilla for noticing the error.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: