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Elena Kagan on Crime
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Death penalty is constitutional, but requires due process
Q: You have described Justice Marshall as your "hero" and his "vision of the Court and the Constitution" ("to safeguard the interests of people who had no other champion") as "a thing of glory." Justice Marshall believed that the death penalty was
unconstitutional under any circumstances. In Furman v. Georgia, (1972), he wrote that he would have held that any use of the death penalty is per se a violation of the Eighth Amendment. Do you agree?A: The Supreme Court has long held that the death
penalty is not per se unconstitutional. Gregg v. Georgia, (1976), is a precedent of the Court entitled to full stare decisis effect.
Q: Do you agree that it is settled law that the death penalty is constitutional?
A: Yes.
Q: Are there any express references to capital punishment in the Constitution?
A: Yes. The Fourteenth Amendment states that no person shall "be deprived of life...without due process of law."
Source: ScotusBlog.com on Elana Kagan confirmation hearing
, Jul 9, 2012
Scientific testing requires live testimony in criminal cases.
Justice Kagan joined the Court's decision on BULLCOMING v. NEW MEXICO on Jun 23, 2011:
Bullcoming was arrested for drunk driving. A blood sample seized by police was given to a state laboratory for testing of its blood alcohol content (BAC). A state chemist performed the test and completed a portion of a document intended for use in a criminal trial. At trial this chemist was not present--was, in fact, on an unexplained unpaid leave--but another chemist appeared to describe the lab's process and read the results from the form over defense counsel's objection.
HELD: Delivered by Ginsburg; joined by Scalia, Sotomayor, Kagan & Thomas
The Sixth Amendment Confrontation Clause confers on the accused in criminal cases "the right … to be confronted with the witnesses against him." The testing chemist was not a mere scrivener of results, but performed the test and recorded significant facts about its integrity and accuracy. The substituted chemist had no personal knowledge of the blood test at all, or information as to whether the testing chemist was on
unpaid leave owing to a failure in his duties. The Sixth Amendment provides a particular guarantee. Courts are not invited to look behind the text for the purpose, and from there to craft something "fair." Further, the report of BAC analysis was "testimonial." It was prepared as part of a duty imposed by law on state chemists to assist with police investigations, and included formalities intended for its introduction as evidence in a criminal case.CONCURRED: Sotomayor concurs in part
This holding does not control non-testimonial documents, testimony by a person with some personal knowledge of a test, an expert witness, or introduction of machine-generated results.DISSENT: Kennedy dissents; joined by Roberts, Breyer, and Alito
The Confrontation Clause is intended to ensure a fair trial with reliable evidence, not that every person who conducts routine evidence testing appear in court for the prosecution.
Source: Supreme Court case 11-BULL-NM argued on Mar 2, 2011
Delay executions if asked by International Court of Justice.
Justice Kagan joined the dissent on HUMBERTO LEAL v. TEXAS on Jul 7, 2011:
Leal, a Mexican citizen residing in the US since age 2, was convicted of murder in Texas and sentenced to death. When arrested, he was newver advised of his Vienna Convention right to contact his consulate. In a case filed by Mexico against the US in the International Court of Justice (ICJ), that court found the US had violated the rights of Leal and other Mexicans by failing to inform them of the Vienna Convention rights.
HELD: Delivered by the Court: SCALIA, THOMAS, ALITO, ROBERTS & KENNEDY
Leal requests a stay of execution to allow Congress time to enact a bill filed in the Senate and supported by the President that would implement the ICJ's view of the Vienna Convention as US law. The Supreme Court would then have jurisdiction to determine Leal's case. Yet this Court has never issued a stay in light of proposed legislation. Further, Congress has not acted though 7 years have passed since the ICJ decision, and 3 since a similar defendant requested a stay
of his execution in hopes Congress would act. If this were truly a legislative priority, Congress would have acted. Whatever might be the international consequences, Congress did not see them as sufficiently grave as to prompt it to change the law. Last, the US refused to argue that Leal was prejudiced by the failure to provide Vienna Convention rights. This argument would be the beginning point for the Court to consider a stay.DISSENT: BREYER dissents; joined by GINSBURG, SOTOMAYOR & KAGAN
The President's representative requested that the Court issue a stay of execution. Grave harm to international relations may follow if this death sentence is carried out despite the US failure to heed the ICJ's ruling. Rapid consideration of legislation by Congress is promised. This Court usually gives great deference to the President in foreign relations. A short delay in Leal's 16 year old death sentence will do little harm compared to a violation of US international obligations.
Source: Supreme Court case 11-LEAL argued on Jul 7, 2011
Page last updated: Mar 21, 2022