The Last Opinion

by Jacob Oldaker

Justice Marshall had a powerful career as a writer from the bench which focused on protecting the civil and criminal rights of others. His writings in criminal law were centered around protecting defendant’s rights against the injustices of the judicial and criminal system. Bruce A. Green & Daniel Richman, Of Laws & Men: An Essay on Justice Marshall’s View of Criminal Procedure, 26 Ariz. St. L.J. 369 (1994). His beliefs and focus were built around his personal understanding of the criminal justice system that was acquired as a criminal defense lawyer. 25 U. Ark. Little Rock L. Rev. 443 (2003). These experiences with the criminal justice system shaped Justice Marshall’s final Supreme Court opinion: a powerful dissent in Payne v. Tennessee. Payne v. Tennessee, 501 U.S. 808 (1991).

Payne was a 6-3 Supreme Court decision in which the majority held “victim impact evidence” to be constitutionally permissible during the penalty phase of the trial. Id. at 827. Justice Marshall was well known as a lifelong opponent of the death penalty because he believed that capital punishment was unconstitutional and never once voted in favor of the death penalty in a case that came before him while on the bench. 27 Miss. C. L. Rev. 335, 336 (2008). This firm opposition to capital punishment had been developed throughout his many years of practice with the NAACP and the Legal Defense Fund. Id. Marshall frequently represented lower income, minority clientele who were commonly falsely charged and were tried before all white juries, in towns filled with segregation. 26 Ariz. St. L.J. 369 (1994). From these trials, Marshall gained an understanding of how human failings can adversely affect the implementation of Constitutional safeguards, and how a common bias can affect the entire criminal justice system and directly resulted in the foundation of his opinions and can be evidently seen in his dissent in Payne. Id.

For Justice Marshall, his concern came with the Court’s decision to overturn certain precedent. Payne overturned decisions from two previous cases, Booth v. Maryland and South Carolina that held victim impact evidence was prohibited. Payne, 501 U.S. at 817. Marshall found issue with change in precedent without “special justification” that had previously been required by the court. Id. He found that the majority’s rationale for overturning two cases of sound precedent had no ground of “special justification” because there were no changes in facts or laws supporting these opinions that had been decided only two and four years previously. Id. He found that the only change was a change in the personnel of the Court and their personal political beliefs instead of a reasoned justification for a policy change. Id. Justice Marshall defended his position with the law and the Court’s overlooking of the principle of stare decisis. Id. I personally find his justification to be sound and a correct observation; I do not believe policy changes should be promulgated by the Court without following the appropriate steps that are in place. Marshall sums it up in his dissent with “Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent” which shares a warning the not only the Court but the United States of the dangers of a politicized court. Id. at 856.

Marshall’s words are powerful and well founded in legal foundation. Capital punishment is not a topic of light conversation. It is powerful, it is serious, and it is one of the most powerful powers of the court because the Court has the power to take a life, the thing the hold to the highest standard when evaluating cases. As a personal advocate of the death penalty, I believe that Marshall may have been too divulged into his own beliefs to see the steps forward that the Court was attempting to make. In Payne, a woman and her child were murdered, while the second child survived the brutal beating. Id. at 851. The surviving child and the grandmother now taking care of that child will forever suffer the pain of this man’s decision to murder them. Id. No man or woman that murders multiple human beings in cold blood should be afforded a free pass to the highest level of criminal punishment due to political beliefs. While Marshall never found a just reason to vote in favor of the penalty, I believe that the Court as a whole could have worked together to develop more rigorous standards for proper implementation of this severe punishment. Many prisoners sit on life sentences or multiple life sentences and will forever be a liability to the law-abiding citizens of the United States. Many courts and states continue to be advocates against the death penalty. I understand the severity of these decisions and the implementation of such a strong penalty but I do believe that it holds value that will benefit society as a whole. Members of the legal community that hold similar beliefs to me, as well as members who follow in the steps of Justice Marshall, need to come together and work together to continue to strengthen our criminal justice system for future generations.

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