As the Supreme Court winds up the season with a bang and a whimper, Justice Thomas has once again distinguished himself as The Big Mistake.
In Davis v. Ayala (US 2015), the majority affirmed a death sentence where the defense was excluded from the Batson hearing. The prosecutor was allowed to argue his “race-neutral” reasons for excluding all the black and Hispanic prospective jurors in an ex parte proceeding, on the ground that allowing the defense attorney to hear his reasons would tip off the prosecution strategy. Since there was no one to dispute the prosecutor’s reasons, they were obviously indisputable. What? You got a problem with that?
Justice Kennedy, although concurring in the result, took the opportunity to observe that Mr. Ayala has been in solitary confinement for the last 25 years. Meaning, most likely, that he was entombed “in a windowless cell no larger than a typical parking spot for 23 hours a day,” with little or no interaction with anyone for the remaining hour. More than 25,000 prisoners in the federal system alone spend years in these conditions, “regardless of their conduct in prison.” Don’t even think about prisoners in the state systems.
In the understatement of the year, Kennedy noted that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” He sarcastically suggested that sentencing judges frankly tell defendants, “In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”
Kennedy’s implied suggestion that punishment should be rational and humane was like a red flag in Justice Thomas’s face. Lowering his head and pawing the ground, he retorted: “I write separately only to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims. . . now rest. And given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”
As if one had anything to do with the other. As if the dead were aware of the passage of time or the size of their coffins. Underneath all the pretensions is a sadistic, superstitious mind.