No, not the post-World War II plan. The Thurgood Marshall plan.
He's often remembered as a piece of trivia – America's first black Supreme Court justice – but his tenure on the Court was relatively inconsequential. Marshall should be better remembered for masterminding the NAACP legal strategy that culminated in Brown v Board of Education. He understood that the Court would never declare segregation unconstitutional in one fell swoop. The way to win was to paint them into a corner with an incremental, interrelated series of cases. Baby steps, essentially. Everyone remembers Brown, but there would have been no Brown without Sweatt v Painter. There would have been no Sweatt without Sipuel v Oklahoma. No Sipuel without Gaines v Canada. And so on. It was calculated, it required phenomenal patience, and it worked. Each case poked a small hole in the legal basis for segregation until so little remained that it was crushed under the weight of Brown.
Quaint story. I wonder if the anti-death penalty folks have ever heard it. Or if they have a plan. Or, if what they're doing constitutes a plan, why it's awful.
To absolutely no one's surprise, the Supreme Court rejected the arguments in Baze and Bowling v Rees on Monday. The basis of the challenge was that lethal injection is cruel and unusual punishment – because people performing the procedure can botch it and cause considerable pain to the condemned.
Seriously. That's the argument. That's the argument that anti-death penalty organizations apparently thought was going to do it. This is what they devote their limited resources to.
What's the strategy here? Anti-death penalty arguments based on the 8th Amendment haven't worked for 225 years. Was there a reasonable expectation that the Scalia-Alito-Thomas-Roberts court was suddenly going to be the one that bought it? They didn't buy it, and they didn't buy it because it is an absolutely retarded argument.
Yes, there are dozens of citeable examples of botched executions. Cruelty-based arguments are what eventually phased out Ol' Sparky in favor of lethal injection. But for anti-death penalty people, getting one method replaced with another is not even a hollow victory. It's nothing.
I absolutely detest the death penalty, and not because I think it's "cruel" or "uncivilized" or any other nonsense. It is statistically proven to be applied disproportionately to blacks and Latinos. Period. Since reinstatement in 1976 (note that it was briefly unconstitutional thanks to an Equal Protection-based argument) there have been 15 white people executed for killing a black person. There have been 223 black people executed for killing white people. In 1990, the Reagan-Bush era GAO concluded:
"In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks."
Texas manages to have twice as many blacks and Latinos on Death Row as white people (268-121) despite the fact that the state's population is 71% white. I guess white people in Texas don't commit many murders. More accurately, when they do commit murder "something" about their crime just isn't as heinous as when those scary brown people do it.
The Supreme Court isn't simply going to change its mind on the death penalty. Eighth Amendment challenges will, at best, produce new methods of execution. A coherent strategy based on chipping away at various states' inequalities in seeking capital punishment (and getting it from overwhelmingly white juries) might succeed in a 10 to 15 year timeframe. An non-strategy of randomly litigating of every half-assed idea the 25 year-olds at Legal Aid concoct is guaranteed to accomplish nothing, especially when the basis of the latest lawsuit sounds suspiciously like Rush Limbaugh's impression of a whiny liberal argument.
