As noted in the New York Times’ editorial, Justice Anthony Kennedy seized the opportunity to write a concurring opinion in Davis v. Ayala to go a bit orthogonal. The case was a habeas corpus review of the defendant’s Batson challenges, the prosecution having used its peremptory strikes to cleanse the jury of dark skin.
But that wasn’t the issue in the case. The issue was that in justifying the use of challenges to rid the jury box of anyone remotely close to the defendant’s life experiences, the prosecutor was allowed to make his pitch privately to the judge so as not to reveal his secret, masterful strategy. Of course, this meant the defense was flagrantly denied due process, but some things must give way if the prosecution is to be assured of a win.
The Supreme held that the offending conduct was harmless error, because the defendant was GUILTY, GUILTY, GUILTY. No harm, no foul. Move along, nothing to see here.
But while agreeing with this outcome, Justice Kennedy took the opportunity to note that Ayala’s world post-conviction was awfully quiet.
Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respondent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell nolarger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.
Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.
This isn’t a reflection on the kind of guy Ayala was, but rather on the kind of people we are, despite whatever kind of guy Ayala was. This wasn’t an issue raised by the petition for certiorari, or properly before the Court for determination. This was Justice Kennedy adding his two cents about a blight on society, how we treat those in custody and the torture of solitary confinement. He saw his opening and went for it.
But Justice Clarence Thomas saw his opening as well, and he too went for it.
JUSTICE THOMAS, concurring.
I join the Court’s opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court. 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 afar sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, 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.
Considering the fact that this was all extra-curricular banter, it may be the Justice Thomas was trying to remind Justice Kennedy that there are victims of crime as well, and they should not be forgotten. If so, then it’s fair game.
But if, as would appear from his actual words, that this is some flavor of lex talionis, base retributive justice, then there is a big problem here. The Times was not impressed by this appeal to emotion, which it called a “quip”:
It was a bizarre and unseemly objection. The Eighth Amendment does not operate on a sliding scale depending on the gravity of a prisoner’s crime.
There is little question but that Hector Ayala is a bad dude. A very bad dude, having committed three murders. That’s why he’s in prison and was given a death sentence, which the California Supreme Court affirmed. It’s not like he’s living the dream, baby.
But until the time comes for the state to have one murderer meet another, it is not our system to subject the prisoner to whatever the ugliest, nastiest, cruelest among us feels he deserves. We don’t put him in the Iron Maiden. We don’t have children throw rotten tomatoes at him. We don’t torture him because he has committed a terrible crime.
And the fact that his victims, the murdered, don’t enjoy the spacious accommodations of the living (at least for now) is an outrageous thing for a Supreme Court justice to say. We know that, which is why Ayala is being punished. It’s not an excuse for anything and everything that can be done to him in the meantime.
We are not Hector Ayala. We are better than Hector Ayala. At least some of us.