April 3
CALIFORNIA:
Assemblyman Tom Lackey Amends Bill To Review Commutations Of Death Sentence
Assemblyman Tom Lackey, R-Palmdale, amended a bill Monday, which he introduced
in February, that would extend the review time before the governor would make
the decision to approve or deny an application for commutation of a death
sentence.
Currently, the California Constitution allows the governor, on conditions the
governor deems proper, to grant a reprieve, pardon and commutation, after
sentence, subject to application procedures provided by statute, according to
Assembly Bill 580.
“On March 13, Governor Newsom directly contradicted the will of the people of
California by placing on a definite hold on the 737 inmates currently sentenced
to death,” said Lackey. “In 2016, California spoke loud and clear by rejecting
a plan to repeal the death penalty by decisive margin.”
Lackey added that in order to give “a voice back to the people,” he introduced
Assembly Bill 580.
Lackey says that AB 580 could potentially accomplish 3 objectives:
Change the amount of time required for the governor to act on an application
for commutation of a death sentence from 10 days to 30 days.
Require the district attorney to notify the family of the victim that the
inmate is up for commutation of their sentence 25 days before the governor can
act.
Allow the victim’s family the opportunity to explain why a perpetrator should
remain on death row.
“The board (Board of Parole Hearings) will then supply the office of the
governor with the recommendation to either approve or deny the application for
commutation,” said Lackey.
Lackey says that the people Newsom is working to protect are people like serial
killer Robert Rhodes.
“Rhodes kidnapped, raped and tortured 8-year-old Michael Lyons before stabbing
him 70 times. The people on death row are not the victims — they are not who
the state should be working to protect,” said Lackey. “They’ve abused, they’ve
raped, they’ve kidnapped, they’ve tortured and some of them have even murdered
their own children.”
AB 580 seeks to empower the families of victims and show “that their loved ones
have not been forgotten.”
(source: hometownstation.com)
OREGON:
Oregon lawmakers may narrow death penalty
A bill that would defang Oregon’s death penalty without a statewide vote got
its first hearing before a Senate committee Monday, drawing testimony that was
overwhelmingly supportive of the novel approach.
Senate Bill 1013 would leave the little-used death penalty in the Oregon
Constitution — only voters can take it out. The bill instead would sharply
narrow the definition of aggravated murder, the only crime punishable by death
in Oregon.
Today, aggravated murder can encompass a variety of crimes, including murders
of multiple people, torture, and killing a child or law enforcement officer.
Under the change being proposed in SB 1013, the crime would only apply to acts
of terrorism in which two or more people are killed. The remaining factors that
are currently classified as aggravated murder would fall under a new crime in
Oregon statute, murder in the first degree.
If passed, the bill could make it unlikely that inmates would be sentenced to
death in the future. Unlike a similar proposal in the House, the 30 Oregon
inmates currently on death row would remain there.
Supporters of the bill on Monday testified that it would save the state
millions of dollars currently spent in the resource-intensive death penalty
process, which includes expensive appeals that can drag on for years.
A study published in 2016 concluded that death penalty cases cost from $800,000
to upwards of $1 million more than cases where a defendant is sentenced to
life.
Proponents also argued the law would spare victims’ families years of hearings
with little closure, and pointed out that the death penalty is little-used as
is. Even before then-Gov. John Kitzhaber announced a moratorium on capital
punishment in 2011 — a stay that has continued under Gov. Kate Brown — it had
been 14 years since an Oregon inmate was executed.
Just 2 inmates have been executed in Oregon in the last 50 years, and both of
them had given up fighting their sentences.
“Regardless of your stance on the death penalty, the Oregon system is failing
you,” said state Rep. Jennifer Williamson, D-Portland. Supporters, she said,
may believe that the punishment “offers victims and families certainty and
justice, but what we do know is it doesn’t do that.”
Among the most impassioned supporters of the bill was Stephen Kanter, emeritus
dean of Lewis & Clark Law School, who has spent decades fighting capital
punishment in Oregon.
He said the question of what crimes should be punishable by death is
unquestionably a decision that should fall to lawmakers.
“We are talking about the Legislature doing its job,” Kanter said. “Trying to
figure out, after careful attention, what are the right definitions for
aggravated murder that should subject, in a rare case, an individual to the
possibility of the death penalty.”
In opposition was Lane County District Attorney Patricia Perlow. Perlow said
she hadn’t come to the hearing to argue for the death penalty, but that the
question of capital punishment should be put before voters.
Perlow recounted grisly crimes that led her office to send three inmates to
death row. Two of the crimes included torture of children.
“These are aggravated murders,” Perlow said. “There are 3 people on death row
out of Lane County because of those heinous acts.”
Perlow also suggested that the changes in SB 1013 would effectively end capital
punishment in Oregon.
“In my 30 years of prosecution, I’ve never prosecuted a terrorist,” she said.
“I’d suggest that if we had a terrorist in our community, it probably would be
prosecuted federally. If your goal is to eliminate the death penalty or the
circumstances under which it could be considered, let’s have an honest
conversation about that and refer it to the voters.”
Supporters of the bill concede asking voters to repeal the death penalty could
be difficult. The state has a fickle history on the issue, enacting and
repealing capital punishment three separate times before the most recent
enactment in 1984.
But SB 1013 might face an insurmountable hurdle precisely because it doesn’t
ask voters to decide. House Speaker Tina Kotek has said repeatedly she believes
the question of capital punishment should be decided by a public vote. If the
bill passes out of the Senate, Kotek could block its path in the House.
Beyond changing the type of crime punishable by death in Oregon, SB 1013 also
modifies the questions jurors must answer before ordering a death sentence. The
state currently asks jurors to decide whether there’s a probability a defendant
will be violent in the future. Opponents say that’s an impossible prediction,
and point to studies suggesting juries often get the question wrong.
“We fixed the problem with the Boeing planes by grounding those planes until we
were certain,” said Jeff Ellis, a Portland attorney and board member of
Oregonians for Alternatives to the Death Penalty, who helped with SB 1013. “And
yet decades have passed and we have not fixed the problem of [asking about]
future dangerousness.”
(source: heraldnews.com)
*****************************
Voters should have say in death penalty
The Oregon Senate’s Judiciary Committee held its first hearing on a proposal to
gut the state’s death penalty law on April Fool’s Day.
Perhaps lawmakers failed to see the irony in choosing that date to take
testimony on this misguided measure.
Senate Bill 1013 would change the definition of “aggravated murder” in Oregon
to include only acts of terrorism that kill 2 or more people. The 35 men and
women now on death row would stay there, but as history has made clear, it’s
unlikely the state is going to put them to death.
The change would, effectively, end the death penalty in Oregon. Acts of
terrorism are hardly a routine occurrence. Too, the bill’s definition of
terrorism is narrow: Terrorism is only behavior designed to intimidate or
coerce civilians, influence government policy through intimidation or coercion,
or affect the conduct of government through property destruction, murder,
kidnapping or aircraft piracy.
What’s really wrong with the measure, though, is this: Lawmakers apparently do
not trust that Oregonians share their abhorrence for the death penalty. That’s
the only way to explain their decision to decide the matter for the rest of us
rather than referring it to voters for a final decision.
No matter what you think of the death penalty — and this newspaper has opposed
it for years — denying voters the final say on the matter is a bad idea. It’s
made worse by employing subterfuge, as this measure does, to undo a law that
Oregonians voted into being.
Lawmakers wonder sometimes why voters don’t seem to trust them. They need only
to look at SB 1013 to see why. For 100 men and women to decide for more than 4
million Oregonians the fate of a hot-button issue like the death penalty is
inappropriate. Instead, those men and women should give the state’s voters
final say on the matter.
(source: Editorial Board, The Bend Bulletin)
USA:
Legal Experts Aghast as 'Bloodythirsty' Right-Wing Supreme Court Sanctions
Torturous Executions----The ruling, warned one expert, "legalizes torture and
effectively reverses 60 years of progressive precedent. It transforms a
barbaric view of the 8th Amendment into the law of the land. It is horrific."
Critics on Tuesday said the U.S. Supreme Court's ruling in a case brought by a
Missouri death row inmate fundamentally erodes protections against torture
enshrined in the U.S. Constitution.
Justice Neil Gorsuch wrote the opinion for the court's right-wing majority in
the 5-4 decision, ruling that Russell Bucklew can be executed by lethal
injection despite his medical condition, cavernous hemangioma. The disease,
warn his legal team and medical experts, will cause Bucklew to choke for
several minutes on his own blood before dying as the tumors growing in his
throat and elsewhere in his body rupture.
"The Eighth Amendment does not guarantee a prisoner a painless death," wrote
Gorsuch.
The decision was denounced as "atrocious," "blood-thirsty" and "barbaric" by
death penalty abolitionists and other critics, with some saying the high
court's approval of Bucklew's execution is tantamount to nullifying the
Constitution's Eighth Amendment—the law banning cruel and unusual punishment.
Gorsuch argued in his opinion that Bucklew did not make his objection known
early enough to change the state's planned course of action and accused the
inmate of trying only to delay his execution.
The judge, who was confirmed in 2017 after being nominated by President Donald
Trump, also suggested that Justice Clarence Thomas's extreme view on the Eighth
Amendment—that "cruel and unusual punishment" should be understood only as pain
that is deliberately inflicted—is now the law of the land.
At the legal analysis blog Above the Law, Elie Mystal wrote that Gorsuch's
opinion will not only condemn Bucklew to a painful death instead of forcing the
state to find a less painful method, as the inmate requested, but will weaken
the Eighth Amendment's protections for other death row inmates for generations
to come.
"Unknown numbers of innocent people have been executed in this country since
the death penalty was reinstated," wrote Mystal. "Untold numbers of guilty
people have known the spiteful vengeance some people mistake for justice.
Through it all, the Eighth Amendment sits on the sidelines, a grand idea
neutered by our society’s rage and cowardice, waiting for better men and women
to live up to its noble promise."
"If a death sentence or the manner in which it is carried out violates the
Constitution, that stain can never come out." —Justice Sonia Sotomayor
"But Neil Gorsuch is not a better man," he continued. "Instead of just killing
the murderer and being done with it, Gorsuch could not resist seeing the
Bucklew case as an opportunity to experiment with justifications of the state’s
right to inflict suffering that have long been discarded by decent people."
In the minority's dissent, Justice Sonia Sotomayor rebuked Gorsuch's position
that Bucklew's execution must not be delayed any longer. Before retired Justice
Anthony Kennedy was replaced by Justice Brett Kavanaugh last year, Kennedy
joined Sotomayor and three other justices to issue a stay on Bucklew's
execution.
"There are higher values than ensuring that executions run on time," Sotomayor
wrote. "If a death sentence or the manner in which it is carried out violates
the Constitution, that stain can never come out. Our jurisprudence must remain
one of vigilance and care, not one of dismissiveness."
In allowing Bucklew's execution to proceed, instead of adhering to decades of
interpretation of the Constitution, Ian Millhiser wrote at Think Progress, the
majority opinion "literally tears out the heart of more than a half-century
worth of Eighth Amendment precedents, and replaces it with a very different
legal rule that, until recently, was rejected by all but the Supreme Court’s
most hardline conservatives."
"The majority's willingness to cast aside one of the most firmly established
assumptions of constitutional law so casually," Millhiser added, "suggests that
they will do it again. And again. And again."
(source: commondreams.org)
*****************
The Death Penalty and the Conservative Court----This is what a conservative
Supreme Court gets?
Monday, the Supreme Court issued a decision in Bucklew v. Precythe, in which a
death row inmate sought a less gruesome means of execution—not a lifting of his
death sentence, mind you—and the court found against him.
Russell Bucklew was convicted of murder 22 years ago and sentenced to death by
lethal injection of pentobarbital by the State of Missouri. Bucklew has a rare
medical condition called cavernous hemangioma. This malformation of blood
vessels creates blood-filled lesions throughout his head, neck, and throat.
Bucklew’s attorneys claim that lethal injection may cause these lesions to
burst, causing an agonizing and gory death. The contention is that in Bucklew’s
specific case, death by lethal injection is cruel and unusual and thus in
violation of the Eighth Amendment.
The Court found against this claim by a 5-4 vote, with the majority opinion
written by Justice Gorsuch.
The principal arguments for the death penalty center around fairness and
retribution for victims. These justifications thread throughout Gorsuch’s
opinion. Bucklew’s petition claimed that if the state used an alternative
method of execution (specifically nitrogen hypoxia) it would not constitute
cruel and unusual punishment, because it would kill him without causing the
massive hemorrhaging (and resultant suffocation and bleeding) that
pentobarbital may cause him.
Perhaps this is what a “big win” for the new conservative majority looks like.
Yay.
Some takeaways:
(1) As with other hot-button issues, including abortion and gun rights, the
question about the death penalty is: How much power do we want the government
to have over individual liberties?
If abortion were criminalized, it would be the government that would put
doctors in jail. If gun rights were curtailed, it would be the government that
would confiscate banned weapons. And when we’re talking about capital
punishment, it’s the government that lawfully murders people in 30 states and
at the federal level—1,493 people since 1976.
Conservatives are normally naturally distrustful of the efficacy, intelligence,
and fairness of government mechanisms. Remember the Lois Lerner controversy
over the IRS targeting of select political groups? Talk about the EPA or SEC or
CFPB and conservatives will tell you all about how government can mess up the
lives of citizens through incompetence, bad faith, or both.
Except when it comes to capital punishment. There, suddenly—unrealistically—the
machinery of government gets the benefit of the doubt. Even though nearly every
single review shows that the government makes mistakes in a substantial
percentage of death penalty cases, and at least 160 people on death row have
been exonerated for convictions that were based on bad evidence.
And even though statistics show that the odds of a death sentence for
African-Americans is disproportionately higher than for white defendants for
similar crimes.
If you think the government handles the DMV badly, why would you want to expand
its authority over citizens to a point where reversal of a mistake becomes
impossible, because the citizen is dead?
(2) According to the Supreme Court, “[t]he Constitution allows capital
punishment.”
The legal grey area is around what is “cruel” and what is “unusual.” What’s off
the table under this standard? According to the majority in Bucklew (cover the
kids’ ears here), things like “dragging the prisoner to the place of execution,
disemboweling, quartering, public dissection, and burning alive . . . were
undoubtedly ‘cruel.’” Good to know.
Justice Gorsuch goes on to explain that the word “cruel” at the time of the
Eighth Amendment’s ratification meant “pleased with hurting others; inhuman;
hard-hearted; void of pity; wanting compassion; savage; barbarous;
unrelenting.”
Gorsuch elaborates on what would cross an Eighth Amendment red line in 2019:
“whether the State’s chosen method of execution cruelly superadds pain to the
death sentence.”
Pain-superadding is a tough legal standard to wrap one’s mind around. (Maybe
it’s like a penumbra, but for conservatives.)
Note that, at one point in America’s history, the Supreme Court took compassion
quite seriously. Executions stopped between 1972 and 1976 in the wake Furman v.
Georgia, in which the Court held that the sentence could not be imposed
arbitrarily—states needed to adopt standards to guide judges and juries.
So the states came up with some, and here we are today arguing about which
killing protocols are okay and which are not. Bottom line: Nobody is entitled
to a pain-free execution. (Note that violence by the prison system is
constitutionally tolerated too. Prison guards can use force against inmates
unless done to “maliciously and sadistically . . . cause harm.”)
(3) Inmates can challenge methods of execution, but the bar set by the Supreme
Court is a high one: the proposed alternative must be one that’s “feasible,
readily implemented, and in fact significantly reduces a substantial risk of
pain.”
The problem for the majority in Bucklew is that Bucklew didn’t submit enough
evidence to justify further court proceedings on the nitrogen hypoxia
alternative to pentobarbital. In her dissenting opinion, Justice Sotomayor
quipped that “there is no sound basis in the Constitution for requiring
condemned inmates to identify an available means for their own executions.”
(Justice Kavanaugh was careful to calibrate that standard in his concurring
opinion, as well.) The state is not burdened with identifying less painful
means of killing people.
(4) It’s impossible to get around the subjectivity inherent in Eighth Amendment
decisions.
Put another way, the justices inevitably impose their own value judgments in
making Eighth Amendment decisions, because the language of the Constitution
itself is vague and undefined.
In Bucklew, Justice Gorsuch carefully reasoned that Bucklew’s rationales for
the nitrogen hypoxia option “rest on speculation unsupported.” Those
passages—which focus on a study of euthanasia in horses to determine whether
the two drug options would facilitate a pain-free “twilight stage [that] would
last 20 to 30 seconds,” and whether “he would have trouble managing his airway
. . . if he were forced to lie supine”—are hard to read.
But Gorsuch went further, pinging Bucklew with pursuing a lawsuit that “has now
carried on for 5 years and yielded 2 appeals to the Eighth Circuit, 2 11th-hour
stays of execution, and plenary consideration in this Court,” while “[t]he
people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others
like them deserve better.”
That is an ethical value judgment, full stop. Not a legal analysis.
(5) If cruelty in executions is to end, it will have to be vanquished by
voters.
Here’s Justice Gorsuch again: “The same Constitution that permits States to
authorize capital punishment also allows them to outlaw it. But it does mean
that the judiciary bears no license to end a debate reserved for the people and
their representatives.”
This last line by Justice Gorsuch is a bit ironic. In Bucklew, as with many
death penalty cases, the Supreme Court did resolve the ethical debate—in favor
of a potentially brutal, if not unconstitutional, execution.
There’s no getting around that.
(source: Kim Wehle is a contributor to The Bulwark and a professor at the
University of Baltimore School of Law and a former assistant U.S. attorney and
associate independent counsel in the Whitewater investigation----The Bulwark)
**********************
The Supreme Court’s Twisted Devotion to the Death Penalty----The conservative
justices' convoluted opinions are undermining the court's legitimacy more than
any confirmation battle could.
Supreme Court justices like to project an image of collegiality and sobriety to
the American public. But that comity often breaks down when the court debates
the death penalty. The latest example is Monday’s opinions in Bucklew v.
Precythe, which read more like a barroom brawl than a judicial exchange of
views.
Russell Bucklew, a Missouri death-row prisoner with a rare medical condition,
filed a lawsuit in 2015 to make the state execute him by nitrogen hypoxia.
Missouri’s choice of lethal injection, he warned, could force him to die
drowning in his own blood. The five conservative justices on the court ruled
that he hadn’t met their high threshold for challenging execution methods. The
Eighth Amendment, Justice Neil Gorsuch wrote for the court, “does not guarantee
a prisoner a painless death—something that, of course, isn’t guaranteed to many
people, including most victims of capital crimes.”
In their dissent, the four liberal justices accused their colleagues of placing
judicial convenience over Bucklew’s constitutional rights. “There are higher
values than ensuring that executions run on time,” Justice Sonia Sotomayor
wrote. “If a death sentence or the manner in which it is carried out violates
the Constitution, that stain can never come out.” Justice Stephen Breyer, the
court’s foremost critic of the death penalty, laid out the court’s ruling in
stark terms. “Bucklew has provided evidence of a serious risk that his
execution will be excruciating and grotesque,” he explained. “The majority
holds that the State may execute him anyway.”
Between the partisan dogfight to confirm Justice Brett Kavanaugh last fall and
some Democrats’ troubling calls for court-packing this spring, it’s been a bad
few months for the Supreme Court’s legitimacy. But the court has done itself no
favors in its recent death-penalty rulings. In deciding that Bucklew had no
right to an alternative method of execution, the majority does what it
increasingly feels like it must do: mangle facts and precedent to keep the
machinery of state-sanctioned death rolling. That habit may ultimately do more
harm to the court than any external force ever could.
Russell Bucklew was not challenging his conviction in the 1996 murder of a
neighbor. (Bucklew’s wife had fled to the neighbor’s home one night after a
series of beatings.) Bucklew suffers from cavernous hemangioma, which causes
blood-filled tumors to grow throughout his head, neck, and throat and they are
too fragile to remove through surgery. His lawyers warned the court that lethal
injection could cause the tumors to rupture midway through his execution,
filling his lungs with blood and suffocating him.
Bucklew faced a daunting legal precedent. In the 2015 case Glossip v. Gross,
the Supreme Court laid down a high threshold for death-row prisoners who
challenge a state’s chosen method of execution. The prisoner must prove that
the method in question offers a “substantial risk of severe pain” and propose
an alternative method that would suffice. What’s more, the prisoner must also
demonstrate that the alternative method is “feasible” and could be “readily
implemented.” Bucklew asked the courts to choose nitrogen hypoxia to suffocate
him instead. Several states, including Missouri, have laws to authorize the
method, but none have used it yet.
Gorsuch spent part of the opinion disputing testimony by Dr. Joel Zivot, an
anesthesiologist who appeared on Bucklew’s behalf in the district court. Zivot
warned Bucklew would likely experience “suffocation, convulsions, and visible
hemorrhaging” for “more than a few minutes to many minutes” before falling
unconscious. But Gorsuch still concluded that there’s “nothing in the record to
suggest that Mr. Bucklew will be capable of experiencing pain for significantly
more than 20 to 30 seconds.” He also doubted the feasibility of nitrogen
hypoxia, criticizing Bucklew for a “bare-bones” proposal:
He has presented no evidence on essential questions like how nitrogen gas
should be administered (using a gas chamber, a tent, a hood, a mask, or some
other delivery device); in what concentration (pure nitrogen or some mixture of
gases); how quickly and for how long it should be introduced; or how the State
might ensure the safety of the execution team, including protecting them
against the risk of gas leaks.
Set aside the macabre demand for Bucklew to design the gas chamber in which he
will be executed. Why is it his responsibility, and not the state’s, to make
sure prison employees are protected from gas leaks?
Gorsuch’s questioning is part of a pattern for the Roberts Court, which has now
made it incredibly difficult for prisoners to challenge the method by which
they die, apparently because the conservative justices don’t want the
challengers to succeed.
Death-penalty abolitionists have spent the past decade taking on execution
methods, and have had plenty of success. U.S. drugmakers and the European Union
were pressured into imposing an embargo on selling lethal-injection drugs to
U.S. states. Some states responded by turning to more widely available
sedatives or even to illegal and unregulated suppliers. Others simply stopped
executing people.
In theory, this campaign shouldn’t affect the Eighth Amendment rights of the
condemned. But some of the conservative justices have signaled that it does. “I
guess I would be more inclined to find that [midazolam] was intolerable if
there was even some doubt about this drug when there was a perfectly safe other
drug available,” Justice Antonin Scalia mused during the Glossip oral
arguments, referring to a controversial sedative used in 2 botched executions
in Oklahoma. “But the states have gone through two different drugs, and those
drugs have been rendered unavailable by the abolitionist movement putting
pressure on the companies that manufacture them so that the states cannot
obtain those 2 other drugs,” he noted.
Justice Samuel Alito was even more blunt. “Those who oppose the death penalty
are free to try to persuade legislatures to abolish the death penalty,” he told
the prisoners’ lawyer. “Some of those efforts have been successful. They’re
free to ask this court to overrule the death penalty. But until that occurs, is
it appropriate for the judiciary to countenance what amounts to a guerilla war
against the death penalty which consists of efforts to make it impossible for
the States to obtain drugs that could be used to carry out capital punishment
with little, if any, pain?” His majority opinion in Glossip enshrined his
underlying premise: If abolitionists prevent a state from carrying out less
painful executions, the Eighth Amendment allows states to use more painful
ones.
This urge permeates Monday’s decision. Gorsuch complains throughout the
majority opinion that it has taken more than two decades to execute Bucklew.
“Courts should police carefully against attempts to use such challenges as
tools to interpose unjustified delay,” he wrote, adding that last-minute stays
of execution “should be the extreme exception, not the norm.” The timing of
Bucklew’s lawsuit, coming twelve days before his scheduled execution, wasn’t a
question before the court; Gorsuch’s criticism of it is wholly superfluous. His
apparent purpose was to give the justices an opportunity to revisit their clash
over a separate death-penalty case from February.
That case, Dunn v. Ray, seems to have intensified the justices’ fissures over
the death penalty. Domineque Ray, a Muslim death-row inmate in Alabama, sued
the state in January on religious-freedom grounds less than a fortnight before
his scheduled execution. Alabama allowed Christian death-row inmates to have a
Christian minister in the same room during their executions, but refused Ray’s
request to have an imam by his side when he died—a fairly clear-cut violation
of the First Amendment’s command of religious neutrality. The Eleventh Circuit
Court of Appeals issued an order staying Ray’s execution so his lawsuit could
proceed.
The court’s five conservative justices lifted the Eleventh Circuit’s stay and
let Ray’s execution go forward. The majority said in a brief, unsigned
statement that Ray had filed his appeal too late to be considered. Justice
Elena Kagan, joined by three colleagues, wrote a forceful dissent from what she
called a “profoundly wrong” decision. She criticized the majority for
misstating the timeline in which Ray brought the case, for ignoring his strong
claim of religious discrimination, and for “short-circuiting” the normal
appellate process to reach their preferred result. Legal observers from across
the political spectrum agreed with her analysis.
Last week, in Murphy v. Collier, the court halted an execution in Texas on
similar grounds. Patrick Murphy, a Buddhist death-row inmate, challenged
Texas’s practice of allowing Christian and Muslim clergy in the execution
chamber but none from his faith. Murphy’s case prompted curiosity and
speculation among court-watchers. Had some of the conservative justices
reversed themselves in response to Kagan’s public shaming and the
near-universal public criticism? The court, as usual, did not say. Justice
Brett Kavanaugh alone wrote an opinion to concur with the move, stating
outright that the Constitution “prohibits such denominational discrimination.”
But Gorsuch’s majority opinion on Monday dispels any suggestion of doubt on the
justices’ part. It affirmatively cites Ray’s case as precedent and doubles down
on the reasoning behind it. “For example, we have vacated a stay entered by a
lower court as an abuse of discretion where the inmate waited to bring an
available claim until just 10 days before his scheduled execution for a murder
he had committed 24 years earlier,” Gorsuch wrote as part of his larger
critique of execution delays. He then offered a more substantive defense of the
court’s actions in Dunn in a footnote, noting a state statute that allows a
“spiritual adviser of the condemned” to “be present at an execution,” but
doesn’t specify the level of access. “The inmate thus had long been on notice,”
Gorsuch wrote, “that there was a question whether his adviser would be allowed
into the chamber or required to remain on the other side of the glass.”
It’s stunning that 5 Supreme Court justices would return to a point that has
been so readily disproven by one of their colleagues. The aforementioned
statute, Kagan explained back in February, “makes no distinction between
persons who may be present within the execution chamber and those who may enter
only the viewing room. And the prison refused to give Ray a copy of its own
practices and procedures (which would have made that distinction clear). So
there is no reason Ray should have known, prior to January 23, that his imam
would be granted less access than the Christian chaplain to the execution
chamber.”
The Roberts Court’s support for the death penalty is not out of step with
public opinion: a majority of Americans support it, too. But in their zeal to
keep capital punishment running, the justices are increasingly twisting
themselves into absurdities. Death-row prisoners with rare medical conditions
have to overcome impossible legal hurdles to avoid drowning in their own blood.
Those with religious-freedom claims must act with superhuman perceptiveness or
else be faulted by a merciless court on procedural grounds.
This is a dangerous path to trod. The Supreme Court’s legitimacy is grounded in
the idea that the Constitution is more than whatever five justices happen to
think it means at any given time. The post-Kennedy court’s approach to capital
punishment suggests otherwise. The Eighth Amendment now seems to say whatever
the court’s conservative majority think it says—any interpretation will do, as
long as it keeps execution chambers running. That attitude is more corrosive to
the court’s integrity than any political maneuver could ever be.
(source: Matt Ford, The New Republic)
********************
The Moral Failure of the Justices’ Death Penalty Debate
The Supreme Court’s most recent opinion is a literal horror show that avoids
the key problem with executions.
In a 5-4 decision Monday, the U.S. Supreme Court refused to block the execution
of a Missouri man who says the lethal injection may cause him excruciating pain
because of a medical condition. The legal commentators have been out in force
since, explaining the politics of the justices’ disagreement and the
ever-changing technical aspects of death penalty jurisprudence.
That analysis is useful, but it’s also beside the point. What’s really at stake
is whether and how the Supreme Court should engage with what the late Justice
Harry Blackmun memorably called “the machinery of death.”
On that question the verdict of history will be clear: All 9 justices have
gotten it terribly wrong. And so has the Supreme Court itself.
The reason is not legal, but moral.
It’s morally repugnant for the justices to stage clinical-sounding debates on
whether specific methods of execution are constitutional, balancing firing
squads against injections, gas chambers and electrocution — all against the
historical backdrop of hanging.
These debates, conducted in the bloodless language of legalese, move us away
from the reality that the state is killing one human being as punishment for
the killing of another. They put the justices in the position of justifying
execution itself, but doing so obliquely rather than directly.
Instead of directly debating the constitutionality of capital punishment, both
sides of the court engage in excesses of graphic description. Both sides
presumably intend to influence the reader. The effect, however, is to make the
justices look like they are using victims and murderers as means to a debate,
rather than ends in themselves.
The court could reasonably strike down capital punishment, as it did for a time
50 years ago. Or it could stand aside like Pontius Pilate, wash its hands of
the dirty business of execution, and let the states choose their own methods
without oversight.
Either option, even the distasteful latter one, would be morally superior to
the court’s practice of turning cases about methods of executing real people
for real crimes into proxy wars fought on the field of graphic language and
repugnant rhetoric.
The lead opinions in Bucklew v. Precythe powerfully demonstrate this moral
error.
The majority opinion, by Justice Neil Gorsuch, starts with a detailed
description of the horrific crimes for which Russell Bucklew was sentenced to
death. Suffice it to say that the crimes included murder and rape. If you need
the details, you can read the opinion.
When I was a law clerk at the Supreme Court some 20 years ago, the internal
memos written by more conservative law clerks often dwelt in detail on the
horror of the crimes committed, while those written by more liberal clerks
tended to state the nature of the crimes more compactly.
Gorsuch was a clerk in that same era, and he uses that conservative technique
in his opinion published Monday. When the court decides other kinds of criminal
cases, it typically doesn’t dwell in so much detail on the crime itself.
Presumably, the purpose of detailing horrific crimes is to give readers the
sense that the criminal really deserves death. Simultaneously, the narrative
makes the reader less sympathetic to the person about to be executed. Someone
who committed acts like this, it would seem, must not be a person but a
monster.
The rhetorical aim is ultimately to emphasize the legitimacy of the death
penalty itself. Gorsuch, a skilled writer, wants to distract us from the horror
of the methods-of-execution discussion that follows.
This isn’t a critique only of the conservatives. In his dissent, Justice
Stephen Breyer described in still greater detail the condition of cavernous
hemangioma, the blood vessel tumors from which Bucklew suffers. Breyer cited
the details of expert testimony by a doctor who said Bucklew is highly likely
to suffer great pain as well as “visible hemorrhaging” of his tumors if killed
by lethal injection.
If you asked Breyer why he included the detail, he would no doubt say that in
order to make a claim of cruel and unusual punishment under the Eighth
Amendment, he needed to explain the facts supporting his judgment that the
method of execution would exceed “the limits of civilized standards.” Those
limits, it would seem, are defined in part by the revulsion Breyer feels in
contemplating the consequences of the execution.
Rhetorically, Breyer is trying to produce the same sense of revulsion in the
reader.
This is all wrong — on both sides.
And that’s even before the court gets into the technical question of whether
the Eighth Amendment is violated only when pain or humiliation is “superadded”
to an existing mode of execution. That debate takes the court into the
territory of burning at the stake, crucifixion and breaking on the wheel.
There’s also a discussion of the validity and relevance of a study on horses
injected with pentobarbital. You can’t make this stuff up — nor would you want
to.
Historians of the future are going to look at this opinion and try to
understand how the justices got themselves into this literal horror show of
killing techniques.
The answer will be that the justices can’t face up to the fact that they sit in
supervision of death machinery.
The court’s liberals who believe the death penalty is unconstitutional should
say so — and repeat that point for each case that arises.
The court’s conservatives should openly say that it’s up to the states to
execute however they choose and that as justices they are either enthusiastic
or at least prepared to let that happen.
Then history can choose which side in that underlying debate is correct. I
think it’s pretty obvious which one it is, but I fully acknowledge I could be
wrong.
Regardless, the justices would then be able to avoid the morally troubling
approach they are taking now.
(source: Noah Feldman, Bloomberg News)
*************************
This Supreme Court ruling is exceptionally cruel
Russell Bucklew is on death row in Missouri, and the United States Supreme
Court just gave that state the go-ahead to kill him in one of the most
torturous and cruel ways possible. Bucklew, who has a rare condition that
leaves his body riddled with bleeding-prone tumors, will convulse, choke, and
eventually suffocate on his own blood if he is executed by lethal injection,
according to his lawyers. If this is true, his death will be slow. It will be
brutal. It will be excruciatingly cruel.
And according to Neil Gorsuch and the other right-wing members of the Supreme
Court, it will be legal, even in the face of the Eighth Amendment, which says
in full, "Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted." Previously, the Supreme Court
had, in accordance with the Eighth Amendment's bar on cruel and unusual
punishment, held that inmates who would essentially be tortured by the standard
methods of execution could be killed in another, less painful way. The court
never required that executions be painless, and indeed recognized that killing
a person usually means he feels some pain (this fact alone should disturb any
decent human being). But previous iterations of the Supreme Court typically
held that, where less potentially painful methods of execution were available,
they should be used.
This court has gone in a different, exceptionally barbarous direction. As long
as a state isn't intentionally trying to make an execution super-painful, they
say, then it's fine. At Slate, Mark Joseph Stern cuts to the chase, writing
that with this decision, "five justices of the Supreme Court authorized
Missouri to torture a man to death."
The United States is already an extreme outlier when it comes to the death
penalty. We are in the company of the world's very worst human rights abusers
when it comes to the number of people we execute: China, Iran, Saudi Arabia,
Iraq, Pakistan, Egypt, and Somalia. More than a hundred countries (that is,
most of them) worldwide have abolished the death penalty; some others have
death penalty laws on the books, but don't utilize them.
In the United States, the death penalty serves no purpose other than raw,
barbaric vengeance. It is more expensive to keep someone on death row than it
is to sentence them to life in prison. Whether a person receives a penalty of
death depends more on their race, the race of the victim, and which state they
live in than on the crime itself -- black defendants are more likely to receive
the death penalty, as are people whose victim was white, as are defendants
tried in the South. That's not blind justice; it's racism that means some
people live and some die. And that certainly is not how the criminal justice
system is supposed to operate.
Many studies have been conducted on whether or not capital punishment has the
deterrent effect of lowering homicide rates, and nearly all of them conclude
that it does not. Between 1973 and 2016, 150 people on death row were found to
be innocent and released. It's indisputable that there are many more innocent
people who are sentenced to death; many have surely been killed by the state.
Human beings are capable of remarkable cruelty, and many of the crimes that
land people on death row are horrifying. It can be tempting to let our most
basic human instincts decide that people convicted for doing the unthinkable
should pay with their lives.
But we can also choose, like most of the rest of the world, to evolve, to
recognize that the state should simply not have the right to murder its own
citizens, and to see that the stakes are simply too high to exact such an
extreme and permanent penalty.
Instead, the conservative majority of the Supreme Court has embraced its most
barbarous impulses, and denigrated our constitution in the process. Human
beings who act with that level of cruelty -- who torture, who murder -- should
be the ones we put in jail. And those who put a legal veneer on
judicially-sanctioned torture and murder shouldn't be the people interpreting
our laws from the most vaunted bench in the land.
(source: Jill Filipovic, CNN)
***********************
The Supreme Court’s Bitter Feud Over a Controversial Death Penalty Case Boils
Over Into the Public
Toward the end of his appalling opinion allowing Missouri to torture a man to
death, Justice Neil Gorsuch decided to settle an old score. “Last-minute stays”
of execution, Gorsuch declared on Monday, “should be the extreme exception, not
the norm.” This, Gorsuch sought to make clear, was why the court rejected
Domineque Ray’s strong religious discrimination claim in February, allowing the
Muslim inmate to die without his imam present. Ray, Gorsuch insisted, “waited
to bring an available claim until just 10 days before his scheduled execution.”
The court had no choice but to spurn his “last-minute” request.
Gorsuch’s post hoc rationalization of the court’s controversial repudiation of
Ray spurred withering rejoinders from Justices Stephen Breyer and Sonia
Sotomayor. Their debate is unusual—the justices’ internal squabbles over
emergency motions rarely spill out into the open like this—and revealing. With
Justice Anthony Kennedy off the bench, the Supreme Court is more bitterly
divided over capital punishment than ever before. And Ray’s execution has
become a flashpoint for the justices’ furious and increasingly public bickering
over the death penalty.
The court’s ruling in Bucklew v. Precythe did not involve a dispute over
“last-minute” requests for stays of executions. Instead, it centered around
Russell Bucklew’s request not to die in excruciating pain. Due to a rare
medical condition, Bucklew might suffocate to death on his own blood if given a
lethal injection, so he asked to be killed with nitrogen gas instead. By a 5–4
vote, the court rejected his request, ruling that death by gas was not
“feasible” in Missouri (even though it is authorized by law) and that Bucklew
failed to prove that this method of execution would “significantly reduce his
risk of pain.”
Gorsuch, however, didn’t leave it at that. In the final pages of his opinion
for the court, the justice went off on a tangent about death row inmates
thwarting their executions with “last-minute” appeals. Courts should rarely (if
ever) grant a stay of execution just days before a prisoner is scheduled to
die, Gorsuch wrote. If a lawsuit “could have been brought” earlier, courts have
a duty to toss it out to ensure “the timely enforcement of a sentence.” Gorsuch
cited Ray as an example of a death row inmate who waited too long to sue and
thus forfeited his constitutional rights.
Why did Gorsuch drag Ray into this unrelated case? Recall that Ray did not
challenge the method of his execution, as Bucklew did, but rather demanded that
Alabama permit his imam to accompany him in the death chamber. (Alabama offered
to provide him a Christian chaplain or nothing.) On Feb. 7, in Dunn v. Ray, the
court turned Ray away, concluding that he brought his claim too late. Justice
Elena Kagan wrote a sharp dissent joined by the other three liberals. (Her
dissent was so powerful, and Ray’s claim so strong, that the court reversed
course in a similar case involving a Buddhist inmate last week, after Justice
Brett Kavanaugh apparently changed his mind about the rights of religious
minorities.)
The court’s decision in Ray is old news, it involves a man who is now dead, and
it is legally irrelevant to Bucklew. Yet Gorsuch revived the dispute in a
passage that sounds both gratuitous and defensive—a likely effort to respond to
Ray’s many critics. By doing so, he essentially invited the liberal justices to
continue to take thwacks at the court’s widely criticized action in that case.
In dissent, Breyer gladly accepted this invitation. He countered that, contrary
to Gorsuch’s assertion, Ray “brought his claim only five days after he was
notified of the policy he sought to challenge.” His lawsuit was not
“last-minute”; it was a perfectly punctual response to a new revelation.
Gorsuch shot back that Breyer simply sought to “relitigate Dunn v. Ray,” then
launched into a defense of the decision. According to Gorsuch, Ray was at fault
because he misread an Alabama statute allowing an inmate’s spiritual adviser to
“be present at an execution.” Ray should have guessed that his prison had a
secret regulation interpreting this law to exclude all but a Christian chaplain
from the death chamber. Moreover, Ray should have compelled the prison to share
this confidential rule, which he could not have known about because it was
concealed from inmates, at an earlier date.
Convinced? Neither was Breyer, who accused the majority of paying “too high a
constitutional price” to ensure Ray’s swift execution. Nor was Sotomayor, who
condemned Gorsuch’s “wholly irrelevant” suggestion “that late-occurring stay
requests from capital prisoners should be reviewed” as “presumptively suspect.”
When the court views these appeals with “an especially jaundiced eye,”
Sotomayor wrote, it makes terrible mistakes—as it did in Ray.
“Even today’s belated explanation” for the Ray decision, Sotomayor continued,
“rests on the mistaken premise that Domineque Ray could have figured out sooner
that Alabama planned to deny his imam access to the execution chamber.”
Gorsuch’s contention that Ray should have somehow divined secret prison
regulations excluding his imam remains “profoundly wrong.” Perhaps a less
rushed and skeptical assessment of Ray’s appeal would’ve persuaded the court’s
conservatives that, in fact, his constitutional rights had been flouted.
What can we glean from this war of words, which lays bare a great deal of
sniping that usually stays behind the scenes? First, it’s obvious that the
liberal justices remain incensed that the conservative majority barely bothered
to justify its decision in Ray. (Its one-paragraph decision provided virtually
no analysis.) Second, the conservatives believe the liberals misrepresented
their actions in Ray, and now—nearly two months later—seek to set the record
straight. By doubling down, though, Gorsuch only divulged the deeply flawed
logic that led the conservative majority to do what it did in Ray. At the time,
its single-paragraph order seemed callous. But perhaps its sophistic
victim-blaming was better left unsaid.
There’s a 3rd lesson here: Now that neither bloc of the court must perform
moderation in an effort to nab Kennedy’s vote in capital cases, the gloves are
off. Even before Kennedy’s retirement, my colleague Dahlia Lithwick wrote of
the “nasty tempers and bitter resentments” that emerged during oral arguments
in a 2015 death penalty case. The tension and “animosity” between the justices
was “palpable and unpleasant,” and it bled over into an acidic, acrimonious set
of opinions.
With a Kennedy vote no longer in play, and little reason for either side to
reach Kennedy-esque compromises, this dynamic will only grow worse. And with
Kavanaugh serving in Kennedy’s stead, the court has veered right on capital
punishment. Bucklew and Ray are prime examples of our new death penalty
regime—and of an era in which the liberal justices play the role of the court’s
conscience, railing in dissent against its increasingly inhuman jurisprudence.
Gorsuch may say that he does not wish to “relitigate” Ray. But the four
justices who tried to safeguard Ray’s constitutional rights are not finished
reminding their conservative colleagues what injustice their zeal for execution
has wrought.
(source: slate.com)
**************************
Federal prosecutors will not seek death penalty against northern NM compound
suspects
Federal prosecutors revealed in a court filing Tuesday that they will not seek
the death penalty against the adults who were arrested at a compound in Taos
County.
Jany Leveille, Hujrah Wahhaj, Subhanah Wahhaj, and Lucas Morton faced the
possibility of a death sentence if they were found guilty on a federal
kidnapping charge.
The death penalty was not on the table for Siraj Ibn Wahhaj. He is the father
of Abdul-ghani Wahhaj, the Georgia boy who prosecutors say was kidnapped and
was found dead at the compound. A federal law says a parent can't get the death
penalty for kidnapping their own child.
In addition to the kidnapping charge, all 5 adults face federal terrorism and
gun charges.
(source: KOB news)
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