Monday, July 21, 2014

Death Penalty on the Skids

Two big stories in the past week regarding the DP:

Court Delays Execution over Secrecy With Drugs:

A federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team. 

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. 

“This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law. 
The notion that where the junkies (er, states) are obtaining their drugs from are "state secrets" in need of protection from the public is ludicrous, as I've written for several years now. But it is interesting that this is the first appellate-level decision to recognize the insanity behind so-called secrecy laws.
On Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. 

Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.” 

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”
For those of you with short memories, Judge Bybee is the same guy who advocated for torture in the infamous "Bybee Memos" (sometimes called "The Torture Memos") during the Bush years. He has also been the subject of discussion regarding his impeachment and removal from the bench over the years.

Regardless, Judge Thomas's opinion recognizes the ongoing debate over the efficacy of the death penalty in the 21st century, including the recent take down by a federal judge of California's death penalty system.
“How has it gone on this long?” Justice Antonin Scalia asked a lawyer for the State of Florida during oral arguments in March on a condemned inmate’s appeal. The legal issue in that case had to do with how states define intellectual disability, but Justice Scalia was troubled that Freddie Lee Hall had been on Florida’s death row for more than three decades. 

In that same session, Justice Anthony Kennedy noted that the last 10 people executed by the state had spent an average of 24.9 years on death row.

“Do you think that that is consistent with the purposes of the death penalty,” Justice Kennedy asked the state’s lawyer, “and is it consistent with sound administration of the justice system?”

Last Wednesday, in an unrelated case, a federal judge in California answered that question with a resounding no. The state’s death-penalty system is “so plagued by inordinate and unpredictable delay,” wrote United States District Judge Cormac Carney, that it violates the Eighth Amendment’s ban on cruel and unusual punishment. 

In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones, who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge Carney, an appointee of President George W. Bush, pointed out that of the more than 900 people California has sentenced to death since 1978, 13 have been executed. More than 40 percent of the rest have been on death row for at least 19 years, and the backlog is growing.
Carney's opinion is, of course, just one district judge's opinion. It could easily be overturned at the appellate level or even by the Supreme Court, which itself has said that 20 years or more on death row does not constitute cruel and unusual punishment (Knight v. Florida, 1999).

And the get tough types are immediately pushing back against both decisions. Arizona's response, for example, to the secrecy injunction:
But Arizona officials were not backing down. On Sunday, the state appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary. 
And over at my favorite pro-death penalty blogger's site:
The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.
In other words, blame everyone else for the failings of a system you advocate for but yourself and your ilk. Even funnier is their proposed "Miranda-like" solution to speeding up the appellate process and gettin' folks dead (all the while, decrying Miranda as "lawless"). The, uh, "logic" of the pro-dp side never fails to amaze.

At the end of the day, neither of these decisions portends the end of the death penalty as we know it in the United States. But if California were to take the extraordinary step of getting rid of its apparatus of death, the trend towards abolition would undoubtedly accelerate. And under Trop, the death penalty may indeed fall at the SCOTUS level, even given the current makeup of the court.

Cross Posted to: The Cranky Sociologists

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