Thursday, April 30, 2015

A 2015 Furman Decision?

Supreme Court Hears Oklahoma Lethal Injection Case:

The United States Supreme Court Wednesday morning heard oral argument about the lethal injection procedures Oklahoma wants to use on the condemned. The argument was supposed to focus on whether the method prison officials now use — a cocktail that generated a botched execution exactly one year ago of a man named Clayton Lockett — violates the Eighth Amendment rights of prisoners to be free from “cruel and unusual” punishment.

What the argument actually did focus on, for long stretches of time, was the concern expressed by Court conservatives that they are being bullied by what Justice Samuel Alito called the “guerilla” tactics of the capital abolitionist movement. Below is a seven-page passage from today’s argument, a particularly ferocious debate that highlights the extent to which the justices are divided on one of capital punishment’s freshest and most litigated issues: how (and not whether) the state can lawfully kill.
More from the Times:
“Let’s be honest about what’s going on here,” Justice Samuel A. Alito Jr. said. “Executions can be carried out painlessly.”

He added, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla 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?”
The level of stupidity evident in this line of questioning is hard to comprehend. The efforts to make it more difficult for states to obtain lethal injection sedatives is a clear sign the country, state by death penalty state, is moving against the death penalty.

Unless you're Sam Alito, that is. Then, because you like executing people, this is just "guerrilla warfare" by death penalty "abolitionists."

Sidebar: keep in mind this is the same justice who, Tuesday during orals on the constitutionality of same-sex marriage, asked  "suppose a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?" Apparently, same-sex marriage equals polygamy (or foursomes of a non-golf nature) in Sam's world.

Sidebar 2: there are several, pivotal milestones in a person's intellectual development worth considering, and I remember my own well. 1. realizing you're smarter than the Vice President of the United States (for me, 1989). 2. realizing you're smarter than the President of the United States (2001). 3. realizing you're smarter than a Supreme Court justice (2006, Alito's confirmation).

Back to the issue, Kennedy's silence was rather interesting yesterday. As Reuters notes "Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals," which is true, but he said nothing to suggest he'd side with the conservatives either.

This case reminds me of Roper v. Simmons from a decade ago when, out of nowhere, Kennedy joined the four liberals and did away with the death penalty for juveniles under 18. 

If he were to side with the four liberals now, and using the Trop test, decide Oklahoma's lethal injection scheme unconstitutional (the same scheme being used in several other states who are now scrambling to keep death alive), then the death penalty as administered could certainly fall, ala Furman v. Georgia in 1972. 

I'm not predicting such a sweeping outcome (in fact, virtually none of the death penalty experts in this article predict anything meaningful), but maybe the conservative justices were as freaked out as they were yesterday because they suspect something. 

And as this Times article notes, it's going to have to come from the Supreme Court because the Obama administration, in one of Eric Holder's last and ignominious acts as attorney general, dropped the ball on pushing for a federal ban on executions. And to piggyback on what I wrote two days ago, about crime as political capital, despite all the feel-good rhetoric about criminal justice reform, not one presidential candidate is running on ending the death penalty.

So back to the court. As Mark Halperin said, "It took 17 years -- from 1988 to 2005 -- for the court to see that executing juvenile offenders was wrong. It took 13 years -- from 1989 to 2002 -- for a pro-death penalty Supreme Court to decide executing someone with mental disabilities is wrong. We're now at a point where a lot of people can really see an end to this."

The case is Glossip v. Gross (2015), decision by June.

UPDATE: This Slate piece depicts how nasty the arguments got between the justices...so bad the Chief had to put everyone in Time Out by the end of the hour and declare sine die on the whole sordid term.

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