Friday, June 19, 2015

SCOTUS, the Death Penalty, and Solitary Confinement

Two interesting decisions yesterday from the court on the death penalty, one against a death row inmate challenging his conviction on a violation of the Batson rule, and one in favor of a death row inmate challenging his conviction on a violation of the Atkins rule.

In a 5-to-4 decision, the court ruled that a death row inmate in Louisiana was entitled to a hearing to determine whether he is intellectually disabled, and so may not be executed.
The case, Brumfield v. Cain, No. 13-1433, concerned Kevan Brumfield, who was sentenced to death in 1995 for killing Betty Smothers, a Baton Rouge police officer. Seven years later, in Atkins v. Virginia, the Supreme Court barred the execution of the intellectually disabled.

Justice Sonia Sotomayor, writing for the majority on Thursday, said that Mr. Brumfield’s I.Q., of 75, and his difficulties with learning and performing ordinary tasks were enough to raise reasonable doubts about his intellectual capacity. Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the majority opinion.

Justice Clarence Thomas filed an impassioned dissent that set out in detail the horror of the crime and its devastating impact on Ms. Smothers’s family. He took the unusual steps of posting Mr. Brumfield’s videotaped confession on the Supreme Court’s website and of including a photograph of Ms. Smothers in an appendix to his opinion.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined most of Justice Thomas’s dissent. But they did not join a portion discussing Warrick Dunn, Ms. Smothers’s eldest son, who became a football star.
If you want further evidence suggesting that Thomas, probably the more ignominious appointment ever to the court, is really slipping the bonds of reality, read his dissent, almost none of which as anything to do with the case, facts or finding of the court, and everything related to personal blood lust and retributive tantrum.

In the second case which conservatives prevailed,  
"the court ruled against a death row inmate in California who said prosecutors had acted improperly in using peremptory challenges to exclude all seven black and Hispanic potential jurors from his trial. The trial judge allowed prosecutors to supply benign explanations for the challenges in a hearing outside the presence of the defense lawyers.

Justice Alito, writing for the court’s five more conservative members, said the challenges were “sufficient to raise suspicions about the prosecution’s motives.” He added that excluding defense lawyers from the discussion while prosecutors explained themselves might have violated the constitutional rights of the inmate, Hector Ayala, who was convicted of triple murder.

But any errors were harmless, Justice Alito wrote, because there was no good reason to think Mr. Ayala’s lawyers would have persuaded the judge to reject the prosecutors’ reasons.

Justice Sotomayor, joined by the court’s other liberal members, said “little doubt exists that counsel’s exclusion” from the hearing “substantially influenced the outcome.”
It seems like a fairly typical outcome, and the opinions and dissent are rather boring to read, until you get to the concurrence filed by Kennedy, unrelated to the case, and totally related to the constitutionality of solitary confinement.
Justice Kennedy filed an unusual concurrence, one he acknowledged had “no direct bearing on the precise legal questions presented” in the case, Davis v. Ayala, No. 13-1428. It was, instead, an extended attack on solitary confinement prompted by a remark from a lawyer when the case was argued. “Years on end of near-total isolation exacts a terrible price,” Justice Kennedy wrote.
From the concurrence:
The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators.  One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death,solitary confinement bears “a further terror and peculiar mark of infamy.”

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.
There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons." There is truth to this in our own time.
It's quite a shot across the bow, suggesting, as in several juvenile cases recently related to extended life sentences, etc. that there may be a growing coalition of justices willing to look at solitary again and perhaps do away with it. 

Well, except Clarence Thomas, who even in this concurrence, had to get in a three sentence concurrence/tantrum of his own to state:
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 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.
Talk about a straw man, germane and appropo to absolutely nothing. It's a helluva thing when even the other conservatives on the court (particularly buddy Scalia) are shying away from you like the crazy old uncle.

The cases are Davis v. Ayala (2015) and Brumfield v. Cain (2015).

UPDATE: an alert reader emailed to note that Thomas crossed over from the conservatives on Monday, joining with the four liberals to allow Texas to ban the Confederate Battle Flag emblem from its license plates in a 1st amendment case. This is particularly prescient, given the shooting of nine black church goers in Charleston yesterday (the alleged shooter is a white supremacist).

Perhaps there's hope yet for Justice Thomas.

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