April 2
ARKANSAS:
Drugmakers object to Arkansas execution secrecy measure
2 pharmaceutical companies objected to legislative efforts to expand the
secrecy surrounding the source of Arkansas’ lethal injection drugs, saying the
proposal would hamper their ability to ensure their products aren’t being used
for executions.
Officials with Hikma Pharmaceuticals and Fresenius Kabi USA sent letters last
month to lawmakers and the governor raising concerns about a bill that would
prohibit the state from releasing information that could directly or indirectly
identify the makers or suppliers of its lethal injection drugs. Arkansas
doesn’t have any executions scheduled, and its supply of lethal injection drugs
has expired. Prison officials have said they won’t search for replacements
until the state’s execution secrecy law is expanded to include the drugs’
manufacturers.
Both companies oppose the use of their drugs in executions, and have put
controls in place to ensure they’re not used for capital punishment.
“We are deeply concerned with efforts by any state to obscure or hide the
source of products for lethal injection,” Brooke Clarke, Hikma’s vice president
for global corporate affairs, said in a letter to House leaders. “It is
imperative that we are not impeded from protecting patient health and upholding
the protocols we have put in place to monitor the integrity of our products and
supply chain.”
Fresenius Kabi USA said it was worried about unintended consequences of such a
measure, such as drug shortages due to European Union regulations aimed at
preventing the export of drugs that would be used in executions.
“My concern is that the proposed secrecy laws in Arkansas might prevent us from
being able to audit these distribution controls and assure their
effectiveness,” John Ducker, the company’s president and CEO, said in a letter
sent to Hutchinson, as well as members of the House Judiciary Committee. “If
one of our drugs were to be used in lethal injection in Arkansas, this would
amount to a breach of our contracts, and it could have far-reaching
consequences for public health, given the European Union’s view on capital
punishment.”
The Republican sponsor of the measure said he’s not worried about any
unintended consequences.
“From my perspective, the intended consequence is to see though some
executions, and this bill will ensure that,” Sen. Bart Hester said.
Both companies in 2017 had sought unsuccessfully to prevent Arkansas from using
their drugs under an execution plan that initially called for putting 8 inmates
to death over an 11-day period. Arkansas ultimately executed 4 inmates over 8
days, after 1/2 the executions were halted by the courts.
The expanded secrecy proposal is in response to rulings from the state Supreme
Court that the current secrecy law doesn’t apply to manufacturers of Arkansas’
execution drugs. Hutchinson, a Republican who has backed the expanded secrecy
efforts, defended the proposal Friday.
“The governor has been very clear as to why this legislation is needed and that
this is a correction to the original intent of the law,” Spokesman J.R. Davis
said. “Global pharmaceutical companies do not dictate policy here in Arkansas.”
(source: WREG news)
COLORADO:
Death penalty repeal hitting major obstacles at Colorado State Capitol
An effort to repeal Colorado's death penalty has hit a major roadblock. Sources
tell FOX31 that the legislation -- which had no trouble advancing out of Senate
committees -- has been delayed several times from debate on the Senate floor
over concerns the votes aren't there for passage.
One major reason Democrats who control the chamber are uneasy about the bill is
one of their own is personally involved.
State Sen. Rhonda Fields' (D-Aurora) son was murdered by 2 of 3 men on
Colorado's death row.
Fields has been publicly critical of the bill, believing Colorado voters should
decide on repealing the death penalty instead of lawmakers.
Another major reason the measure is struggling is prosecutors have been telling
lawmakers about why they believe the death penalty is important.
While Colorado district attorneys rarely seek the sentence, the threat of death
oftentimes leads to criminals pleading guilty or helping investigators.
"Public defenders and defense attorneys come forward all the time and say, 'If
you take death off the table, we will plead guilty to 1st-degree murder,'"
George Brauchler, the 18th Judicial District Attorney, said.
Brauchler has been personally involved in lobbying lawmakers to vote no.
"You remove the death penalty from the books and you have agreed no one will
plead guilty ever again to 1st-degree murder," Brauchler said.
The death penalty repeal bill is again scheduled for debate later this week.
FOX31 will continue to follow this bill and any amendments that might be
offered to get more Democrats on board.
(source: KDVR news)
OREGON:
Oregon’s death penalty amounts to ‘cruel deception’ on families and public,
lawmakers told
Death penalty opponents told a panel of lawmakers on Monday that capital punish
is expensive, leads to decades of delays and offers little comfort to victims’
families.
The Senate Judiciary Committee heard nearly 2 hours of testimony, most of it
from supporters of Senate Bill 1013, which would limit the death penalty to
cases involving acts of terror that kill 2 or more people. The bill is expected
to get a committee vote on April 8.
“I think it has a lot of support,” said Sen. Floyd Prozanski, D-Eugene,
chairman of the committee. “We have a system that is broken. We have people who
are still on death row for 30 years.”
A bill filed last week would effectively abolish capital punishment in Oregon.
Prozanski said he plans to introduce an amendment that would allow the death
penalty in cases where the victim is under age 14 and in killings behind bars
by people with previous murder convictions.
Aggravated murder now includes crimes such as killing a child under 12, killing
more than one person, killing a police officer on duty or killing someone
during a rape or robbery. Those crimes are eligible for the death penalty.
Most crimes considered aggravated murder under current law would be
reclassified under the bill as first-degree murder and would carry a maximum
sentence of life in prison without the possibility of parole.
The proposed legislation also would change 1 of the 4 questions juries must
decide when considering whether to impose a death sentence. Under Oregon’s
system, jurors must determine that a person guilty of aggravated murder is at
risk of being a danger in the future. The bill would remove that question.
Proponents of the change say the question of someone’s potential to be
dangerous in the future isn’t based on science. That provision in Oregon’s law
is based on the Texas death penalty statute, said Aliza Kaplan, a professor at
Lewis & Clark Law School and director of the Criminal Justice Reform Clinic.
“Basically they are asking the jury to make a decision about a future event
that may or may not ever occur,” Kaplan said after the hearing. “I have always
argued that’s just bad science. What is the standard they are looking at? It’s
a really unfair question to ask of a jury.”
Oregon has a long and complicated history with the death penalty. Oregonians
voted to abolish capital punishment in 1914. It was reinstated by popular vote
in 1920, then repealed again by voters in 1964. It was reinstated in 1978 by
voters, knocked down in 1981 by the court only to be reinstated again in 1984
by voters. Oregon hasn’t executed anyone since 1997.
House Majority Leader Jennifer Williamson, D-Portland, testified that Oregon
hasn’t used capital punishment “as intended” for decades. She described it as
an expensive process underwritten mostly by taxpayers.
“In the last 55 years, we have had 2 executions and there was nothing
extraordinary about those crimes or the men who committed those crimes,” she
said. “What was extraordinary is that they volunteered. That’s how they ended
up executed.”
Stephen Kanter, a former dean and retired professor at Lewis & Clark Law
School, said the death penalty is opposed by former governors, including
Barbara Roberts, John Kitzhaber and Ted Kulongoski. Oregon Gov. Kate Brown also
opposes the death penalty and extended the moratorium imposed on capital
punishment in 2011 by Kitzhaber.
Kanter said the state should stop supporting a broken and costly system that
churns on for years and rarely results in executions.
“In some respects, this is a cruel deception on victims’ families,” he said.
“There is a cruel deception on the public. We are not going to have the death
penalty in a mass way in this state. We are not going to ever go back to
executing people on a regular basis.”
Kaplan also testified, zeroing in on the expense of capital punishment cases.
She highlighted a 2016 study done by Lewis & Clark Law School and Seattle
University that found that it costs Oregon between $800,000 and $1 million more
per case to sentence a person to death. She said most of the expense of death
penalty cases comes from the appellate process.
“Maintaining capital punishment the way we have it now is an expensive choice,”
she said.
Lane County District Attorney Patty Perlow was the lone speaker who didn’t
support the changes.
She spoke in detail about the aggravated murder cases from Lane County that
sent three men to death row. She offered disturbing details about each of those
cases cases, including the sexual assault, torture and killing in 1997 of
preschooler Tesslyn O’Cull.
“They were all killed under circumstances that I would suggest to you are
aggravated,” she said.
The longtime prosecutor encouraged the Legislature to allow voters to decide
the matter by referring the issue as a referendum.
Perlow said if the Legislature’s goal is to eliminate or restrict the death
penalty, “let’s have an honest conversation about that and refer it to the
voters.”
(source: oregonlive.com)
WASHINGTON:
Bill to abolish Washington death penalty moves forward in Olympia
It’s been on state Attorney General Bob Ferguson’s wish list for years, but
it’s looking more and more likely that a bill to abolish Washington state’s
death penalty will finally cross the finish line.
The bill to abolish the death penalty has already passed the state Senate, and
passed out of the House Public Safety Committee Monday. But the bill moves
forward with pushback from freshman Republican Rep. Jenny Graham.
This year’s effort has a lot more momentum than in years past, in part because
of the large Democratic majorities in both the House and Senate, but even more
so because of a state Supreme Court decision in October.
In that ruling, the court found Washington State’s death penalty
unconstitutional as applied.
“The death penalty is invalid because it is imposed in an arbitrary and
racially biased manner,” the justices wrote in their unanimous decision.
That left 3 possibilities: Leave it on the books as is — entirely unenforceable
after the court’s decision — or take legislative action to either fix or
abolish it.
In a House committee last week, Ferguson explained why he believes the latter
is the right move.
“Leaving an unenforceable law on the books increases the risk that we will
repeat history. Four times in our state’s history the courts have struck down
Washington’s death penalty in a similar way as just happened – as applied. The
previous 3 times, the legislature implemented fixes to the death penalty that
ultimately failed to address its arbitrary and racially biased application. I
do not think that going through that again would be something the state should
do,” Ferguson explained.
There’s been opposition to abolishing the death penalty in our state from
Republicans all along. Some want to keep it on the books, and others have tried
to include amendments that would allow it to be used in certain cases, like
when a person who is already serving life without parole kills again behind
bars.
That was the case in 2012, when convicted murderer Byron Scherf — who was
already serving life without parole — killed Monroe Corrections Officer Jayme
Biendl in the prison chapel.
Biendl’s family has adamantly opposed abolishing the death penalty for years,
saying it effectively means Scherf got away with murder. His and the death
sentence of Washington’s seven other death row inmates were commuted to life
without parole, following last year’s state Supreme Court decision.
Other critics of abolishing the death penalty argue it’s an important tool for
prosecutors who need it as leverage, and some say it’s an issue for voters, not
lawmakers.
Rep. Graham agrees the death penalty should remain an option for all of the
above reasons, and has the firsthand experience to back up her position: Her
sister Debra was one of the dozens murdered by Green River Killer Gary Ridgway.
“My sister was one of the [first] 7 cases that he was originally charged with.
He was not going to get a way out of her murder. He left the garrote tied
around her neck. The paint chips led right back to him. He knew it – he wasn’t
going to get out of it. So after that is when he ended up offering – ‘okay, I
don’t want to die myself, so I will offer you answers to all of the questions
you have, and I will lead you to the other bodies if you take death off the
table,’” Graham recalled.
But as much as that example with the Green River killer is used as an argument
for keeping the death penalty, those on the other side say it is a prime
example of how the death penalty is unfair. The question they pose: How can you
sentence someone to death for killing one person, when a man like Gary Ridgeway
— who killed more than 50 — was able to cut a deal to avoid it?
And not all victims’ families agree the death penalty should stay on the books.
Some told the House committee last week that the grueling — sometimes decade’s
long — court process is too hard on the families.
Others, say those death cases take away important prosecutorial resources.
That was the case for Theresa Matthis, whose brother was murdered in 1983.
While Matthis’ brother’s murder was not a death penalty case, the prosecutors
handling it were also dealing with a separate death penalty case at the time.
“They made it clear to my mother that she needed to understand that they had
limited resources and needed to focus them on the death penalty case. Our case
was resolved with a quick plea bargain. So while the prosecutor’s office
focused on the death penalty case my family was left with unanswered questions.
We were left with the impression that our brother’s death was unimportant comp
red with a possible death case,” Matthis explained to the committee.
Other critics argue the risk of executing even one innocent person is reason
enough to abolish the death penalty, while still others point to the cost
concerns.
Studies have estimated death penalty cases can cost roughly 1 million dollars,
which often means smaller county prosecutors can’t even afford to seek a death
sentence. For critics, that again speaks to the fairness issue.
Graham takes issue with many of those arguments, especially concerns about the
cost of seeking a death sentence.
“What bothers is me is that this is coming down to money,” Graham said in an
interview after the hearing.
“I’m sorry it’s our state’s responsibility, and it’s our personal
responsibility as state legislators to put the safety of our communities above
everything else,” she added.
Graham grilled fellow lawmakers in the committee hearing about their stance on
the bill, as well as the AG and former state Department of Corrections
Secretary Eldon Vail. Vail headed the Department of Corrections when officer
Biendl was killed but, along with several other former DOC chiefs, he supports
abolishing capital punishment.
Vail says he understands the concerns in situations like the Biendl killing,
but that even that is not enough to keep the death penalty as an option.
“There’s always exceptions but in my experience, I’ve not talked to prisoners —
and I’ve talked to a lot of them over 3 decades — who contemplated what the
sanction might be for their criminal behavior. It’s not going to slow anybody
down to think that, ‘gee, I shouldn’t do this because I might get the death
penalty,” Vail told the panel.
Graham, who says she’s heard from several corrections officers concerned about
the bill, firmly disagrees.
“If they kill another inmate or they kill a guard in prison — if there’s no
doubt at all that they did it — then on those cases, I do believe in capital
punishment. Nobody is going to tell me that that is not a deterrent. I don’t
believe that, “Graham said.
Graham also voiced strong concerns about abolishing the death penalty in favor
of life without parole, when there is already a separate bill that could
essentially eliminate the possibility of life without parole.
That bill would allow inmates to petition for early release after serving 20
years if they meet certain criteria. While that is considered dead for this
session, Graham and other Republicans suggest it could be resurrected either
this session, or in future sessions after the death penalty is abolished.
Ferguson made clear in the committee hearing he would not support that, saying
the only way he supports abolishing the death penalty is if life without parole
remains the alternative.
“I don’t love the death penalty, and if we lived in a perfect world it wouldn’t
be necessary. But we don’t live in a perfect world, and there is no place in
this world that we have a perfect justice system. I support doing whatever it
is we need to do if there is a question of somebody’s innocence,” Graham said,
pointing to advances in DNA and other technology that make it less likely the
wrong person will be convicted.
“But we can’t go the other direction either, that we just let everybody out,”
she added.
Despite her concerns, the bill to abolish the death penalty is expected to pass
in the House largely as it did in the Senate, along party lines.
(source: mynorthwest.com)
USA:
Rancor and Raw Emotion Surface in Supreme Court Death Penalty Ruling
In a 5-to-4 decision that revealed fault lines and considerable friction over
the use of the death penalty, the Supreme Court on Monday ruled that a death
row inmate in Missouri may be executed by lethal injection notwithstanding a
rare medical condition that he says will cause excruciating pain. The majority
accused the inmate of gamesmanship and delay.
The decision made clear that feelings are still raw at the court over its
5-to-4 decision in February to allow the execution of a Muslim inmate in
Alabama after his request to have his imam be present was denied, with the
majority saying he should have asked sooner. Last week, the court stayed the
execution of a Buddhist inmate in Texas in similar circumstances, over 2 noted
dissents, with the majority apparently satisfied that the request had been
timely.
On Monday, Justice Neil M. Gorsuch, writing for the majority, said the Missouri
inmate, Russell Bucklew, had waited too long to object to the way the state
planned to execute him. “Courts should police carefully against attempts to use
such challenges as tools to interpose unjustified delay,” Justice Gorsuch
wrote.
He added that the dissenting justices were “seeking to relitigate” the February
decision concerning the Muslim inmate in Alabama.
In dissent, Justice Stephen G. Breyer set out what he said was the larger
dispute, stemming from the Alabama case and carrying into the one decided
Monday.
“The prisoner’s claim — that prisoners of some faiths were entitled to have a
minister present at their executions while prisoners of other faiths were not —
raised a serious constitutional question,” Justice Breyer wrote. “And therein
lies the problem. It might be possible to end delays by limiting constitutional
protections for prisoners on death row. But to do so would require us to pay
too high a constitutional price.”
Mr. Bucklew, the Missouri inmate, was convicted of murdering a man who had been
seeing his former girlfriend, and of kidnapping and raping her. His lawyers
said his condition, cavernous hemangioma, would make him choke on his own blood
during his execution.
Justice Gorsuch wrote that the Constitution authorizes capital punishment and
that states must be able to use it without undue delays. He added that the
Eighth Amendment’s prohibition of cruel and unusual punishment bars only
needless pain.
“The Eighth Amendment does not guarantee a prisoner a painless death —
something that, of course, isn’t guaranteed to many people, including most
victims of capital crimes,” he wrote.
Justice Gorsuch wrote that Mr. Bucklew was required to propose a less painful
method of execution but had failed to do so. He added that inmates litigating
in good faith should be able to overcome that requirement.
“We see little likelihood that an inmate facing a serious risk of pain will be
unable to identify an available alternative — assuming, of course, that the
inmate is more interested in avoiding unnecessary pain than in delaying his
execution,” Justice Gorsuch wrote.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito
Jr. and Brett M. Kavanaugh joined the majority opinion.
Last year, 5 justices voted to stay Mr. Bucklew’s execution, with Justice
Anthony M. Kennedy joining the four more liberal justices to form a majority.
Justice Kennedy retired last summer, and Monday’s decision suggested that his
replacement by Justice Kavanaugh will harden divisions on the court over
capital punishment.
Earlier Supreme Court decisions have required inmates challenging lethal
injection protocols to identify available and preferable methods of execution.
“A prisoner must show a feasible and readily implemented alternative method of
execution that would significantly reduce a substantial risk of severe pain and
that the state has refused to adopt without a legitimate penological reason,”
Justice Gorsuch wrote, summarizing the earlier decisions.
Mr. Bucklew argued that the requirement should not apply to people with rare
medical conditions, but he did propose that nitrogen gas would be preferable.
Justice Gorsuch rejected that alternative. Nitrogen gas, he wrote, is not
authorized by Missouri law and had never been used to carry out an execution in
the United States. In dissent, Justice Breyer said that 3 states have
authorized the use of nitrogen gas in executions.
Justice Gorsuch wrote that Mr. Bucklew had also not proved he would suffer less
pain from nitrogen gas.
In a concurring opinion, Justice Thomas wrote that the court had made things
too complicated. The Eighth Amendment bars only the deliberate infliction of
pain, he wrote, and there was no evidence that Missouri had designed its lethal
injection protocol to hurt Mr. Bucklew.
In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia
Sotomayor and Elena Kagan, wrote that Mr. Bucklew may face an “excruciating and
grotesque” punishment.
“Bucklew cites evidence,” Justice Breyer wrote, “that executing him by lethal
injection will cause the tumors that grow in his throat to rupture during his
execution, causing him to sputter, choke and suffocate on his own blood for up
to several minutes before he dies.”
In a separate dissent, Justice Sonia Sotomayor criticized the majority’s
emphasis on addressing delays in carrying out death sentences.
“There are higher values than ensuring that executions run on time,” she 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.”
(source: New York Times)
***********************
Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion
of the modern era----The Supreme Court just tossed decades worth of Eighth
Amendment law into the wastebasket.
The Supreme Court’s opinion in Bucklew v. Precythe, which it handed down Monday
on a party-line vote, is at once the most significant Eighth Amendment decision
of the last several decades and the cruelest in at least as much time.
Neil Gorsuch’s majority opinion tosses out a basic assumption that animated the
Court’s understanding of what constitutes a “cruel and unusual” punishment for
more than half a century. In the process, he writes that the state of Missouri
may effectively torture a man to death — so long as it does not gratuitously
inflict pain for the sheer purpose of inflicting pain.
And, on top of all of that, Gorsuch would conscript death penalty defense
attorneys — men and women who often gave up lucrative legal careers to protect
the lives of their clients — into the ghoulish task of laying out the method
that will be used to kill those clients.
It’s a breathtaking sign of just how much the Supreme Court’s new majority is
willing to change — and how quickly they are willing to impose that change on
the rest of us.
Looming beneath the surface, moreover, is an even more ominous sign for anyone
who hopes that this Supreme Court will not replace decades of established law
with the Federalist Society’s wildest fantasies. In several recent oral
arguments, Trump appointee Brett Kavanaugh appeared unexpectedly sympathetic to
liberal litigants.
Bucklew was one of these cases, where Kavanaugh browbeated a lawyer defending
Missouri’s plans to potentially inflict tremendous pain during an upcoming
execution. “Are you saying even if the method creates gruesome and brutal pain
you can still do it because there’s no alternative?” the newest member of the
court asked at one point.
And yet, Kavanaugh did not simply join Gorsuch’s opinion, he wrote a separate
opinion suggesting that maybe death row inmates could be executed by firing
squad.
Monday’s decision in Bucklew, in other words, is not just a sweeping rewrite of
one of the Bill of Rights’ core provisions. It may prove to be a very real
window into the mind of Kavanaugh — and it suggests that, whatever noises
Kavanaugh makes during a hearing, he will ultimately be a reliable vote for
whatever outcome the Court’s conservative bloc prefers.
Legalized torture
The Bucklew case involves Russell Bucklew, a man who committed a brutal murder
in 1996 and was sentenced to die. Bucklew also has cavernous hemangioma, a
disease “which causes vascular tumors—clumps of blood vessels—to grow in his
head, neck, and throat.”
Missouri plans to execute Mr. Bucklew by giving him a lethal dose of the
barbiturate pentobarbital, but Bucklew fears that this drug would lead him to
effectively choke on his own tumors, causing him extreme pain and suffering in
his final minutes.
Bucklew lost any realistic chance of prevailing in 2015, when a 5-4 Supreme
Court handed down its decision in Glossip v. Gross. That decision held that the
death penalty enjoys a kind of super-legal status that protects it even from
private citizens who refuse to be complicit in executions.
Glossip arose after manufacturers of drugs commonly used in executions refused
to sell those drugs to states that wished to use them to kill someone. As a
result, many states turned to painkillers of questionable reliability which, in
Justice Elena Kagan’s words, left death row inmates with “the feeling of being
burned alive.” The inmates behind Glossip alleged that such a torturous death
amounted to cruel and unusual punishment.
This argument, however, garnered no sympathy from the Supreme Court’s
conservative majority. Justice Samuel Alito, who wrote the Glossip opinion,
dismissed the drug companies’ refusal to be complicit in executions as a
“guerrilla war against the death penalty.” His opinion held that “because it is
settled that capital punishment is constitutional, ‘[i]t necessarily follows
that there must be a [constitutional] means of carrying it out.’” And thus the
mere fact that an inmate would experience excruciating pain during his
execution was not enough to prevent that execution.
The burden, instead, fell upon the inmate to propose a different method of
execution that would be less painful. Thus, death row inmates and their lawyers
were conscripted into the task of determining how they would be killed — and
failure to do so could be punished with torture.
Much of Gorsuch’s opinion in Bucklew fleshes out the burden these inmates face,
often in gruesome detail. Bucklew’s proposed alternative method of execution —
asphyxiation by nitrogen gas — is insufficient, according to the opinion.
[Bucklew] 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.
Death row inmates must not only tell the courts how they wish to be killed,
they must offer a proposal that is “sufficiently detailed to permit a finding
that the State could carry it out ‘relatively easily and reasonably quickly.’”
Rewriting the Eight Amendment
Beyond the macabre facts of the Bucklew case, Gorsuch’s opinion also undercuts
decades of Eighth Amendment law, potentially permitting states to revive
punishments that fell out of favor 200 years ago.
Recall that the Constitution prohibits “cruel and unusual” punishments. The
word “unusual” implies that, as a particular punishment becomes less and less
common, it stands on weaker constitutional footing. Thus, as Chief Justice Earl
Warren explained in a 1958 opinion, the Eight Amendment prohibits punishments
that defy “evolving standards of decency that mark the progress of a maturing
society.”
This evolving standards test, however, presents a significant problem for
supporters of the death penalty. The number of death sentences in the United
States collapsed over the last 2 decades, strongly suggesting that executions
themselves defy evolving standards of decency that mark the progress of a
maturing society.
In total, only 25 people were executed in the United States in 2018, and only 8
states performed any executions at all. 1 state, Texas, accounted for more than
half (13) of these executions.
Yet, rather than accept the implication of this trend for the constitutionality
of the death penalty, Gorsuch responds by changing the rules.
One of the weaknesses of the Glossip opinion is that it is heavy on bold claims
that the death penalty must be allowed under the Constitution, but light on an
theoretical framework justifying this claim. Gorsuch’s Bucklew opinion tries to
provide this framework.
The Constitution allows capital punishment. In fact, death was “the standard
penalty for all serious crimes” at the time of the founding. Nor did the later
addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth
Amendment, added to the Constitution at the same time as the Eighth, expressly
contemplates that a defendant may be tried for a “capital” crime and “deprived
of life” as a penalty, so long as proper procedures are followed.
Gorsuch then surveys the kinds of punishments that would have been forbidden at
the time of the framing. “These included such ‘[d]isgusting’ practices as
dragging the prisoner to the place of execution, disemboweling, quartering,
public dissection, and burning alive, all of which Blackstone observed
‘savor[ed] of torture or cruelty.'” He adds that “by the time of the founding,
these methods had long fallen out of use and so had become ‘unusual.’”
Notice what Gorsuch just did there. He neither mentions evolving standards nor
concedes the relevance of anything that has transpired in the last 200 years.
He also redefines the word “unusual” to mean punishments that “had long fallen
out of use” at “the time of the founding,” not punishments that are uncommon
today.
That’s a simply breathtaking shift in the court’s understanding of the Eighth
Amendment which, without admitting that it’s doing so, overrules decades of
established law. Among other things, the Supreme Court relied on the “evolving
standards of decency” test in its decisions forbidding the execution of the
intellectual disabled and of juvenile offenders. Those decisions, among many
others, are now in jeopardy.
To add insult to injury, Gorsuch also takes several swipes at Bucklew’s
arguments and the arguments raised by the dissent, claiming that “his suit in
the end amounts to little more than an attack on settled precedent” — the
precedent established in Glossip. Gorsuch isn’t wrong that it’s tough to square
Bucklew’s arguments with the bloodthirsty opinion Alito handed down in Glossip.
But he hardly has standing to criticize anyone for disrespecting precedent.
Bucklew 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.
And Bucklew could represent far more than a turning point in the Supreme
Court’s understanding of just one amendment. Kavanaugh’s crocodile tears during
oral argument suggest that there is little hope that he will prove to be a
moderating force on the Supreme Court. And the majority’s willingness to cast
aside one of the most firmly established assumptions of constitutional law so
casually suggests that they will do it again.
And again.
And again.
Bucklew v. Precythe is a revolutionary opinion, and it likely portends an even
greater revolution.
(source: Ian Millhiser, thinkprogress.org)
************************
Civil rights experts question Supreme Court execution rulings
Last week, the Supreme Court ruled to block Texas’ planned execution of Patrick
Murphy, a Buddhist inmate, because he was not allowed to have his Buddhist
chaplain in the execution chamber.
While religious freedom advocates applauded the move, some say the decision
also left them perplexed. Just a month earlier, the Supreme Court allowed the
execution of Muslim death row inmate Domineque Ray in a similar circumstance.
The American Civil Liberties Union called the decision to halt Murphy’s
execution “good news.” But it criticized the court’s earlier ruling in Ray’s
case.
“People of all faiths are entitled to religious freedom,” the ACLU said in a
series of tweets. “The only real difference … is that Ray is a Muslim and
Murphy is not. The Supreme Court’s divergent rulings once again suggest that
Muslims are not treated equally.”
Sirine Shebaya, interim legal director at Muslim Advocates, applauded the
Murphy decision in a statement. But she, too, wondered why the two cases had
produced different outcomes.
“In both cases, a state wrongly tried to ban an inmate’s chosen religious
representative while allowing chaplains of other religions to be present,”
Shebaya said. “Yet, the outcomes were so different as one plaintiff was a
Muslim and the other was not.”
Ray said his religious freedoms were being violated because he was not allowed
to have his imam by his side during the execution, though a Christian chaplain
would have been allowed.
Shebaya said the decision to allow his execution showed a “double standard” and
an “inexplicable indifference to the rights of Muslims.”
In Ray’s case, the court voted 5-4 along partisan lines to allow his execution
to proceed. Justice Brett Kavanaugh voted with the majority, saying his
decision was because the inmate filed for a review too late.
Ray’s execution date had been set in November, and Ray did not make his appeal
until Jan. 28. But Justice Elena Kagan noted that Ray could not possibly have
sought relief any earlier — Ray’s request to have the imam in the execution
chamber was only denied Jan. 23. And while Ray filed 10 days before his
scheduled execution, Murphy filed 2 days before his.
Still, in Murphy’s case, Kavanaugh sided with the court’s liberal justices. His
brief, concurring opinion highlighted both the appeal’s “sufficiently timely
manner” as well as the court’s obligation to prevent “governmental
discrimination against religion.”
“Where was this belief when the Alabama case went before the Supreme Court?”
the Baptist Joint Committee for Religious Liberty wondered in a statement.
“Kavanaugh leaves open the possibility that the state will simply disallow all
clergy in the execution chamber, which would be a cruel outcome in its own
right. But religious preferentialism only compounds the problem.”
In an article for ThinkProgress, Justice for Muslim Collective co-Director Maha
Hilal argued that Kavanaugh’s reading of the Constitution was “selectively
applied.” A black Muslim man like Ray, she said, apparently did not deserve a
generous understanding of religious liberty; Murphy, a white Buddhist man, did.
“The issue of ‘process’ and ‘procedure’ used to deny Ray of a spiritual adviser
in the death chamber was nothing more than a thinly veiled disguise to the
overt anti-blackness and Islamophobia at play,” Hilal argued.
In the past, the Supreme Court has ruled in favor of Muslims seeking relief for
religious discrimination. In 2015, the court issued a nearly unanimous ruling
in favor of a woman who was denied a job at Abercrombie & Fitch because she
wore a hijab. The same year, it unanimously ruled that Arkansas had violated a
Muslim inmate’s religious freedom by denying him the right to grow a short
beard as part of his religious practice.
In a blog post last week, George Mason University law professor Ilya Somin
suggested that the justices had likely heard the public outcry after they
lifted the stay on Ray’s execution and sought to rectify their mistake.
The justices “belatedly realized they had made a mistake … that inflicted real
damage on their and the Court’s reputations,” Somin wrote on Reason’s Volokh
Conspiracy blog. “Presented with a chance to ‘correct’ their error and signal
that they will not tolerate religious discrimination in death penalty
administration, they were willing to bend over backwards to seize the
opportunity, and not let it slip away.”
Georgetown University law professor Marty Lederman, who focuses on
constitutional law, and lawyer Deepak Gupta, who has represented several
plaintiffs before the court, agreed that public opinion likely had some sway.
“The wholly justified, across-the-board condemnation of the SCOTUS’s
indifference to religious discrimination in the execution chamber last month
obviously had an impact,” Lederman wrote in a tweet.
“This is how the Supreme Court tries to erase a very recent and obvious moral
error without admitting error,” Gupta wrote in another. “Is the Alabama case
materially different? They don’t say.”
(source: religionnews.com)
*********************
Death row inmates not guaranteed a 'painless death,' Supreme Court rules
The Supreme Court made it clear on Monday that the U.S. Constitution does not
guarantee a prisoner sentenced to capital punishment "a painless death," paving
the way for the execution of a convicted murderer who sought to die by lethal
gas rather than lethal injection because of a rare medical condition.
Russell Bucklew, 50, had argued that lethal injection might inflict undue agony
by rupturing blood-filled tumors on his body caused by a congenital condition
called cavernous hemangioma in violation of the Constitution's Eighth
Amendment, which bars cruel and unusual punishment.
In a decision written by conservative Justice Neil Gorsuch, the court ruled 5-4
that Bucklew had failed to present enough evidence for them to let him ask a
lower court to allow him to be executed by lethal gas. The court's 5
conservatives were in the majority and its 4 liberals dissented.
Referencing the history of capital punishment, Gorsuch wrote that "the Eighth
Amendment does not guarantee a prisoner a painless death - something that, of
course, isn't guaranteed to many people, including most victims of capital
crimes."
Monday's ruling was in line with a decision from 2015 in which the court
rejected a challenge to Oklahoma's method of execution by lethal injection on a
5-4 vote. In that case, the court held that inmates challenging a method of
execution had to come up with an alternative option that was less painful.
There was no evidence that Bucklew's chosen alternative - lethal gas - would be
any less painful, said Gorsuch, who was appointed to the court by President
Donald Trump in 2017.
Gorsuch noted that Bucklew is awaiting execution for crimes committed more than
2 decades ago.
"Yet since then, he has managed to secure delay through lawsuit after lawsuit,"
Gorsuch wrote.
The case did not challenge the constitutionality of the death penalty itself as
a violation of the Eighth Amendment. The court has curbed the death penalty as
applied to juveniles and mentally disabled people, but there are no signs that
the conservative majority is inclined to find that capital punishment is
unlawful.
'NO CONSTITUTIONAL WAY'
Liberal Justice Stephen Breyer in a dissenting opinion repeated his assertion
first raised in the 2015 case that if prisoners cannot be executed quickly
without violating their rights "it may be that ... there simply is no
constitutional way to implement the death penalty."
In Missouri, execution is authorized using either injection or gas but the
state in practice uses only lethal injection.
Bucklew's appeal neither contested his guilt nor sought to avoid execution.
Lawyers for the state have said that although lethal gas is authorized, it has
never been used and there are no protocols for it.
The high court in March 2018 blocked Bucklew's execution on a 5-4 vote, with 4
of the court's 5 conservative justices voting to deny the request. The
conservative justice who voted with the court's 4 liberals to grant the stay,
Anthony Kennedy, has since retired and was replaced by President Donald Trump's
appointee Brett Kavanaugh.
Bucklew was convicted of the 1996 murder in southeastern Missouri of Michael
Sanders, who was living with Bucklew's former girlfriend Stephanie Ray at the
time. Bucklew fatally shot Sanders at his trailer home, kidnapped and raped
Ray, shot at Sanders' 6-year-old son and wounded a police officer before being
apprehended, according to court papers.
Bucklew's condition has caused large, blood-filled tumors to grow on his face,
head, neck and throat, according to court papers.
The Supreme Court last week blocked the execution of a Texas inmate whose
request that his Buddhist spiritual adviser be present at the execution had
been denied by the state.
That came just weeks after the court rejected on a 5-4 vote a similar request
from a Muslim inmate in Alabama, saying he had waited too long to file his
lawsuit.
(source: Reuters)
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