#Glossip v. Oklahoma

[justinspoliticalcorner]

Gabe Fleisher at Wake Up To Politics (10.07.2024):

This morning also marks the beginning of the Supreme Court’s 2024-25 term, which will be the focus of today’s newsletter. The court’s last term was marked by highly charged political cases, several of them decided with the six conservative justices in the majority and the three liberal justices in the minority, including Trump v. United States (which set the standard for how presidents can and can’t be prosecuted) and Loper Bright Enterprises v. Raimondo (which significantly reduced the power of the regulatory state). The court also weighed in on disputes over racial gerrymandering and bump stocks for firearms (also along the same 6-3 battle lines), as well as cases involving January 6th, social media, abortion pills, opioids, pollution, and Donald Trump’s eligibility to run for the White House (all of which were decided along more mixed ideological lines). [...]

That’s the context in which the nine justices will appear from behind the bench this morning to hear their first oral arguments of the term at 10 a.m. ET. The term ahead does not — yet — have as many controversial cases on the docket, but there are still several high-profile disputes. Here are some of the key cases to watch this term:

United States v. Skrmetti: After years of the issue roiling the country, this will be the Supreme Court’s first formal foray into adjudicating transgender health care. The case stems from the federal government’s challenge to a Tennessee law banning puberty blockers, cross-sex hormones, and gender-transition surgeries for minors. The court’s decision will have broad national ramifications, likely carrying over to the 24 other states with similar prohibitions on the books.

Garland v. VanDerStok: Like last term, which included multiple gun control cases, the Supreme Court will take up another Biden administration gun regulation later this week. This one involves “ghost guns,” firearms that are put together with kits at home — and therefore don’t have serial numbers and are untraceable by authorities. In 2022, the Justice Department unveiled a rule requiring vendors who sell ghost guns to treat them as fully completed firearms; gun rights groups are now challenging the regulation.

Free Speech Coalition, Inc. v. Paxton: Another hot-button culture war issue is at the center of this case, which involves challenges to a Texas law requiring pornographic websites to verify their users’ ages. The Free Speech Coalition, a trade association for the adult entertainment industry, is arguing that the law violates their First Amendment rights, while Texas says the statute protects children. As in 10 other states with similar laws, the site Pornhub has opted to block access to users in Texas rather than comply with the requirements.

Other cases involving the death penalty, nuclear waste, and vaping are also poised to reach the court.

SCOTUS will have some big cases on the docket this term:

United States v. Skrmetti (gender-affirming care)

Garland v. VanDerStok (ghost guns)

Free Speech Coalition v. Paxton (age verification)

[thetourguidebarbie]

Not to be a law nerd on main but listening to the oral argument in Glossip v OK and if Justice Kagan looked at me from the bench and said the polite version of "counsel, can you even read?" I would kill myself on the spot

[mariacallous]

so what's next in American Judicial Antics? 5th circuit issuing a nationwide injunction requiring everyone to vote for trump? SCOTUS ruling that corporations have a constitutional right to poison the water?

Here's the cases SCOTUS agreed to hear (so far) and will issue rulings on by next June:

Williams v. Washington, No. 23-191

Issue(s): Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.

Glossip v. Oklahoma, No. 22-7466

Issue(s): (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Garland v. VanDerStok, No. 23-852

Issue(s): (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.

Lackey v. Stinnie, No. 23-621

Issue(s): (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under Section 1988.

Bufkin v. McDonough, No. 23-713

Issue(s): Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the court to “take due account” of the Department of Veterans Affairs’ application of that rule.

Royal Canin U.S.A. v. Wullschleger, No. 23-677

Issue(s): (1) Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.

Medical Marijuana v. Horn, No. 23-365

Issue(s): Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.

Bouarfa v. Mayorkas, No. 23-583

Issue(s): Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.

City and County of San Francisco v. Environmental Protection Agency, No. 23-753

Issue(s): Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.

Delligatti v. U.S., No. 23-825

Issue(s): Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Advocate Christ Medical Center v. Becerra, No. 23-715

Issue(s): Whether the phrase “entitled ... to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.

Facebook v. Amalgamated Bank, No. 23-980

Issue(s): Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.

E.M.D. Sales v. Carrera, No. 23-217

Issue(s): Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence or clear and convincing evidence.

Kousisis v. U.S., No. 23-909

Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

NVIDIA Corp. v. E. Ohman J:or Fonder AB, No. 23-970

Issue(s): (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

Wisconsin Bell v. U.S., ex rel. Todd Heath, No. 23-1127

Issue(s): Whether reimbursement requests submitted to the Federal Communications Commission's E-rate program are “claims” under the False Claims Act.

Feliciano v. Department of Transportation, No. 23-861

Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

Republic of Hungary v. Simon, No. 23-867

Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.

Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975

Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

Dewberry Group v. Dewberry Engineers, No. 23-900

Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

Stanley v. City of Sanford, Florida, No. 23-997

Issue(s): Whether, under the Americans with Disabilities Act, a former employee — who was qualified to perform her job and who earned post-employment benefits while employed — loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job.

U.S. v. Miller, No. 23-824

Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.

U.S. v. Skrmetti, No. 23-477

Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.

[tanadrin]

in general, whenever the rights of prisoners or even just the accused come before SCOTUS, the resulting jurisprudence is like the goatee universe version of what you want out of legal reasoning: how can we break and squeeze and twist the law so that regardless of the plain text of the constitution it affords the minimum amount of humanity and dignity to the people we have abject in our power.

glossip v. gross isn’t just a bad decision; it is the law as grand guignol, a hideous spectacle of old people in robes playing semantic games so that the governor of oklahoma can be allowed--nay, required--to torture a man to death. and scalia is so fucking glib about it. he can’t even take this shit seriously; he just has to get in one more jibe at his colleagues, because that’s all this is to him. politics and theory. the fact there’s a real human being involved (to say nothing of the fact this man is almost certainly innocent of the crime for which his fatal torture has been decreed) is totally irrelevant to him. christ, what a piece of shit that guy was!

[cheerfullycatholic]

Richard Glossip has consistently maintained his innocence while on death row for the last 25 years. Last week Oklahoma Attorney General Gentner Drummond acknowledged that Mr. Glossip did not receive a fair trial. Citing evidence of serious prosecutorial misconduct revealed by an independent review of Mr. Glossip’s case, Attorney General Drummond asked the Oklahoma Court of Criminal Appeals to call off Mr. Glossip’s execution, vacate his conviction, and grant him a new trial. Mr. Glossip was convicted in 2004 for his alleged role in the 1997 murder of Barry Van Treese, the owner of a motel where Mr. Glossip worked. No physical evidence linked Mr. Glossip to the crime and he has maintained his innocence. The independent review found that the state repeatedly failed to provide—and even destroyed—substantial evidence in the case. The case against Mr. Glossip centered around the testimony of then 19-year-old Justin Sneed, but the review revealed that Mr. Sneed had been diagnosed with bipolar disorder and prescribed lithium while in jail. In his testimony he denied ever seeing a psychiatrist and Mr. Glossip’s attorneys were not made aware of his condition. “The state’s murder case against Glossip was not particularly strong and would have been, in my view, weaker if full discovery had been provided,” Rex Duncan, the appointed counsel who reviewed the case, wrote. Since 2004, Mr. Glossip, who is now 60, has been scheduled for execution nine times and has on more than one occasion come within hours of being put to death only to be granted a temporary stay. He has been served three final meals. In 2015, in the case of Glossip v. Gross, the United States Supreme Court rejected his challenge to the constitutionality of Oklahoma’s lethal-injection protocol, permitting the state to execute him. “It is critical that Oklahomans have absolute faith that the death penalty is administered fairly and with certainty,” Attorney General Drummond wrote in his motion. “Considering everything I know about this case, I do not believe that justice is served by executing a man based on the testimony of a compromised witness,” he added. Mr. Glossip remains scheduled for execution on May 18 as he awaits a ruling from the district court following Attorney General Drummond’s motion to vacate his sentence.

[antoine-roquentin]

Julie Hall smiled on the witness stand as she recalled a memory of her old client Joseph Wood. He had spent most of the last two decades living in solitary confinement, with his recreation confined to a cage, when the Arizona Department of Corrections began to loosen some restrictions over people on death row. A basketball court was built outside his unit on the sprawling desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood was relatively healthy — “he loved going out and playing,” Hall said. A prison sergeant even played a round of basketball with Wood, which meant a lot. “He felt like he was being treated like he was human for the first time in a long time.”

Hall’s smile disappeared when she described the day Wood died. It was July 23, 2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that morning at 6:45, then waited almost an hour to see him. When the Arizona Supreme Court granted a temporary stay of execution, Hall told him the good news. Wood was prepared to die, she told the court; ever since he committed the murders that sent him to death row, he had felt he did not deserve to live. Still, “he wanted someone to listen to us when we said that this was an experimental method of execution.”

Wood was the first to face a new form of lethal injection in Arizona that used a combination of the opioid hydromorphone and the sedative midazolam. The latter had raised controversy over its use in executions. Florida first tried it in 2013 to kill a man named William Happ “in what seemed like a labored process,” according to one media witness. Happ “remained conscious longer and made more body movements after losing consciousness” than people executed under the old formula, according to another report. The Florida Department of Correction, which refused to say how it chose the drug, dismissed the concerns — and soon other states were trying out midazolam. In January 2014, Ohio used it to execute Dennis McGuire. Witnesses described how he struggled and gasped, clenching his fists and striving to breath. A few months later, in April 2014, Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious botched executions in recent memory.

But Arizona stuck to the plan. By noon that day, Wood’s stay of execution had been lifted. Prison staff provided Hall with a pencil and paper and led her to the witness chamber. No phones were allowed. Once inside, she was told, she would be forbidden from leaving the room. Hall watched as a pair of TV monitors were turned on above the closed curtains. “That’s where we could view the insertion of the IV lines,” she explained. Hall was surprised at the amount of blood she saw — some of it dripped onto the floor. With the IVs eventually placed, the monitors went dark. The curtains opened. Wood lay strapped to the gurney, thick straps over his arms and a white sheet covering his legs.

At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about to start.

After five minutes, with the first dose of midazolam presumably administered, a man entered to conduct a consciousness check on Wood. The voice came back to announce he was sedated. But three minutes later, Hall said, “I saw a quiver in his cheek, which surprised me a little.” She didn’t know whether it was normal or not. It was two minutes after that when she saw Wood gasp for air. Then he did it again. And again.

“He just kept gasping,” Hall said. She began counting the gasps on her notepad. After 20 minutes and 134 gasps, she stopped counting. “I just didn’t know what the point was anymore.” Hall struggled to describe what it looked like. It reminded her of a fish that was dying after being pulled from the water — “that opening of the mouth; trying to get air and just not getting it.”

At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit, who was seated behind Hall, passed her a note. “Go now,” it said, instructing her to call their colleagues in Phoenix. Hall hurried out of the witness room and asked a guard if she could use his phone. He refused, then escorted her outside of the death house, through a maze of sally ports and checkpoints, and finally, out to the administration building. It took nine minutes. Only then was Hall able to make a call, to tell someone that “something was going very, very wrong and it looked like Mr. Wood was suffering.”

Hall was still on the phone when Wood was finally declared dead at 3:53 p.m. The next day, media witness Michael Kiefer published his own account of Wood’s struggle to breathe. Over the two-hour execution, he reported, Wood gasped more than 640 times.

Hall told her story in fits and starts, answering questions in a courtroom in Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur’Rahman v. Tony Parker, a trial over Tennessee’s lethal injection protocol. Parker is the head of the Tennessee Department of Correction, or TDOC. The named plaintiff is one of 33 men facing execution under a new formula that includes midazolam. Three have been scheduled to die by the end of the year. One of them, Billy Ray Irick, is set for execution on August 9.

Hall was one of more than 20 witnesses called by the plaintiffs, including some dozen defense attorneys who had witnessed their clients’ executions. They dramatized what lawyers argued in their trial brief: that Tennessee’s new protocol violates the Eighth Amendment ban on cruel and unusual punishment. First issued in January, it called for the injection of three drugs: midazolam, followed by a paralytic called vecuronium bromide, and culminating with potassium chloride to stop the heart. With midazolam chosen to provide anesthesia, the attorneys argued it was not only possible but very likely their clients would suffer. What’s more, they said, the protocol prevents defense attorneys from having access to a phone during the execution, in violation of their clients’ constitutional rights.

The witnesses described executions in Alabama, Arizona, Arkansas, Ohio, Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts ranged from subtle but unusual movement on the gurney to gasping, lurching, and clenching of fists. They were bolstered by leading medical experts who explained the scientific reasons why midazolam was inadequate to provide anesthesia.

One pathologist presented evidence that had never been shown in court. He had reviewed 27 autopsy reports out of the 32 total executions carried out using midazolam. In most of the cases, he found signs of pulmonary edema — fluid in the lungs that indicated the men had been in respiratory distress. The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers — and that Tennessee might be ready to do the same.

After weeks of testimony, a ruling came quickly, on July 26. It sided with the state. In her order upholding Tennessee’s lethal injection protocol, Davidson County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to prove their case, while acknowledging that the use of midazolam might leave them vulnerable to pain during their execution. The U.S. Supreme Court was “aware of the risk of midazolam,” she wrote, and upheld it anyway in Glossip v. Gross. Though “dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions.”

For anyone who has followed the legal evolution of lethal injection, Lyle’s ruling was not a surprise. The decision ultimately turned not on midazolam, but on a different provision of Glossip. Under the ruling, the plaintiffs had to prove not only that Tennessee’s protocol was cruel and unusual, but that there was a viable alternative. In her dissent in Glossip, Supreme Court Justice Sonia Sotomayor decried this “surreal requirement,” one that puts attorneys in the perverse position of identifying methods that should be used to kill their clients. Though Lyle conceded that this law “seems odd,” the requirement was clear. “That proof has not been provided in this case.”

Decisions in chancery court have limited sway. Under Tennessee’s Declaratory Judgment Act, Lyle’s ruling amounts to a “declaration” — an opinion that can only be weaponized by bringing it to a different forum. Most lethal injection challenges are brought before federal courts that have the power to stop executions. Lyle did not. In bringing the lawsuit in chancery court, Federal Public Defender Kelley Henry hoped to win a ruling that could influence the state Supreme Court or governor to intervene.

Yet the order belies the significance of the trial itself. As Henry said in her closing argument on July 24, it was the first time a three-drug protocol using midazolam had been the subject of a “real trial.” Until now, most hearings on midazolam were on whether to grant a preliminary injunction to stop a looming execution. Such hearings are rushed by their nature — witnesses often appear by Skype. This was not the case in Nashville. Though the trial moved quickly, the testimony was extensive and nuanced, providing a much fuller picture of the science behind the drugs used in lethal injection. Lyle was deliberate and measured — and cautious not to allow witnesses to testify beyond their expertise.

The questionable analysis of expert witnesses has had major consequences where lethal injection is concerned. At the preliminary injunction hearing that paved the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled opinions divorced from scientific reality. Among his claims was that 500 milligrams of midazolam — the same dose as in the Tennessee protocol — would render someone unconscious to the point that they would not feel pain. Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court, 16 professors of pharmacology cited the “overwhelming scientific consensus” that midazolam was incapable of inducing the “deep comalike unconsciousness” called for in lethal injection. On the eve of oral arguments in Glossip, the case was embroiled in controversy over the revelation that Evans had relied on sources like the website Drugs.com.

There is “no debate around midazolam,” anesthesiologist Dr. David Lubarsky told the court in Nashville. Among such experts, Evans has no credibility. But among prosecutors intent on carrying out executions, Evans remains a useful and willing witness, “recognized by numerous state and federal courts,” as Deputy Attorney General Scott Sutherland told the court. If anyone lacked credibility, he suggested, it was the “highly biased” defense attorneys who watched their clients’ executions, he said, quoting a 6th Circuit ruling over Ohio’s lethal injection protocol. As a more authoritative source, Sutherland offered the official department of correction records from 19 executions carried out using midazolam in Arkansas, Florida, and Ohio. Many of them were described as problematic, but these records showed everything had gone fine, he said....

Henry pushed back against the state’s argument that the true effects of large quantities of midazolam are unknown since there have been no “human experiments” to collect data. “Unfortunately, we do have human experiments,” she said. “We have 32 human experiments. Men who were executed using a protocol that involves midazolam.”

Sutherland began by invoking the gruesome crimes for which the plaintiffs had been convicted. “These facts provide context for this court as to why we are here,” he said.

With a low voice that was sometimes hard to hear, Sutherland wore a look of mild irritation — and the slightly casual air of a man who knows the law is on his side. He quoted Justice Samuel Alito’s reasoning in Glossip: “Capital punishment in this country is constitutional, and it follows, necessarily, that there must be a constitutional means of carrying it out.” The Constitution does not require a painless execution, Sutherland went on. It only prohibits the deliberate infliction of torture, such as disembowelment or being burned alive. What’s more, “in the history of its existence,” the court “has never invalidated a state’s chosen method of execution as cruel and unusual punishment.” As for midazolam, there was nothing new to discuss.

Sutherland seized on the main problem with the plaintiffs’ lawsuit. They argued in favor of a one-drug protocol using the barbiturate pentobarbital, a formula used by states like Texas. But they showed no proof that pentobarbital was available, he said. Instead, they argued that TDOC never made an effort to procure it. This was not true, Sutherland said, but regardless, “it’s not our burden to prove that it’s unavailable.” The plaintiffs had to prove that it was....

On the stand in 2003, Heath explained that if the first drug in the protocol, sodium thiopental, was not adequately administered, the pancuronium bromide would cause suffocation while creating a “chemical mask,” concealing any evidence of the excruciating burning pain that would result from the injection of the third drug, potassium chloride. Lawyers called a woman named Carol Weihrer, who described her terror during eye surgery in 1998, when she woke up while under the effect of pancuronium bromide and was paralyzed, unable to alert her doctors.

Presiding over the 2003 hearing was Ellen Hobbs Lyle, the same judge who handed down the ruling last month. On June 1, 2003, Hobbs sided with the state, concluding that lawyers for the condemned had failed to prove that Tennessee’s protocol was unconstitutional. But she was critical of the lack of research behind the protocol — and particularly pointed in criticizing Pavulon, “a drug outlawed in Tennessee for euthanasia of pets.” It served no purpose except to give “a false impression of serenity to viewers, making punishment by death more palatable,” she wrote. And if the anesthetic failed to work, she warned, the paralytic would hide the “excruciatingly painful ordeal of death by lethal injection.”...

Henry reiterated an argument she had tried to make at the end of the trial. If the state could not carry out an execution using the alternative they had put forward — a single dose of pentobarbital — the plaintiffs moved to amend their complaint to consider an “alternative to the alternative”: a two-drug cocktail that removed the vecuronium bromide altogether. This option is “clearly available and readily implemented,” which would satisfy the Glossip requirement. And it would remove one of the well-established risks: that their clients would be paralyzed, suffocating, and suffering as the lethal drugs took hold.

It seemed simple enough. Parker himself has suggested it would be possible. Indeed, Lyle had been among the first in the country to criticize the paralytic back in 2003. “If the state is sincere in its belief that midazolam will work the way that they say it will work,” said Bradley MacLean, counsel for Abu Ali Abdur’Rahman, “there is no reason why the state should oppose this.”

But it did. Sutherland called it a “desperate” move, while Lyle explained that the law prevented her from granting the motion. As for her prescient opinion 15 years ago, she wrote in her ruling, it came before Baze and Glossip. The Supreme Court had found a legitimate purpose for the paralytic: hastening death, while dignifying the process for witnesses and the condemned alike. Her previous decision was “of minimal use.”

[douglasacogan]

Is the unanimous SCOTUS ruling in Briggs notably kind to the "evolving standards" approach to the Eighth Amendment?

I noted in this post the Supreme Court's unanimous ruling this morning in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), which fundamentally concerned an issue of statutory interpretation.  But the Eighth Amendment was part of the fabric of the statutory debate, and I was struck by how the opinion by Justice Alito for the full Court — save Justice Barrett, who was not yet on the Court by the time of oral argument — discussed how the Eighth Amendment is interpreted in these two passages:

This Court has held that the Eighth Amendment incorporates “‘evolving standards of decency.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); emphasis added).  Thus, even if we were to hold that rape could be punished by death in the military context, the evolving-standards test could later lead to a different result and thus a different statute of limitations at some point in the future.  Such evolution has been held to have occurred on a number of past occasions.  Compare Atkins v. Virginia, 536 U. S. 304, 321 (2002) (Eighth Amendment prohibits death penalty for defendant described as mentally retarded), with Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (Eighth Amendment permits death penalty for such a defendant); compare also Roper v. Simmons, 543 U.S. 551, 574–575 (2005) (Eighth Amendment prohibits death penalty for crime committed by person under 18 years of age), with Stanford v. Kentucky, 492 U. S. 361, 380 (1989) (Eighth Amendment permits death penalty for defendants who are at least 16 years of age)....

As noted, in deciding whether the Eighth Amendment permits a death sentence for a particular category of offenses or offenders, the Court has looked to evolving societal standards of decency and has also rendered its own independent judgment about whether a death sentence would aptly serve the recognized purposes of criminal punishment in certain categories of cases. See Kennedy, 554 U.S., at 419–421, 441–446; Roper, 543 U.S., at 561, 571–575; Atkins, 536 U.S., at 318–321.  Some Justices have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment.  See, e.g., Graham v. Florida, 560 U.S. 48, 99–102 (2010) (THOMAS, J., dissenting); Atkins, 536 U. S., at 348–349 (Scalia, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 864, 872–873 (1988) (same); cf. Glossip v. Gross, 576 U.S. 863, 894, 898–899 (2015) (Scalia, J., concurring).  But under either method, the inquiry is quite different from the one that a lawmaker might make in fixing a statute of limitations.

This accounting of Eighth Amendment interpretation in Briggs is certainly meant to be just descriptive, as it notes how "the Court has" approached Eighth Amendment interpretation and how some Justices " have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment."   Nevertheless, this discussion of the "evolving-standards test" still struck me as fairly "kind" to a "living Constitution" vision of the Eighth Amendment in a unanimous Court ruling circa 2020.  Though I am likely reading way too much into these passages, I will be eager in future writings to have a fresh 2020 citation for the proposition that the Supreme Court has indicated that courts are look "to evolving societal standards of decency" when interpreting the Eighth Amendment.  United States v. Biggs, No. 19-108, slip op. at 8 (S. Ct. Dec. 10, 2020).  And, I will also like to be able to say that, as the Supreme Court has clearly explained , "this evolving-standards test could later lead to a different result" under the Eighth Amendment even when a punishment has previous been upheld as constitutional.  Id. at slip op. 6-7.

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2020/12/is-the-unanimous-scotus-ruling-in-briggs-notably-kind-to-the-evolving-standards-approach-to-the-eigh.html via http://www.rssmix.com/

[districofcolumbiaprelawland-blog]

Can The Death Penalty Be Abolished?

By Alexander Shusko, George Washington University Class of 2022

July 22, 2020

The Supreme Court ruled early Tuesday morning that the United States could execute Daniel Lewis Lee, who was convicted of murdering a family in Arkansas in 1996. His execution was the first conducted by the federal government since 2003.[1] This resumption of the death penalty by the national government has renewed the debate over its constitutionality. The Supreme Court has continually upheld the legality of the death penalty, ruling that it does not constitute cruel and unusual punishment that would be prohibited under the Eighth Amendment. After a brief suspension of the policy in 1972, the Court ruled that the death penalty could resume in 1976 in the case Gregg v. Georgia. They concluded that as long as states took adequate precautions to ensure that individuals sentenced to death were guilty, executions were legal.[2] They have issued several rulings since that further narrowed the cases that the death penalty could be used for.

However, there is no way for states to ensure that all of the inmates sentenced to death are guilty. Even with these restrictions given by the Supreme Court, 170 people executed by federal or state governments after 1973 have since been exonerated of all crimes.[3] These 170 individuals are not just rare exceptions; they are 11% of all inmates killed on death row.[4] Even with safeguards, a significant number of innocent people have been sentenced to death in the United States. The Fourteenth Amendment protects individuals from being deprived of their lives by states without due process.[5] Because it has been impossible for states to give inmates adequate due process to ensure that only the guilty are executed, the death penalty is in direct violation of the Fourteenth Amendment. Even with stricter guidelines, it is difficult to see how states can ensure that no innocent person is killed. Because of this, there is no way for states or the national government to adequately ensure the due process of their citizens as long as the death penalty exists.

Despite the Supreme Court’s rulings to the contrary, the death penalty does actually subject individuals to cruel and unusual punishment. Many recipients of the drugs used in executions are in significant pain while they die. Some inmates who received midazolam complained of feeling as if they were being waterboarded while they were dying.[6] In 2014, Clayton Lockett was injected by the state of Oklahoma with a three-drug solution that was intended to put him to sleep before killing him. He woke up during the procedure and stayed awake for nearly 40 minutes before he eventually died of a heart attack.

The Supreme Court ruled that he was not subjected to cruel and unusual punishment because the petitioners were unable to find another drug that would have ensured he would have been in less pain. Justice Alito asserted in the majority opinion that some level of pain is inherently involved in an execution. Because executions are legal, he argued that the Eighth Amendment does not ask that they involve no pain but rather no excessive pain.[7] Not being able to find a reasonable alternative with less pain should not be a guideline for determining if an amount of pain is acceptable. A punishment can still be cruel even if it is the least cruel option. The fact that in this case no less painful alternative could be found just proves that the only humane option available is to not execute prisoners.

Even if the government had access to a drug that would never inflict pain among inmates being executed, the practice would still be cruel and unusual punishment. The Supreme Court ruled in the 1890 case In re Kemmler that “the punishment of death is not cruel within the meaning of that word as used in the Constitution. [The word cruel] implies there something inhuman and barbarous -- something more than the mere extinguishment of life.”[8] However, our perception of what constitutes an inhuman or barbarous act has changed over time. The Supreme Court stated in the 1958 case Trop v. Dulles that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[9] If our standards of decency have evolved over time, then, courts’ interpretation of what constitutes a cruel and unusual punishment should too. Evidence suggests that Americans’ opinions on the death penalty have in fact shifted significantly.

In 1985, Gallup asked participants in a survey (in the U.S.) whether they believe the death penalty or life imprisonment is a better punishment for murdrer. Only 34% stated that life imprisonment is the better option. When they conducted the same survey in 2018, 60% of respondents believed life imprisonment to be a better penalty.[10] While a majority of Americans still believe in the morality of the death penalty conceptually, that percentage has fallen from 71% of respondents in 2006 to only 54% in 2020.[11] Because popular opinions of the death penalty have evolved over time, historical precedent of the Supreme Court ruling that the death penalty is not cruel and unusual punishment does not limit them from ruling tomorrow that it is.

In addition to being unconstitutional, the death penalty does not deter crime. In Gregg v. Georgia, the Supreme Court declined to comment on whether the death penalty served as an effective deterrent against crime.[12] In the more than 40 years since, significant evidence has surfaced proving it to be mostly ineffective. The death penalty has been used less frequently by states almost every year since 2000.[13] Despite this, violent crime has continually declined since then.[14] Additionally, 12 out of the 16 states with the highest homicide rates all use the death penalty.[15] Evidence from overseas also supports the conclusion that the death penalty is not an effective deterrent against crime.

Researchers from Columbia Law School, the University of California Berkeley, and the University of Hawai’i Manoa studied the homicide rates in Hong Kong and Singapore. They found that since the 1970s, the rates have trended together nearly identically. This is despite the fact that Hong Kong abolished the death penalty in the 1990s while Singapore continues to use it relatively frequently against those convicted of murder and drug trafficking.[16] Because it serves as a barbarous and inhumane method of punishment while also not deterring crime, courts have little legal justification left to continue its practice.

________________________________________________________________

[1] Evans, Tim, and Indianapolis Star. “US Carries out First Federal Execution in 17 Years after Supreme Court Clears the Way,” July 14, 2020. https://www.usatoday.com/story/news/politics/2020/07/14/daniel-lewis-federal-execution-supreme-court/5433579002/.

[2] "Gregg v. Georgia." Oyez. Accessed July 16, 2020. https://www.oyez.org/cases/1975/74-6257.

[3] “Innocence.” Death Penalty Information Center, April 23, 2019. https://deathpenaltyinfo.org/policy-issues/innocence.

[4] “Death Penalty Fast Facts.” CNN. Cable News Network, July 15, 2020. https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html.

[5] U.S. Const. amend. XIV, §1

[6] Segura, Liliana. “Ohio's Governor Stopped an Execution Over Fears It Would Feel Like Waterboarding.” The Intercept, February 7, 2019. https://theintercept.com/2019/02/07/death-penalty-lethal-injection-midazolam-ohio/.

[7] "Glossip v. Gross." Oyez. Accessed July 16, 2020. https://www.oyez.org/cases/2014/14-7955.

[8] In re Kemmler, 136 U.S. 436 (1890)

[9] Trop v. Dulles, 356 U.S. 86 (1958)

[10] Jones, Jeffrey M. "Americans Now Support Life in Prison Over Death Penalty." Gallup.com. April 08, 2020. Accessed July 17, 2020. https://news.gallup.com/poll/268514/americans-support-life-prison-death-penalty.aspx.

[11] Brenan, Megan. "Record-Low 54% in U.S. Say Death Penalty Morally Acceptable." Gallup.com. July 17, 2020. Accessed July 17, 2020. https://news.gallup.com/poll/312929/record-low-say-death-penalty-morally-acceptable.aspx?utm_source=alert&utm_medium=email&utm_content=morelink&utm_campaign=syndication.

[12]  "Gregg v. Georgia." Oyez. Accessed July 16, 2020. https://www.oyez.org/cases/1975/74-6257.

[13] "Expiring." The Economist. April 25, 2014. Accessed July 17, 2020. https://www.economist.com/graphic-detail/2014/04/25/expiring.

[14] Gramlich, John. "5 Facts about Crime in the U.S." Pew Research Center. May 30, 2020. Accessed July 17, 2020. https://www.pewresearch.org/fact-tank/2019/10/17/facts-about-crime-in-the-u-s/.

[15] "NEW PODCAST: DPIC Study Finds No Evidence That Death Penalty Deters Murder or Protects Police." Death Penalty Information Center. Accessed July 17, 2020. https://deathpenaltyinfo.org/news/new-podcast-dpic-study-finds-no-evidence-that-death-penalty-deters-murder-or-protects-police.

[16]Zimring, Franklin E., Jeffrey Fagan, and David T. Johnson. "Executions, Deterrence and Homicide: A Tale of Two Cities." SSRN Electronic Journal, 2009. Accessed July 17, 2020. doi:10.2139/ssrn.1436993.

[julianarae-blog1]

...with liberty and justice for SOME.

I remember my mom teaching me to never say the Pledge of Allegiance in school.  “’With liberty and justice for all’ is bullshit, Juliana. It’s bullshit. This country doesn’t care about everyone. Sure, there’s liberty and justice for some, but not for all. Don’t ever believe that.”

That stuck close to me. That stuck close to me when I saw white people fawning over the golden shade of my brown skin while simultaneously asking if I “belonged” in the accelerated classes. I was that kid in class that never stood up for the Pledge. There were those few teachers that made me stand, and I would say “with liberty and justice for some”. Heads would turn, eyes would roll. They just didn’t understand, and I didn’t expect them to if their liberty and justice was never in jeopardy, or never would be.

Glossip v. Gross. Oklahoma State Penitentiary. April 2014. Clayton Lockett , a black man, was executed using a three-drug lethal injection procedure.  Lockett awoke after being injected and didn’t die for almost an hour instead of dying immediately. Over twenty death row inmates sued the state and argued that execution protocol violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Half of the death row inmates in Oklahoma are black men. 

The Supreme Court voted and declined to grant the petition. One of the inmates that sued the state was executed in the same manner shortly after. His last words? “My body is on fire.”

Justice was not served.

“Why would the Supreme Court care though?” “Someone’s loved one was taken from them.” “They’re on death row for a reason - justice WAS served.”

....

No. Justice was NOT served. A human being suffering for almost an hour at the hands of the state is a clear violation of his civil rights and of the law. But somehow, the American people have forgotten that inmates are human beings. The American people have forgotten that inmates have rights. The American people have forgotten that for every 9 people executed in this country, 1 is innocent. The American people have forgotten that those who kill white people are more likely to be sentenced to death than those who kill black people. Clayton Lockett was someone’s son, maybe someone’s husband. I think that being in federal prison for life is enough punishment for any crime committed. I am completely against the death penalty in this country and find the act in itself to be cruel and unusual. I can’t wrap my head around taking one life as punishment for the loss of another. 

Capital punishment does not deter crime, nor does it revive anyone back to life. it repeats a vicious cycle of violence and vengeance. Those who are imprisoned are not a threat to our citizens. I don’t think that there is really any way to pay reparations to the families and loved ones of murder victims. So why would we risk the mental health of correctional offers involved in these executions, and the families and loved ones of those being executed, in an attempt to do so?

For more information on this Supreme Court case:

https://www.nytimes.com/interactive/2015/us/major-supreme-court-cases-in-2015.html

https://www.oyez.org/cases/2014/14-7955

https://deathpenaltyinfo.org/race-death-row-inmates-executed-1976

[ericfruits]

The Supreme Court rules that a murderer has no right to a “painless death”

CASES DEALING with methods of execution produce the grisliest Supreme Court decisions. Wilkerson v Utah, the first such case probing the limits of the Eighth Amendment’s bar on “cruel and unusual punishments”, held that while being “embowelled alive, beheaded and quartered” are unconstitutional, firing squads are allowable. That was in 1879. In 2008, lethal injection was deemed acceptable in Baze v Rees. In a wrinkle on Baze in 2015, the Supreme Court rejected an inmate’s claim that a drug in Oklahoma’s lethal-injection cocktail entailed a risk of extreme and extended suffering. Everyone may “wish to die a painless death”, Justice Samuel Alito wrote in Glossip v Gross, but “many do not have that good fortune”. Letting inmates escape the death penalty just because their execution method may entail a risk of severe pain “would effectively outlaw the death penalty altogether”.

With this rather fresh precedent on the books, the result in Bucklew v Precythe, a case decided by a 5-4 vote on April 1st, is perhaps not surprising. But the hard-hearted tone of the majority opinion is nonetheless shocking. Russell Bucklew was sent to Missouri’s death row in 1996 after threatening and raping his ex-girlfriend, shooting at her son and killing the man who gave them refuge. Like most states that still practice capital punishment, Missouri puts its worst criminals to death with lethal injection. But Mr Bucklew has a rare medical condition that could make such an execution extremely painful. In the words of Justice Neil Gorsuch, author of the majority opinion, Mr Bucklew’s cavernous hemangioma causes tumours comprised of “clumps of blood vessels” to grow in his head, neck and throat. The tumours are easily pricked and often bleed. During lethal injection, Mr Bucklew’s doctors say, the tumours would probably rupture and flood his airway, suffocating him for minutes. That, his lawyers argue, amounts to cruel and unusual punishment.

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In Justice Gorsuch’s opinion, Mr Bucklew finds little sympathy. A drug that may have decreased the risk of a botched execution, Justice Gorsuch wrote, is unavailable due to “pressure from anti-death penalty advocates”. But that is beside the point, because the Eighth Amendment prohibits only punishments that add “terror, pain or disgrace” on top of the mechanics of ending a criminal’s life. Even hanging, Justice Gorsuch wrote, is perfectly constitutional despite being “no guarantee of a quick and painless death”. So, picking up on Glossip, Justice Gorsuch reminds us that the Eighth Amendment does not promise “a prisoner a painless death”. That is something, he added, that victims of capital crimes seldom receive. Mr Bucklew’s requested exemption from lethal injection is not only out of bounds. His constitutional claim is a “headlong attack on precedent”.

Portraying the Supreme Court as the victim of a condemned man with an awful medical malady is a questionable move. But from there, Justice Gorsuch erected an even more formidable barrier for inmates seeking vindication of their Eighth Amendment rights. In line with Glossip’s requirement that people on death row name another workable execution method that would incur less pain, Mr Bucklew said it would be better if he were put to death using nitrogen gas. Such a death would be “quick and painless” and would not burst Mr Bucklew’s tumours. That is not sufficient, Justice Gorsuch replied. There is not enough evidence nitrogen would work any better. And the inmate needs to show both that the alternative could be “readily implemented” and that the state has no good reason to resist it. But Missouri has never used nitrogen gas, Justice Gorsuch wrote, and Mr Bucklew has specified neither the concentration of gas, how long it would flow nor how the state “might ensure the safety of the execution team”.

For Justice Stephen Breyer, whose dissent was joined in large part by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, faulting Mr Bucklew “for failing to provide guidance about the administration of nitrogen hypoxia down to the last detail” imposes a novel requirement that “today’s majority invents”. It amounts to an “insurmountable hurdle” for prisoners seeking to challenge their execution methods. And the majority’s callous indifference to the suffering of condemned prisoners means states will be empowered to “execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case” and “how thoroughly they prove it”.  

In her own eloquent dissent, Justice Sotomayor took issue with a passage in the majority opinion rife with evidence of the majority’s disdain for death-row inmates who turn to the courts to avert their executions. The judiciary, Justice Gorsuch wrote, should not stand in the way of states seeking to execute their worst. Instead, courts should “police carefully against attempts to use such challenges as tools to interpose unjustified delay” in death sentences. “Last-minute stays”, he continued, “should be the extreme exception, not the norm”. For Justice Sotomayor, this is backwards. There is “nothing unusual” or “untoward”, she wrote, “about parties pressing, and courts giving full consideration to” constitutional challenges, whether or not they succeed. If an execution results in the torture of a man with a medical condition, “that stain can never come out”. When a life is on the line, judges should be vigilant, not dismissive.

On March 20th 2018, Justice Anthony Kennedy was still on the bench when Mr Bucklew requested a temporary delay in his execution. Justice Kennedy joined the liberal justices in granting that request, with the four other conservative justices in dissent. Mr Bucklew may ultimately have lost his case at the Supreme Court even if Justice Kennedy had spent another year in his seat: he was in the majority, after all, in both Baze and Glossip. But given Justice Kennedy’s votes exempting juveniles and people with intellectual disabilities from the death penalty there is a chance Bucklew could have gone the other way. Even if not, it seems unlikely that Justice Kennedy's would have added his signature to an opinion silently bypassing the court's "evolving standards of decency" approach to defining the requirements of the Eighth Amendment, a measure the justices have used since 1952. And Justice Kennedy's concern with the dignity of the individual, obvious in his jurisprudence, may have kept him from joining a ruling so contemptuous of a person facing the prospect of a torturous ordeal at the hands of the state. As Justice Sotomayor wrote, “there are higher values than ensuring that executions run on time”.

https://ift.tt/2UbULlY

[phroyd]

THE OKLAHOMA DEATH Penalty Review Commission after more than a year of work has recommended that a moratorium on carrying out capital punishment in the state be continued indefinitely. “It is undeniable that innocent people have been sentenced to death in Oklahoma,” the report concludes.

The bipartisan commission’s findings span nearly 300 pages, covering every stage of the state’s death penalty system. It addresses such issues as the problematic interrogation of suspects, overworked defense attorneys in capital cases, and an execution process with a disastrous track record. Headed by former Gov. Brad Henry, former federal magistrate Judge Andy Lester, and Judge Reta Strubhar, the first woman to sit on the state’s Court of Criminal Appeals, the commission urges the state to correct the “systemic flaws” in its death penalty system before seeking to restart executions, or sentencing any new defendants to death row.

It is not the first time a report has found deep problems with the death penalty in Oklahoma. A blistering grand jury report released last year found myriad failures by state officials entrusted to carry out lethal injection. But this is a more far-reaching review, conducted by an 11-member commission that, beginning in 2015, “gathered data, reviewed scholarly articles, commissioned studies, and conducted interviews” to thoroughly examine the state’s capital punishment system from top to bottom. Its specific findings and recommendations are divided into 10 chapters spanning subjects from the handling of forensic evidence to the clemency process.

As The Intercept reported following the release of the grand jury report in May 2016, its findings showed dizzying incompetence and disregard for protocol in the run-up to Glossip’s planned execution, as well as deceit on the part of state officials, who afterward lied to the public about key aspects of what happened. Particularly egregious were the actions of the general counsel for Gov. Fallin, who, when confronted with evidence that Warner had been killed using the wrong drug, protested that stopping Glossip’s execution “would look bad for the state of Oklahoma,” because officials would then have to admit they had carried out an execution with the wrong drug.

The commission expanded on the grand jury findings by widening the review to consider the system as a whole. Although Glossip is just one example cited in its report, the case is particularly emblematic of the range of failures the commission urged the state to address. Glossip was once mainly known as the named plaintiff in the U.S. Supreme Court case Glossip v. Gross, which upheld the state’s lethal injection protocol — and specifically the use of midazolam, a sedative that remains controversial. But his case exploded onto the national stage after it was exposed that, as Glossip has insisted for decades, he may well be an innocent man.

Continue Reading ... 

Phroyd

[lodelss]

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

America made big strides in 2019 on its path to dismantle the racist, unfair, and inhumane death penalty. Today, dramatically fewer states permit the death penalty than any time in the modern era, and the number of people on death row is at a 27-year low.

Bi-partisan supermajorities in the New Hampshire legislature abolished the death penalty in May, making it the 21st state to formally reject the punishment. Governor Gavin Newsom imposed a sweeping moratorium on executions in California, closing the death chamber in the state with the largest death row in the country and prohibiting the execution of 737 death row prisoners. Four states — California, Oregon, Colorado, and Pennsylvania — are now under official Governor-imposed moratoria, bringing the total number of states that wouldn’t carry out an execution to 25. Ten years ago, just 12 states prohibited executions. In other words, the number of states prohibiting executions has more than doubled in the last decade — a remarkable pace of change.

The shift in states rejecting the death penalty is mirrored by the movement in public opinion away from capital punishment. The Gallup Poll has tracked public opinion about the death penalty versus life imprisonment since 1985. This year, for the first time since Gallup began tracking public opinion on this issue, a majority of Americans (60 percent) prefer life imprisonment to the death penalty. 

Part of this shift is the clear proof that the government does not always get it right — innocent people have been sentenced to death, including the 166 people who have been formally exonerated. This year brought even more proof that the death penalty cannot shake its innocence problem. In 2019, two men, Charles Ray Finch and Clifford Willians Jr., both of whom were convicted and sentenced to death in 1976, were exonerated and released. Additionally, the Texas Court of Criminal Appeals granted an indefinite stay to Rodney Reed after a groundswell of public opposition clamored against his execution in light of powerful new evidence of his innocence. Other names like James Dailey, Richard Glossip, and Larry Swearingen also made headlines for credible innocence claims. For Swearingen, those news stories came too late. 

While a year of much progress, 2019 was also a year plagued by shameful state executions and the reckless attempt by the federal government to rush the executions of five men after a nearly two decade de facto moratorium. The Supreme Court allowed Alabama to execute Dominque Ray, a Black Muslim who was denied access to the spiritual advice of his Imam — a comfort guaranteed to Christian prisoners. Just weeks later, the Court stopped the execution of Patrick Murphy, a white Buddhist man, triggering concerns that race and religion played a role in the disparate outcomes. 

Other unconscionable executions from 2019 include: Georgia’s execution of Ray Cromartie without permitting a simple DNA test that could have fully exonerated him; Missouri’s execution of terminally ill Russell Bucklew in the face of evidence that his execution was likely to be torturous; and Tennessee’s execution of legally blind Lee Hall, Jr. The Supreme Court and the government of South Dakota alike failed Charles Rhines, allowing his execution despite evidence that his jurors sentenced him to death because of their anti-LGBT prejudice.    

This year was mixed in terms of the courts willingness to grapple with intractable problems of racial discrimination in the death penalty. The U.S. Supreme Court declined to hear cases from Oklahoma that challenged the systemic racial bias in the imposition of the death penalty, as well as from California, where the state supreme court had upheld the outrageous claim that a prosecutor’s decision to exclude jurors who did not oppose the OJ Simpson verdict was unrelated to race.

But the North Carolina Supreme Court granted review in six cases where the petitioners were yanked from death row, to life without parole, and back again — without due process or new trials — after they had proved racism infected their cases and the state legislature repealed its anti-discrimination law. And the U.S. Supreme Court issued a powerful decision in Flowers v. Mississippi, reaffirming its commitment to overturning cases in which prosecutors secured death sentences by systematically excluding qualified Black jurors from jury service. 

The modern death penalty has churned along for over 40 years since the Supreme Court permitted its reinstatement in Gregg v. Georgia, after finding it unconstitutionally biased and arbitrary in 1972. After more than 40 years, none of the major problems with the death penalty have been addressed. An outgrowth of lynching and slavery, the modern death penalty is still racially biased. Supposed to be reserved for the “worst of the worst” defendants, the death penalty is handed down more often for those with the worst lawyers — not the worst crimes. Geography, money, and race are still the best predictors of who will receive the death penalty. The good news from 2019 is that the country is accelerating in its efforts to finally break with the inhumane and unjust punishment.      

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

Published December 13, 2019 at 04:00PM via ACLU https://ift.tt/35kXZou

[nancydhooper]

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

America made big strides in 2019 on its path to dismantle the racist, unfair, and inhumane death penalty. Today, dramatically fewer states permit the death penalty than any time in the modern era, and the number of people on death row is at a 27-year low.

Bi-partisan supermajorities in the New Hampshire legislature abolished the death penalty in May, making it the 21st state to formally reject the punishment. Governor Gavin Newsom imposed a sweeping moratorium on executions in California, closing the death chamber in the state with the largest death row in the country and prohibiting the execution of 737 death row prisoners. Four states — California, Oregon, Colorado, and Pennsylvania — are now under official Governor-imposed moratoria, bringing the total number of states that wouldn’t carry out an execution to 25. Ten years ago, just 12 states prohibited executions. In other words, the number of states prohibiting executions has more than doubled in the last decade — a remarkable pace of change.

The shift in states rejecting the death penalty is mirrored by the movement in public opinion away from capital punishment. The Gallup Poll has tracked public opinion about the death penalty versus life imprisonment since 1985. This year, for the first time since Gallup began tracking public opinion on this issue, a majority of Americans (60 percent) prefer life imprisonment to the death penalty. 

Part of this shift is the clear proof that the government does not always get it right — innocent people have been sentenced to death, including the 166 people who have been formally exonerated. This year brought even more proof that the death penalty cannot shake its innocence problem. In 2019, two men, Charles Ray Finch and Clifford Willians Jr., both of whom were convicted and sentenced to death in 1976, were exonerated and released. Additionally, the Texas Court of Criminal Appeals granted an indefinite stay to Rodney Reed after a groundswell of public opposition clamored against his execution in light of powerful new evidence of his innocence. Other names like James Dailey, Richard Glossip, and Larry Swearingen also made headlines for credible innocence claims. For Swearingen, those news stories came too late. 

While a year of much progress, 2019 was also a year plagued by shameful state executions and the reckless attempt by the federal government to rush the executions of five men after a nearly two decade de facto moratorium. The Supreme Court allowed Alabama to execute Dominque Ray, a Black Muslim who was denied access to the spiritual advice of his Imam — a comfort guaranteed to Christian prisoners. Just weeks later, the Court stopped the execution of Patrick Murphy, a white Buddhist man, triggering concerns that race and religion played a role in the disparate outcomes. 

Other unconscionable executions from 2019 include: Georgia’s execution of Ray Cromartie without permitting a simple DNA test that could have fully exonerated him; Missouri’s execution of terminally ill Russell Bucklew in the face of evidence that his execution was likely to be torturous; and Tennessee’s execution of legally blind Lee Hall, Jr. The Supreme Court and the government of South Dakota alike failed Charles Rhines, allowing his execution despite evidence that his jurors sentenced him to death because of their anti-LGBT prejudice.    

This year was mixed in terms of the courts willingness to grapple with intractable problems of racial discrimination in the death penalty. The U.S. Supreme Court declined to hear cases from Oklahoma that challenged the systemic racial bias in the imposition of the death penalty, as well as from California, where the state supreme court had upheld the outrageous claim that a prosecutor’s decision to exclude jurors who did not oppose the OJ Simpson verdict was unrelated to race.

But the North Carolina Supreme Court granted review in six cases where the petitioners were yanked from death row, to life without parole, and back again — without due process or new trials — after they had proved racism infected their cases and the state legislature repealed its anti-discrimination law. And the U.S. Supreme Court issued a powerful decision in Flowers v. Mississippi, reaffirming its commitment to overturning cases in which prosecutors secured death sentences by systematically excluding qualified Black jurors from jury service. 

The modern death penalty has churned along for over 40 years since the Supreme Court permitted its reinstatement in Gregg v. Georgia, after finding it unconstitutionally biased and arbitrary in 1972. After more than 40 years, none of the major problems with the death penalty have been addressed. An outgrowth of lynching and slavery, the modern death penalty is still racially biased. Supposed to be reserved for the “worst of the worst” defendants, the death penalty is handed down more often for those with the worst lawyers — not the worst crimes. Geography, money, and race are still the best predictors of who will receive the death penalty. The good news from 2019 is that the country is accelerating in its efforts to finally break with the inhumane and unjust punishment.      

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

from RSSMix.com Mix ID 8247012 https://www.aclu.org/news/capital-punishment/the-death-penalty-in-2019-a-year-of-incredible-progress-marred-by-unconscionable-executions via http://www.rssmix.com/

[marymosley]

United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation

The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina.

Facts. Russell Bucklew’s girlfriend left him and sought refuge at a neighbor’s home. Bucklew forced his way into the home; shot and killed the neighbor; and pistol-whipped, kidnapped, and raped Bucklew’s girlfriend.

Procedural history. Bucklew was convicted of murder and sentenced to death. His appeals and collateral attacks on his conviction were not successful.

Bucklew then sought to challenge Missouri’s lethal injection protocol. During Bucklew’s time on death row, Missouri modified its protocol several times, moving from a three-drug “cocktail” to the use of a single sedative, propofol, to the use of a different single sedative, pentobarbital. Other states have likewise adjusted their protocols, sometimes in response to an inability to procure drugs for use in lethal injections.

As these changes were taking place, the constitutionality of lethal injection was being litigated across the country, resulting in two decisions by the Supreme Court. In Baze v. Rees, 553 U.S. 35 (2008), the Court upheld Kentucky’s three-drug lethal injection protocol because the inmate challenging it did not identify an alternative method of execution that was “feasible, readily implemented, and [would] in fact significantly reduce a substantial risk of severe pain.” And in Glossip v. Gross, 576 U. S. __ (2015), the Court reaffirmed Baze and rejected a challenge to Oklahoma’s slightly different three-drug protocol.

Ultimately, Bucklew advanced an as-applied Eighth Amendment challenge to Missouri’s protocol:

Mr. Bucklew . . . contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications.

Later, Bucklew also contended that he would “experience pain [specifically, a sense of suffocation] during the period after the pentobarbital started to take effect but before it rendered him fully unconscious.” Pushed by the courts to identify an alternative method of execution, Bucklew eventually stated that he could be executed by “lethal gas,” specifically, nitrogen hypoxia, a method that The New York Times discusses here. A federal district court granted summary judgment against Bucklew and the Eighth Circuit affirmed.

Majority opinion. The Supreme Court granted review and affirmed 5-4. Justice Gorsuch wrote the majority opinion, joined by the Court’s other conservative Justices. He observed as an initial matter that the Court “has yet to hold that a State’s method of execution qualifies as cruel and unusual,” because states generally do not seek to make executions more terrifying or painful than necessary and indeed normally seek the opposite.

The Court then ruled that inmates bringing as-applied Eighth Amendment challenges, just like those bringing facial challenges, must identify superior alternatives, because assessing methods of execution is “a necessarily comparative exercise.” Bucklew’s alternative of nitrogen hypoxia did not pass muster, according to the majority, because it could not be “readily implemented.” It has never been used by any state in an execution, though several states have now authorized its use, and Bucklew “presented no evidence on essential questions like how nitrogen gas should be administered . . . in what concentration . . . and for how long,” or “how the State might ensure the safety of the execution team.” Furthermore, the majority didn’t think that nitrogen hypoxia would “significantly reduce” the risk of pain compared to lethal injection — with either method, there could be a “twilight period” during which Bucklew could experience a feeling of suffocation, and the majority viewed as shaky the evidence that the twilight period would be substantially longer with lethal injection.

Dissent. Justice Breyer wrote the principal dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. The dissent described Bucklew’s medical condition more graphically than did the majority: the rare condition causes “tumors filled with blood vessels to grow throughout [Bucklew’s] body, including in his head, face, neck, and oral cavity.” This condition creates a risk that “executing him by lethal injection will cause the tumors that grow in his throat to rupture . . . causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.”

On the legal issues, the dissenters would have ruled that an as-applied challenge like Bucklew’s does not require comparison to an alternative method — that it is enough if an inmate can show a significant risk of an excessive or horrific amount of pain using a state’s preferred method. Assuming arguendo that an inmate does need to present an alternative, the dissenters would have found Bucklew’s evidence regarding nitrogen hypoxia to be sufficient to deny summary judgment, citing reports by Louisiana and Oklahoma that it would cause no discomfort and that it would be “simple to administer.”

The door to future litigation is open. Although challenges to lethal injection have not found favor with the Supreme Court yet, the Court did not foreclose future litigation over methods of execution. To the contrary, if a future litigant were able to present more compelling evidence about the suffering caused by lethal injection or more convincing evidence about the feasibility of an alternative such as nitrogen hypoxia, such a litigant might have a viable claim. Justice Kavanaugh, who joined the majority opinion, even wrote separately to emphasize that “the alternative method of execution need not be authorized under current state law.” For this reason, I doubt that the Court’s opinion will do much to change North Carolina’s de facto moratorium on executions — it does not severely undermine existing litigation over methods of execution.

North Carolina connection. Beyond its implications for North Carolina, there’s one more North Carolina connection in the case. The named defendant is Anne Precythe, Director of the Missouri Department of Corrections. Ms. Precythe began her career as a probation and parole officer in Duplin County, North Carolina, and worked her way up in our corrections hierarchy before taking the top job in Missouri.

The post United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation appeared first on North Carolina Criminal Law.

United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation published first on https://immigrationlawyerto.tumblr.com/

[districofcolumbiaprelawland-blog]

Is The Death Penalty Considered Cruel And Unusual Punishment?

By Esra Aydogdu, The George Washington University Class of 2023

June 2, 2021

The third clause of the Eighth Amendment protects the people from “cruel and unusual punishments.”[1] Although what is considered “cruel” and “unusual” varies greatly, this part of the Constitution is most commonly associated with issues concerning the death penalty. Throughout United States history, torture has remained the most evident cruel and unusual punishment and, thus, has remained unconstitutional and impermissible. A variety of methods of execution, on the other hand, were allowed over the years. Since the 1700s, execution methods transitioned from burning, firing squad, hanging, gas, electrocution, and finally, to lethal injection.[2]

Furman v. Georgia in 1972 was the first Supreme Court case that brought into question the constitutionality of the death penalty. In this case, while burglarizing a home, Furman tripped and accidentally hit the trigger of his gun, killing a resident of the house.[3] As a result, he was convicted and sentenced to death. Furman’s case was taken to the Supreme Court along with two other death penalty cases. The Supreme Court, in a per curiam opinion, ruled that the death sentences in these cases were unconstitutional under the Eighth Amendment.[4] This was a groundbreaking decision, as the death penalty was presumed constitutional prior to Furman. The case did not deem the death penalty per se unconstitutional, or unconstitutional altogether. Rather, the administration of the death penalty in the specific cases in question was deemed unconstitutional. Following the Furman ruling, states attempted to find ways around procedural barriers to maintain executions.

In 1976, Gregg v. Georgia, a case that challenged the constitutionality of the death penalty on a per se basis, arose. After being sentenced to death for an armed robbery and murder conviction, Gregg appealed on the grounds that the death penalty, in itself, is a “cruel and unusual punishment”[5] In a 7-2 decision, however, the Supreme Court ruled that the death penalty did not violate the Eighth Amendment on a per se basis, “under all circumstances.”[6] In the specific case of Gregg, the Court argued that the death penalty was constitutional due to the procedures set and properly followed by the state of Georgia. Gregg had a bifurcated trial, or one trial for conviction and one separate trial for sentencing.[7] There were jury findings to the specific circumstances and situation of the crime, as well as a comparison of such circumstances to other cases by the State Supreme Court.[8] With these procedural safeguards adequately followed, the Court determined that Gregg’s death sentence was constitutional.

In the next decade or so after Gregg, the number of executions rose, with lethal injection as the primary method. The specific processes and implementation of lethal injection also raised questions of constitutionality, such as in Glossip v Gross in 2015. In this case, Clayton Lockett was executed with a three-drug lethal injection. Problems arose with the procedure, where Lockett woke up after the injection and did not die until forty minutes later.[9] Following this incident, Oklahoma suspended all executions and adopted a new protocol to prevent such problems from arising again. The protocol allowed the use of four different drug combinations; of these combinations, one had midazolam as the initial drug–which was the same drug used in Lockett’s flawed execution.[10] A total of 21 death row inmates sued, arguing that the use of midazolam in lethal injection procedures was unconstitutional. In a 5-4 decision, the Supreme Court ruled that the use of midazolam in execution procedures did not violate the Eighth Amendment.[11] The Justices argued that there was not enough evidence to determine that midazolam brought a substantial risk of pain for it to be considered “cruel and unusual.” In this decision, the Court established the “viable alternatives” doctrine. The Eighth Amendment does not require executions to be completely free of pain; rather, the issue arises with viable alternatives.[12] The people have the burden of proving that a viable alternative exists which shows a significantly lower risk of pain in order to question the constitutionality of a specific method of execution. Today, the viable alternatives doctrine remains a primary legal doctrine determining the constitutionality of execution cases. 

______________________________________________________________

[1] “The Constitution of the United States: A Transcription.” National Archives. 

[2] Wilson, Chris. “Every Execution in U.S. History in a Single Chart.” TIME, TIME, 24 July 2014.

[3] Furman v. Georgia, 403 U.S. 238 (1972)

[4] Ibid. 

[5] Gregg v. Georgia, 428 U.S. 153 (1976)

[6] Ibid. 

[7] “Bifurcated Trial.” Legal Information Institute, Cornell Law School.

[8] Gregg v. Georgia, 428 U.S. 153 (1976)

[9] Glossip v. Gross 576 U.S. ___ (2015)

[10] Ibid. 

[11] Ibid. 

[12]

Ibid. 

[lodelss]

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

America made big strides in 2019 on its path to dismantle the racist, unfair, and inhumane death penalty. Today, dramatically fewer states permit the death penalty than any time in the modern era, and the number of people on death row is at a 27-year low.

Bi-partisan supermajorities in the New Hampshire legislature abolished the death penalty in May, making it the 21st state to formally reject the punishment. Governor Gavin Newsom imposed a sweeping moratorium on executions in California, closing the death chamber in the state with the largest death row in the country and prohibiting the execution of 737 death row prisoners. Four states — California, Oregon, Colorado, and Pennsylvania — are now under official Governor-imposed moratoria, bringing the total number of states that wouldn’t carry out an execution to 25. Ten years ago, just 12 states prohibited executions. In other words, the number of states prohibiting executions has more than doubled in the last decade — a remarkable pace of change.

The shift in states rejecting the death penalty is mirrored by the movement in public opinion away from capital punishment. The Gallup Poll has tracked public opinion about the death penalty versus life imprisonment since 1985. This year, for the first time since Gallup began tracking public opinion on this issue, a majority of Americans (60 percent) prefer life imprisonment to the death penalty. 

Part of this shift is the clear proof that the government does not always get it right — innocent people have been sentenced to death, including the 166 people who have been formally exonerated. This year brought even more proof that the death penalty cannot shake its innocence problem. In 2019, two men, Charles Ray Finch and Clifford Willians Jr., both of whom were convicted and sentenced to death in 1976, were exonerated and released. Additionally, the Texas Court of Criminal Appeals granted an indefinite stay to Rodney Reed after a groundswell of public opposition clamored against his execution in light of powerful new evidence of his innocence. Other names like James Dailey, Richard Glossip, and Larry Swearingen also made headlines for credible innocence claims. For Swearingen, those news stories came too late. 

While a year of much progress, 2019 was also a year plagued by shameful state executions and the reckless attempt by the federal government to rush the executions of five men after a nearly two decade de facto moratorium. The Supreme Court allowed Alabama to execute Dominque Ray, a Black Muslim who was denied access to the spiritual advice of his Imam — a comfort guaranteed to Christian prisoners. Just weeks later, the Court stopped the execution of Patrick Murphy, a white Buddhist man, triggering concerns that race and religion played a role in the disparate outcomes. 

Other unconscionable executions from 2019 include: Georgia’s execution of Ray Cromartie without permitting a simple DNA test that could have fully exonerated him; Missouri’s execution of terminally ill Russell Bucklew in the face of evidence that his execution was likely to be torturous; and Tennessee’s execution of legally blind Lee Hall, Jr. The Supreme Court and the government of South Dakota alike failed Charles Rhines, allowing his execution despite evidence that his jurors sentenced him to death because of their anti-LGBT prejudice.    

This year was mixed in terms of the courts willingness to grapple with intractable problems of racial discrimination in the death penalty. The U.S. Supreme Court declined to hear cases from Oklahoma that challenged the systemic racial bias in the imposition of the death penalty, as well as from California, where the state supreme court had upheld the outrageous claim that a prosecutor’s decision to exclude jurors who did not oppose the OJ Simpson verdict was unrelated to race.

But the North Carolina Supreme Court granted review in six cases where the petitioners were yanked from death row, to life without parole, and back again — without due process or new trials — after they had proved racism infected their cases and the state legislature repealed its anti-discrimination law. And the U.S. Supreme Court issued a powerful decision in Flowers v. Mississippi, reaffirming its commitment to overturning cases in which prosecutors secured death sentences by systematically excluding qualified Black jurors from jury service. 

The modern death penalty has churned along for over 40 years since the Supreme Court permitted its reinstatement in Gregg v. Georgia, after finding it unconstitutionally biased and arbitrary in 1972. After more than 40 years, none of the major problems with the death penalty have been addressed. An outgrowth of lynching and slavery, the modern death penalty is still racially biased. Supposed to be reserved for the “worst of the worst” defendants, the death penalty is handed down more often for those with the worst lawyers — not the worst crimes. Geography, money, and race are still the best predictors of who will receive the death penalty. The good news from 2019 is that the country is accelerating in its efforts to finally break with the inhumane and unjust punishment.      

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

Published December 13, 2019 at 09:30PM via ACLU https://ift.tt/35kXZou