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Not much newsworthy out of the Supreme Court today. Friday's conference didn't include any of the cases we are following. The orders list is here. The Court took a money laundering case, Cuellar v. United States, 06-1456, discussed at SCOTUSblog and SL&P.

In Smith v. Arizona, Justice Breyer has a dissent from denial of certiorari on the perennial Lackey claim, that long delays before execution are cruel to the defendant. It is more than a little weird than a judge can opine, presumably with a straight face, that something caused by the defendant and the courts over the state's vehement objection can entitle the defendant to set aside the state's judgment against him.

If you really want to do something about this, Justice Breyer, the path is quite clear. First, dismantle the system of federal micromanagement of the penalty phase of state capital cases that followed in the wake of Gregg v. Georgia. Keep Gregg itself, requiring the states to adopt systems that fix the Furman problem, but leave the details of administration of those systems to the state courts.

Second, genuinely enforce the Antiterrorism and Effective Death Penalty Act of 1996. If Lindh v. Murphy had been correctly decided, AEDPA would have applied to Smith's 1999 federal habeas case. In that case, the Ninth Circuit overturned the decision of the state courts because 2 of the 4 federal judges who heard the case disagreed with the state court. The district judge and the dissenting judge in the Court of Appeals thought the state court was right. The state decision was reasonable and shouldn't have been overturned under AEDPA. This execution should have been carried out seven years ago.


Well put, Kent. Did you happen to see the arguments in Lightbourne last Thursday?

If I remember correctly, O'Connor provided the 5th vote. What a mistake.

That this animal is still alive, fed by the taxpayers of Arizona, is a testament to the complete and utter irresponsibility of the federal courts and their supervision of the death penalty. Smith's crimes cry out for the death penalty, perhaps even more than Medellin's heinous crimes, and that is saying a lot.

Justice Breyer's dissent is, to put it plainly, disgusting. He knows damned well why this has taken so long (and the costs imposed on the victims' families), and yet he offers up this pious nonsense about "constitutional error" causing the delay.

We constantly hear in the press about the heartless conservative Justices, Why isn't Breyer's position met with the same derision? Breyer is willing to countenance a system where federal courts hide the ball and change the rules and then decide that the states have a time limit on getting through the obstacles placed in front of the states in getting an execution carried out. It is the height of cruelty (and arrogance) Given the fact that he has obvious sympathy for the most brutal murderers (evidenced by his desire to warp the Constitution in favor of those murderers), one wonders why he has none for families that have had to live with the horror of having one's one child deliberately choked on dirt and being tortured further because suffocation by having dirt shoved down her throat apparently was not torture enought. I mean, if Breyer can twist the rules in favor of heinous murderers, why don't victims' families get the same succor? I guess it's just more enlightened to care about some heinous killer, fed by the taxpayers, than it is to care about the people who suffer because their child was snatched from them.

Justice Breyer, with his opinion, spits in the face of these people. And I am sure he fancies himself enlightened in so doing. He should be ashamed of himself.

Agreed, Kent. Is that case 30 years old? Ridiculous. The federal courts flip-flopping on issues have caused most of the delays themselves. Did you read Jeffrey Toobin's new book? He says Ginsburg voted to uphold on criminal cases with Scalia and Thomas? I will have to look into that.

Dave, are you agreeing with me or with federalist?

I haven't read Toobin's book. I have read enough about it to know it is deeply colored by his political viewpoint.

I assume Breyer did not cite his dissent in Allen v. Ornoski in 2006- because the delay in that case could not be attributed to defective state court proceedings.

Justice Breyer has been whining about that for years. Hypocritical. In my view, age, along with mental issues should be mitigating factors considered by the sentencing body and not be exclusions for imposing the death sentence. What case would Breyer affirm the death sentence? Has he ever on the SCOTUS?

Great, Kent. I forgot that one. I remember the days in the 80's when Stevens and Blackmun would write majority opinions upholding the death sentence. Two I can think of are Stephens v. Zant and Spaziano v. Florida.

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