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Not A Good Sign

During the debate over the nomination of Sonia Sotomayor to the Supreme Court, we reviewed her AEPDA opinions and noted them to be generally thoughtful and balanced. However, we cautioned that she had nearly zero record on the death penalty as a judge, and that her signature on a repugnant PRLDEF memo was a concern.

Right out of the gate, Justice Sotomayor joined the dissent when the Supreme Court denied a stay to Jason Getsy. This is not good. Unlike the Troy Davis case, which got the headlines recently, there is no doubt that Getsy is guilty as sin of murder for hire. There is no good reason to stay his execution. The claim that there is something unconstitutional about the fact that the man who hired him got off for less -- as a result of Confrontation Clause limits on evidence in the latter's trial -- should not make any person of sense even pause. Ohio's lethal injection procedure is as good as the one upheld in Baze v. Rees. (Maybe better -- the Ohio team has had more practice.)

Curiously, while four justices dissent from the denial of a stay, no dissent is noted from the denial of certiorari. Under the "rule of four," the four stay-dissenters could have granted certiorari, and one of the others probably would then have provided the fifth vote for a stay. Kind of odd, but no explanation is given.

David Savage has this article in the LA Times. Jesse Holland reports for AP.

Update: Long-overdue justice in this case was finally carried out at 10:29 EDT. AP story is here

Update 2: This follow-up AP story by Andrew Welsh-Huggins describes the execution, noting that a check for consciousness and rechecking the shunts after the first drug is part of the protocol.  The absence of those checks from the Kentucky protocol was the primary basis of Justice Ginsburg's dissent in Baze v. Rees: "Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs."


I'm not sure that the "disproportionality" issue was on the table. When SCOTUS denied cert. from Getsy's habeas claim, that probably ended that claim's viability. Likely, the issue was the ability of Getsy to challenge Ohio's LI protocol. That four Justices would vote to stay an execution on that basis is surpassing silly. Baze set forth what an inmate has to do in order to get a stay, and it doesn't look like Getsy has come close to doing that.

Given Sotomayor’s activist history, her stay vote should surprise no one. It would be surprising, if not astonishing, were she ever to join the conservative bloc against Stevens, Ginsburg and Breyer in any death penalty case.

Prior to and during the hearings, I suggested to groups opposing Sotormayor that she be asked about specific past death penalty decisions and statements by justices. Regrettably, she was not. This could have forced her to take public stands on the death penalty. Refusals to answer would have validated plausible suspicions.

More importantly, asking such questions would educate the public about just what the Supreme Court has done to the death penalty. Any good teacher knows that concrete examples are critical to getting a point across. Few issues can match capital punishment in providing easy-to-understand illustrations of egregious activism (e.g., a convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies; justices contending rape can be unharmful and it is a "misnomer" to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered). These examples would shock a substantial majority if ever adequately reported (or even mentioned) by the media

My questions can be found here.* Future Supreme Court and circuit nominees should be confronted with capital punishment specifics. Finally, since judges are unaccountable, at least senators should face questions about and be held accountable for the death penalty activism of those they vote to confirm.
* http://tcsdaily.com/article.aspx?id=071509A

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