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Why Now?

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In his opinion dissenting from denial of a stay in the Arkansas execution case, McGehee v. Hutchison, No. 16-8770, Justice Breyer asked rhetorically, "Why now?"  He surely meant why not later, but I think the more pertinent question is why not earlier.

Let us begin in 2012 with a bizarre opinion by the Arkansas Supreme Court.  Ten murderers on the state's death row filed suit claiming that it violated the separation of powers for the legislature to prescribe the method of execution in general terms and let the corrections department fill in the details.  Incredibly, the court bought it.  As a matter of administrative law, this is preposterous.  Legislatures regularly delegate far more fill-in-the-gaps authority to administrative agencies than this.  Every other state supreme court to consider such a claim has rejected it, as Justice Baker described in her dissent.
So, the legislature had to write details into the statute.  The current method was enacted statutorily in 2015.  The murderers challenged it in state court on both state and federal grounds.  The state removed the case to federal court, and the murderers dismissed their claims and refiled in state court with state claims only.

This action by itself is a good enough reason to deny relief.  The prisoners could have had their federal claims litigated then, and they deliberately chose not to.  Why not?  So they could file them again as last-minute actions, of course.  The states courts eventually rejected the challenges, and the U.S. Supreme Court denied certiorari on February 21, 2017.  Six days later, the prisoners refiled in federal court the claims they had chosen to dismiss earlier.

That is why now, Justice Breyer.  Judgments that should have been executed years ago were not because of a patently wrong court decision followed by intentionally convoluted litigation tactics on the part of the prisoners.  Do we see any of this in Justice Breyer's opinion?  No, we do not.  He attributes problems to "the death penalty system" and ignores the contributions of judicial activism and defense litigation tactics.

When a state's system for carrying out capital sentences is obstructed, a number of cases waiting execution will build up.  When a new obstruction looms in just a short time, those executions need to be carried out in a short time, lest the atrocity of long overdue justice be further aggravated by more indefinite delays.

Justice Breyer decries "a rush to judgment."  Let us put the blame squarely where it belongs.  If the Arkansas Supreme Court had decided correctly in 2012, i.e., in accordance with every other state to consider the question, none of this would have happened.  If all state and federal challenges to the new execution protocol had been decided in the litigation initially filed, they would be have been resolved earlier.  The blame lies with courts and defense lawyers, not "the system."

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