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Fireworks in Execution Cases

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Today's criminal law action in the U.S. Supreme Court is mostly in the "Opinions Relating to Orders" section, where individual Justices opine on whether the Court should or should not have stayed an execution, taken a case up, or sent it back to a lower court for a "do over."
On March 28, the Supreme Court granted a stay to Texas murderer Patrick Murphy on his claim that a Texas rule allowing only prison chaplains inside the execution chamber, not outside clergy or other spiritual advisors, discriminated against condemned murderers who believe in religions not represented in Texas prison chaplain corps.

These last-minute cases do not always lend themselves to a full explanation at the time of the order, and today Justice Alito filed an ex post facto dissent. First, he says that Murphy's petition should have been denied as needlessly delayed until shortly before the execution. Second, he notes that on the merits the problem of merely providing a spiritual advisor of the inmate's religion is not as simple as it seems, given the many denominations within each of the world's "great religions."

In response, Justice Kavanaugh updates his concurrence. He distinguishes the Ray case, saying that Ray did not raise an equal-treatment claim and that Murphy's petition was relatively more timely. He also reiterates that the constitutional problem is solved by excluding all ministers, state-employed or not, from the execution room, as Texas has subsequently done.

On April 12, the Supreme Court vacated the stay of execution entered by the Eleventh Circuit for Alabama murderer Christopher Price, but it did so too late for the execution to actually be carried out. See this post. At the time, Justice Breyer wrote a dissent claiming that the case is an exemplar for the "arbitrary way" in which death sentences are carried out in the United States.

Today the Court denied Price's certiorari petition. Justice Thomas wrote a concurring opinion "to set the record straight regarding the Court's earlier orders vacating the stays of execution entered by the District Court and the Court of Appeals in this case."

In a late-night dissenting opinion accompanying one of those orders, Justice Breyer asserted that petitioner's death sentence was being "carried out in an arbitrary way" and that Members of this Court deviated from "basic principles of fairness." Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the circumstances leading to the now-delayed execution makes clear that petitioner's execution was set to proceed in a procedurally unremarkable and constitutionally acceptable manner.
The first problem is that Justice Breyer's "dissent omitted any discussion of the murder that warranted petitioner's sentence of death and the extensive procedural protections afforded to him before his last-minute, dilatory filings." In all capital cases, the horrors that these murderers have actually perpetrated should be kept in mind to set the stage and place their complaints in context.

On the evening of Sunday, December 22, 1991, Bill Lynn, a minister, and his wife Bessie returned home after church. Price v. State, 725 So. 2d 1003, 1011 (Ala. Crim. App. 1997). Bill began assembling Christmas toys for his grandchildren while Bessie prepared for bed. Ibid. After the electricity appeared to fail, Bill went outside to check the power box. Ibid. He was then brutally attacked with a sword and a knife by petitioner and his accomplice. Id., at 1011, 1015. According to the trial court, Bill suffered a total of 38 "cuts, lacerations, and stab wounds." App. to Pet. for Cert., O.T. 2018, No. 18-8766, p. 230a (18-8766 App.). "One of his arms was almost severed," and "[h]is scalp was detached from [his] skull." Ibid. Bessie tried to call the police, but the phone lines were cut. Price, 725 So. 2d, at 1011. When she tried to escape and go get help, petitioner and his accomplice ordered her out of the van and attacked her, too. Ibid. They also stole checks, cash, and firearms, and even demanded Bessie hand over her wedding bands. Id., at 1011-1012. Bill "died a slow, lingering and painful death." 18-8766 App., at 230a.
Now let's all wring our hands that this man's sedated death just possibly might not be sedated to the point of complete unconsciousness. Is there any chance that the total intensity times duration of pain that he may feel is even 1% of what Bill Lynn felt? I very much doubt it.

Alabama's law authorizing nitrogen for execution gave inmates a right to elect it. Although not required by the law to do so, the warden gave each inmate written notice of the election right. Justice Breyer complains that this additional consideration, above and beyond the requirements of the law, gave them "only" 72 hours to choose. The plain fact is that was plenty of time, Justice Thomas points out. "No fewer than 48 other inmates took advantage of this election. Petitioner did not, even though he was represented throughout this time period by a well-heeled Boston law firm." If he was well represented, he didn't need the warden's notice at all. His lawyers could have told him. But no. They waited another six months, after an execution date had been set, to take any action.

As noted earlier, the Supreme Court did not lift the stay until it was too late.

The Court's delay in issuing the order happens to have the same effect as Justice Breyer's preferred course of action. As he explained in his dissent, he preferred to discuss the matter at Conference the following day, which would require the State to "obtain a new execution warrant, thus delaying the execution." Price, 587 U. S., at ___-___ (slip op., at 4-5). Justice Breyer asserted that "delay was warranted" in part because the legal issues raised were "substantial." Id., at ___ (slip op., at 5). That rationale does not withstand even minimal legal scrutiny.

    Justice Breyer framed the issue before the Court as "the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment." Id., at ___ (slip op., at 6). That framing was incorrect. The issue before the Court was whether the lower courts abused their discretion in staying the execution. For three independent reasons--all raised by the State in its application--the State was entitled to vacatur. The dissent failed to adequately address any of them.
The three are lack of jurisdiction, unjustified delay, and unlikelihood of success on the merits.

Perhaps those who oppose capital punishment will celebrate the last-minute cancellation of lawful executions. But "[t]he Constitution allows capital punishment," id., 587 U. S., at ___, (slip op., at 8), and by enabling the delay of petitioner's execution on April 11, we worked a "miscarriage of justice" on the State of Alabama, Bessie Lynn, and her family. Governor Ivey Releases Statement on Stay of Execution for Death Row Inmate Christopher Lee Price,(Apr. 12, 2019), https://governor.alabama.gov/statements/governor-ivey-releases-statement-on-stay-of-executionfor-death-row-inmate-christopher-lee-price.
This is a strongly worded opinion, but its wording is justified.

The last of the method-of-execution cases is Justice Sotomayor's dissent from denial of certiorari to Abu-Ali Abdur'Rahman. On the same day that Justice Thomas correctly criticizes Justice Breyer for making no mention of what the murderer did, Justice Sotomayor makes no mention of what the murderer did. So here are the facts from CJLF's brief in Abdur'Rahman's case 16 years ago:

On February 17, 1986, over 16 years ago, James Lee Jones and Harold Devalle Miller murdered Patrick Daniels and attempted to murder Norma Norman. Abdur'Rahman v. Bell, 226 F. 3d 696, 699 (CA6 2000). Jones is the petitioner in the present case, now known as Abu-Ali Abdur'Rahman. See id., at 698, n. 1.
"Petitioner, armed with a shotgun, and Miller, armed with an unloaded pistol, entered the duplex under the pretext of making a drug purchase. Petitioner and Miller displayed their firearms and forced Daniels and his girlfriend, Norma Norman, to the floor. Petitioner then bound Daniels and Norman with duct tape about their hands, feet, eyes, and mouth. After stealing Daniels's bank card, Petitioner forced Daniels to reveal his PIN number. Petitioner also searched the house and found some marijuana in some sofa cushions." Id., at 699.
Petitioner disputes whether he or Miller actually stabbed the victims. Mr. Daniels was stabbed six times in the chest, while begging for his life. Ibid. Ms. Norman was stabbed several times in the back, but miraculously survived. Ibid. She is not able to tell us which of the intruders did the stabbing, because petitioner, not Miller, taped her eyes shut. See ibid. We do know that petitioner personally did the binding and blindfolding that rendered the victims helpless to be slaughtered. See ibid. We also know that petitioner placed his gun barrel squarely between Ms. Norman's eyes. State v. Jones, 789 S. W. 2d 545, 551 (Tenn. 1990). In short, we know to a certainty that Jones/Abdur'Rahman was not just a minor accomplice along the lines of Sandra Lockett. Cf. Lockett v. Ohio, 438 U. S. 586, 597 (1978) (plurality opinion).
Yes, you read those 16s right. The additional time that Abdur'Rahman has continued litigating his case has been longer than the full round of appeal and state and federal habeas review took in the first place.

Justice Sotomayor dissents on the grounds she believes that (1) inmates challenging their method of execution should not be required to identify a better alternative, and (2) states should be required to disclose their sources of lethal injection drugs. Along with not mentioning the facts of the crime, she does not mention that identifying the suppliers of drugs means that anti-death-penalty activists can exercise a "heckler's veto," making so much trouble for the suppliers that they don't consider supplying to be worthwhile.

In Dahne v. Richey, Justice Alito, joined by Justices Thomas and Kavanaugh, dissent from denial of certiorari in a prisoner grievance case where the prisoner insisted on loading up his grievance with gratuitous insults and threats:

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard? Or may the prison insist that the prisoner rewrite the grievance to eliminate any threatening language? In this case, respondent Thomas Richey, an inmate currently serving a sentence for murder in Washington state prison, submitted a written prison grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a "fat Hispanic," but contained language that may reasonably be construed as a threat. Specifically, the grievance stated:

"It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation." App. to Pet. for Cert.109a-110a.
Should prisons and correctional officers have to put up with that? For the time being, at least in the Ninth Circuit.

Myers v. United States is something of an "inside baseball" case for SCOTUS-watchers. It has to do with the propriety of a "grant, vacate, and remand" order where the Solicitor General, on behalf of the prevailing party below, requests it so that the lower court will have an opportunity to reissue the same judgment for what the SG regards as the right reason, rather than the wrong reason.

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