Recently in Death Penalty Category

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.

Glossip v. Gross Podcast

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For those of you who can't get enough of my commentary on Glossip v. Gross (and I know you're out there), yesterday's FedSoc teleforum is now available as a podcast.

Seriously, I'm told that the number of downloads of the podcast versions of the teleforums greatly exceeds the live participation on the calls, and I thank the Federalist Society both for hosting the teleforum and making the podcast available so promptly.

A small newspaper in central Pennsylvania published an editorial on Monday hailing Governor Tom Wolf's statewide moratorium on the death penalty.  It begins with a quote from novelist Raymond Chandler claiming that law is not justice but rather an imperfect mechanism that randomly jets out results - sometimes we get what we call justice; sometimes naught. 


The editorial proceeds by mentioning the case that led to the moratorium:  Hubert Lester Michael Jr.  Michael was convicted of the murder of 16 year old Trista Eng.  Eng had posted an ad to sell a chair, which Michael responded to.  Later Michael picked her up while she was hitchhiking. He bound, raped and killed her.  Eng's life was over at 16 because she posted an ad to sell someone a chair.   Her family is left to pick up the pieces. 


To which the editorial staff at the York Daily Record state:

All of us feel for these families. Many of us will never fully understand what they are going through.

And certainly, for them, and for many others, the death penalty is an emotional issue. But for the sake of justice, however imperfect, we have to be able to take a rational look at the death penalty and its purpose, its cost and its flaws, no matter how difficult that may be.

Mr. Michael is a poor candidate for this kind of rational reflection. He admitted his crimes. He had a history of brutality. He is a monster. It is easy to say, as York County District Attorney Thomas Kearney did, that he is "the poster child" for the death penalty.

Perhaps Mr. Michael deserves death.

But he is not what this debate is entirely about.

The rational debate about the death penalty is - at base - really about retributive justice.  The abolition movement is fond of recounting the "death is different" motto, which the Supreme Court invoked at least as far back as 1977.  But that is precisely the point: murder is a uniquely grievous crime that calls upon any civilized and orderly society to punish in an exceptional manner.   Society, of course, wants to deter murder and it wants to preserve the safety of its citizens, but justice, at least in this world, is an entirely human enterprise and it derives from the simple idea that people deserve to be punished when they have transgressed seriously against the social norms embodied in the law.

There is no "perhaps" in Michael's just deserts; what he deserves is worse than death but he mercifully gets less.  The conversation, though, is about deserving.  It is emotional but that does not render it irrational.  The touchstone of our humanity is that we can feel for others: the families of the victims; the outrage at the conduct of someone like Michael; the loss of safety that we all experience upon hearing of a horrendous crime; the brief thought: that could have been my child.  It is this same emotional affair that lends us to extend a lesser punishment for those who have truly extenuating circumstances.  Justice is not cold nor should it be because it is an entirely human endeavor not a mechanical one.   The debate about the death penalty does include concerns about its reliability as does the entire criminal justice system, but it is, at heart, a debate about what people like Hubert Lester Michael deserve and that is reason at its best. 

The outcome of the much-covered case, highlighted in articles here and here, filed by several death row inmates in Oklahoma holds great significance for the future of California's death penalty system.  In a 5-4 decision on Monday, the U.S. Supreme Court ruled on the case of Glossip v. Gross, determining that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition of cruel and unusual punishment.  Gov. Jerry Brown's administration now has 120 days to propose a new lethal injection method, as stipulated with families of murder victims in a recent settlement.  The ruling will fortunately create greater challenges for death penalty opponents and death row inmates, but a resumption of executions is not without obstacles:

-State law requires extensive public comment on a new execution method, including mandatory administrative procedures and hearings, a lengthy process that could take a year.

-Opponents of the death penalty may decide to return the ballot with a measure to replace the death penalty with life without parole, such as the one that was narrowly defeated by voters in 2012.

-Drug manufacturers are making it increasingly difficult for prisons to obtain lethal drugs for executions.

Glossip Symposium at SCOTUSblog

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It's been a busy day in the wake of Glossip.  The case has drawn a lot of media attention.  We will have some links to coverage tomorrow.

Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.

SCOTUSblog is having a symposium on the case.  The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.

I have sent in my entry.  I will post the last section after the break.  I'll have a link to the The full post when it is available on SCOTUSblog.

Update:  The posts by Deborah Denno and Stephen Schwinn are available now.  They are not happy campers.
The title of this post is taken in part from Ed Whelan's column in NRO's Bench Memos. His observations are especially pertinent to the claim, repeated ad nauseum, that the death penalty is headed for extinction.

There was a time when this was true.  As Ed reminds us, however, it was 43 years ago.  On this very day in 1972, in Furman v. Georgia: 

...five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can't agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. 

This morning, about two generations and 1411 executions later, the Court issued its opinion in Glossip, saying, among many other things (emphasis added):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

So much for our abolitionist friends (or anyone) claiming to have a crystal ball.


1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

2.  If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg).  Neither did.  It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

3.  The abolitionist shake-and-jive of trying to dry up lethal injection drugs as a means to end the death penalty not only failed; it backfired.  The Court has caught on, and caught on explicitly.

In my view, today's decision was the most significant Supreme Court victory for the death penalty since Gregg was decided in 1976.

P.S.  Last week, conservatives were doing a good deal of grousing about Burwell and Obergefell, and generally about Republican Supreme Court appointments. CJLF takes no position on those two cases.  I personally, however, would like to thank President Reagan for Antonin Scalia and President George H. W. Bush for Clarence Thomas, both of whom shredded the Breyer dissent.  And a special thanks to President George W. Bush for Sam Alito, whose precision, perceptiveness and analytical rigor were on bold display this morning.

UPDATE:  The CBS Radio News at 1 pm EDT led off with the Glossip case, and within 15 seconds was playing a comment by Kent.

Victory in Glossip

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The opinion is here, 5-4, by Justice Alito.  I will have more later.

Update:  At the end, the opinion of the Court says,

Finally, we find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake." Post, at 28. That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments.
There is a side debate between Justices Scalia and Thomas and Justice Breyer regarding the constitutionality of capital punishment itself.  At first glance, Justice Breyer's argument appears to be all the usual stuff we have refuted time and again.

Update 2:  CJLF has this press release.

Boston Marathon Bomber "Apologizes"

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Dzhokhar Tsarnaev apologized to his victims today, at least those (being quite a few) who are still alive to be able to hear it. CNN has the story.

I have probably heard less convincing apologies in my years as a litigator, but I can't recall one offhand.  From the story, few of the victims were convinced either.

The taxpayers will now spend hundreds of thousands or millions pursuing appeals and habeas remedies that knowledgeable people regard as ranging from dubious to absurd.  None will be absurd enough, however, to contest his factual guilt.  If we need to save money in the criminal justice system, this would be a good place to start.

There is not a whole lot left to say about this awful case.  The best capital defense lawyer in the country could not convince a single juror sitting in Boston, of all places, to vote for LWOP.

A sensible system would execute Mr. Tsarnaev promptly and move on to the next abolitionist poster boy, Dylann Roof.  But a sensible system would not tolerate the delay and expense already built in.

Oral Argument in Jones v. Davis

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USCA 9 has scheduled oral argument in Jones v. Davis for August 31 at 9:30 in Pasadena.  We don't know who the panel is yet.

This is the case where a federal district judge in California said that because the opponents of the death penalty have been successful in obstructing the will of the people they now get to throw it out altogether.  See prior posts:

August 21, 2014, with links to earlier posts.

Jones v. Chappell Appeal, August 26, 2014

Jones v. Chappell Brief, December 2, 2014

CJLF Brief in Jones v. Davis, December 11, 2014

The panel is critical.  If we get a majority of persons of sense, the decision will be reversed at this point.  If not, we will have to go higher -- possibly (but not likely) the Ninth Circuit pseudo-en-banc, and failing that to the Supreme Court.  I am confident that the Supreme Court will take the case and reverse if it comes to that, but hopefully we will get a reversal earlier.
So often when the media perceive a "crisis," we hear the call for a "national conversation" about what should be done.  There have been repeated calls for a "national conversation" about race, the war on drugs and its consequences, policing, and "mass incarceration."  An outrage, we are told, needs the nation's focused attention, and, more than that, our action.

There is nothing we can do to bring back the victims of the Charleston massacre.  We know who the killer is and why he did it. Realistically, the only thing left in that case is to determine the punishment.  Where oh where is the call for a "national conversation" about what punishment fits the enormous damage the massacre brought about?  The re-opening of terrible wounds?  The trauma to the city and the country?

I haven't heard a single call for such a "national conversation" and I think I know why.  

No sensate person could (or, I suspect, does) think that a jail term, no matter its length, is fitting justice for this atrocity.  Putting entirely to one side the national shock and grief it has caused, the deliberate slaughter of nine defenseless people, no matter their race, by a calculating shooter, no matter his, calls for the death penalty. This is Dzhokar Tsarnaev, lynching-era version.  The Beltway sniper telescoped to ten minutes.  Timothy McVeigh without the truck.

It's telling that the liberal media refuse to call for a "national conversation" about why, for murders opening an ocean of social poison as ghastly as this, our sentencing law requires something more than jail.  What it tells you is that abolitionist thinking is impervious  --  not impervious as in steadfast; impervious as in intentionally oblivious. In Dylann Roof, abolitionist refusal to consider the horrendous facts of individual cases comes face-to-face with its new Patron Saint.

Enjoy him, guys.  You own him now.

A Chance for Obama to Speak Up for Justice

President Obama made some remarks about the Charleston church massacre. They were notable both for what they included and what they omitted.

What they included, as reported by the Washington Post, was this:

 "We don't have all the facts, but we do know that once again innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun," he continued. "Now is the time for mourning and for healing, but let's be clear: At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries.  It doesn't happen in other places with this kind of frequency."

Is any of that true?

The Charleston Church Massacre

Lawyers and law professors have a tendency, I have found over the years, to become entranced by the nuances of the latest Supreme Court decision while overlooking the elephant in front of their eyes.

Last night, a young man named Dylann Roof shot dead nine defenseless people at a prayer and Bible study meeting at the Emanuel AME Church in Charelston, SC. The shooter was white and his victims black; apparently he was motivated by racial hate. The WSJ has the story.

The racial angle is going to get a great deal of coverage, but we need to keep our eye on the ball.  The specific nature of Roof's motive is irrelevant.  As long as he knew right from wrong and could control his actions in light of the difference, this is yet another example of why South Carolina is wise to keep the death penalty (and why states like Nebraska would be wise to bring it back).

The idea that a jail term could be just or proportionate punishment for gunning down nine people at a prayer meeting is not just mistaken.  It's preposterous. This morning, the Supreme Court parsed through the legal tangles in a couple of capital cases, and those will be the stuff of some entries here, including (probably) by me.  But what happened last night in Charleston was  --  let's say it out loud  --  an atrocity.  In the end, the Supreme Court's main job is to facilitate the Framers' understanding that, for some cases, imposing the death penalty is a sober society's right and power.
The Supreme Court in Davis v. Ayala held, 5-4, that the Ninth Circuit erred in granting habeas to a California triple murderer.  The case is most notable, in my view, for its disciplined application of the harmless error doctrine and its respect for the AEDPA.  I also can't help thinking that the Court is becoming impatient with interminable delays fostered by years of procedural disputes long past the time, and having next to nothing to do with, the ascertainment of the defendant's factual guilt. Thus the majority opinion, written by Justice Alito, begins:

A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala's application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit's decision was based on the procedure used by the trial judge in ruling on Ayala's objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution's peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy.  On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt.  The Ninth Circuit, however, held that the error was harmful.

The Ninth Circuit's decision was based on the misapplication of basic rules regarding harmless error.  Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. ยง2254(d).

The Abolitionist Now-You-See-It Game

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One of the central arguments for abolishing the death penalty is that life "with no possibility of parole" will keep us just as safe and will impose all the retribution we need (or should tolerate) in the 21st Century.  We heard this over and over in Boston Marathon case:  That if we'd just put Tsarnaev in jail for life, he'd be miserable for decades, contemplating the suffering he caused.

It's all double-talk.  Don't fall for it.  Abolitionists have no intention of stopping when they have ended the death penalty  --  and, given large chunks of their philosophy, why should they?  They tell us that people can change, that redemption is always possible, that the killer was himself a victim, and that after a certain age (there doesn't appear to be much agreement about what age), it's simply not worth it to the taxpayers to pay the bills for geriatric prisoners.

Or, to sum it up, LWOP is a now-you-see-it-and-now-you-don't game.  There is no such thing as LWOP even today  --  legislation can retroactively reduce prison terms, and the executive can grant clemency.  And even less will LWOP be around for long if we abolish the death penalty; to the contrary, the groundwork for abolishing LWOP is already being laid.

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