Justice debate death penalty in cert denial

March 10, 2009

The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.

The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.

jpstevensStevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.

“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”

Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

Stevens went on the say that the existence of such “inescapable” delays “reinforces my opinion that contemporary decisions to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.”

thomas2But Thomas took issue with that characterization.

“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.

Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”

Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.

breyer1Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”

As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”

Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”

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The new argument against the death penalty: It costs too much

February 25, 2009

As states around the nation struggle to stretch their budgets to cover payrolls and expenses in this bad economy, opponents of the death penalty are pushing states to repeal the punishment – to save cash.

In Colorado, Kansas, Nebraska, New Hampshire, Maryland, Montana, New Mexico and other states, the discussion around bills seeking to end capital punishment is focusing on dollars and cents.

New Mexico Gov. Bill Richardson, a longtime supporter of the death penalty, said he is considering signing a bill there seeking to end capital punishment for a number of reasons. But the economic argument is “a valid reason in this era of austerity and tight budgets,” he said, according to The New York Times.

Opponents of ending capital punishment call the economic argument short-sighted, adding that the cost of increased crime down the road could dwarf any savings.


Making a statement on the Supreme Court

October 20, 2008

Today the Supreme Court indeed granted certiorari in a case arising from some of the massive immigration raids the government has conducted recently. The case, Flores-Figueroa v. United States, will determine the burden of proof the government must show in prosecuting alleged illegal immigration under criminal identity theft laws. SCOTUSBlog has the deets and the filings on the case.

That was the only certiorari grant the Court issued today, but some of the other justices had more to say on some other matters. And they said it in statements.

Justice John Paul Stevens issued a statement regarding the Court’s denial of certiorari in Walker v. Georgia, a case in which a death row inmate challenged the constitutionality of the state’s administration of the death penalty.

While Stevens joined with the other justices in unanimously denying cert because the inmate had not first sought redress from state courts, Stevens still took the opportunity to say more. And procedural defect aside, in Stevens’ opinion, the petitioner – who asserts that the state has failed to adhere to self-reporting and other requirements to ensure that the death penalty is not arbitrarily administered – has a point.

“Justice [Potter] Stewart was the principal architect of our death penalty jurisprudence during his tenure on the Court,” Stevens wrote. “In his separate opinion in Furman v. Georgia, he observed that death sentences imposed pursuant to Georgia’s capital sentencing scheme were ‘cruel and unusual in the same way that being struck by lightning is cruel and unusual.'”

Although the Georgia statute was amended since the Furman decision, Stevens said the Court’s acceptance of the new law’s constitutionality was based on its administration in a way that “would protect against the imposition of death sentences influenced by impermissible factors such as race.” If that is not happening, Stevens reasoned, then it could run afoul of the Eighth Amendment and the state’s highest court should have looked in to that issue.

“The Georgia Supreme Court owes its capital litigants the same duty of care and must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race,” Stevens wrote.

Stevens also noted that the denial of cert does not prevent the petitioner from trying again – something that may likely happen since he knows he has at least one vote in favor of granting cert.

Walker will not get the vote of Justice Clarence Thomas, who also wrote a statement regarding the case. “Petitioner brutally murdered Lynwood Ray Gresham, and was sentenced to death for his crime,” Thomas wrote. “Justice Stevens objects to the proportionality review undertaken by the Georgia Supreme Court on direct review of petitioner’s capital sentence. The Georgia Supreme Court, however, afforded petitioner’s sentence precisely the same proportionality review endorsed by this Court.”

The statements come after other justices last week made their thoughts known about cert denials through statements. Most noted was a statement by Chief Justice John G. Roberts, Jr. who fancied himself a crime writer of sorts and talked about the tough-as-cheap-steak nature of a Philly cop’s life.


Supreme Court denies Georgia death row inmate’s appeal

October 14, 2008

This morning the U.S. Supreme Court denied the certiorari petition of Georgia death row inmate Troy Anthony Davis. Davis had sought an appeal before the high court to determine whether a death row inmate who asserts a strong claim of innocence can be executed.

Since Davis’ conviction for the 1989 slaying of a Savannah police officer, seven of the nine witnesses who testified against him have recanted their stories. Those repudiations, coupled with the lack of DNA evidence implicating Davis to the killing has caused a number of high-profile figures to advocate on Davis behalf, including Pope Benedict XVI, Archbishop Desmond Tutu, and singing group the Indigo Girls.

The Court had stayed the execution of Davis pending a ruling on his petition. Today’s order allows Georgia officials to set a new execution date.

Virginia Sloan, President of the Constitution Project, expressed disappointment that the Court allowed the verdict to stand as a matter of procedure. “The U.S. Supreme Court’s decision to refuse to hear Troy Davis’ appeal constitutes the mere appearance of justice,” Sloan said in a statement. “Mr. Davis deserves to have his claims of innocence fully evaluated. Instead, the courts have followed their procedures to this ultimate – and untimely – end. Justice should be more than a formality, and the Supreme Court should be more than a rubber stamp.”


Supreme Court denies rehearing child rape case, but justices still spar

October 1, 2008

Today the U.S. Supreme Court declined to rehear the case in which the Court struck down the Louisiana statute that made child rape an offense punishable by death. But even in agreeing not to rehear the matter, Justice Antonin Scalia issued a statement blasting members of the Court’s majority in the case.

The case, Kennedy v. Louisiana, drew attention after the discovery of a little-known 2006 military law that made child rape a capital offense. Neither party in the case realized the law existed when the argued before the Court, and Court based its decision striking down the law in part on the absence of tradition of making child rape a capital offense.

Last month the Court asked parties in the case to file supplemental briefs “addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing.”

The court did issue a modified opinion in the case, which can be found here.

In a statement regarding the modification and the denial of rehearing, the Court indicated that Justices Clarence Thomas and Samuel Alito, Jr. voted in favor or reviewing the case.

Justice Anthony Kennedy, author of the opinion, noted in today’s statement that although military rules allowing the death penalty for rape have been in place for more than a century, “[t]he death penalty, however, has not been carried out against a military offender for almost 50 years.” Kennedy added that the 2006 law’s “authorization of the death penalty in the military sphere [for child rape] does not indicate that the penalty is constitutional in the civilian context.” Kennedy’s statement was joined by the other four justices who made up the 5-4 majority in the case last term.

In a separate statement, Justice Antonin Scalia, joined by Chief Justice John G. Roberts, Jr., noted that he voted against rehearing the case “because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.”

But Scalia derided the majority’s “lack of consensus” rationale as merely a way to “giv[e] effect to the majority’s own preference.”

As for Kennedy’s distinction between military law and civilian law, Scalia wrote: “It is difficult to imagine . . . how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.”

The court also granted certiorari in 10 cases, ranging from Fifth Amendment rights of indigent defendants to liability under CERCLA for environmental cleanup costs. The order list can be found here. More coverage of those grants will be coming up later on this blog and on the Lawyers USA website.


Supreme Court stays Georgia execution

September 24, 2008

Less than two hours before Georgia death row inmate Troy Davis was to be put to death last night, the U.S. Supreme Court stayed the execution until the justices can consider Davis’ petition on Monday.

Davis, who was convicted of killing a police officer in 1989, has asked the court to review his case, saying that the majority of witnesses who testified against him have since recanted their stories, and citing the absence of physical evidence in his conviction. Davis maintains his innocence. Among the people who have urged clemency for Davis are former President Jimmy Carter and Pope Benedict XVI.

The stay will remain in effect if the Court agrees to consider his case. If his petition is dismissed, the stay will be lifted.


Supreme Court could reconsider death penalty for child rape

September 9, 2008

The issue of whether the death penalty should be allowed in cases of child rape could be reheard by the Supreme Court this term.

Yesterday the Court ordered that parties in the case of Kennedy v. Louisiana file supplemental briefs “addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing.”

The rehearing was requested by Kennedy and Solicitor General Gregory Garre after the discovery of a little-known 2006 military law that made child rape a capital offense. The law was approved by Congress and adopted into Manual for Courts-Martial by executive order of President George W. Bush.

When the Court struck down the Louisiana law making child rape punishable by death, it based the decision in part of the absence of other laws punishing child rape by death.

The Court gave Kennedy and the Justice Department only 11 days in which to file their briefs. The State of Louisiana has until one week later to file its response. A decision of whether the Court will take up the case could come as soon as its first official conference of the term, scheduled for Sept. 29.