USA - Supreme Court may vote against death penalty in a near future

The End of the Death Penalty? Recent Supreme Court opinions suggest there are five votes to abolish capital punishment. On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate. After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.” But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question. This case may become an example of winning a battle while losing the war. In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments. While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.” They are not the first sitting justices to call capital punishment’s constitutionality into question. Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment. Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.” Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment. But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty. Part of this plausibility stems from a political mood far more favorable to abolition than at any other point in the modern era. In the past few years, a number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have formally abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have vowed not to execute anyone. And a number of states, including the four moratorium states and also places like Kansas, Montana, New Hampshire, and Wyoming, have performed one execution or fewer per decade over the past half-century. It is no surprise, then, that death sentences have reached historic lows nationally. The death penalty is disappearing even in the Deep South, as Louisiana, Mississippi, North Carolina, and South Carolina have seen major drops, such as 70 percent declines in new death sentences. Texas, a state that reached a high of 48 death sentences in a single year, had no new death sentences in the first half of 2015. The Supreme Court’s own struggle with capital cases further underscores this sense of plausibility. Justice Anthony Kennedy—who presumably would have the deciding vote on whether to abolish the death penalty—recently emphasized that the court’s capital punishment jurisprudence law lacks a “unifying principle” and that it “has produced results not altogether satisfactory.” The court has taken a piecemeal approach to try to ensure that the death penalty is reserved for the worst of the worst offenders. The reality, though, is that even after prohibiting the execution of juveniles, the intellectually disabled, and individuals who participated in a crime but did not do the killing, the court’s approach is still, as Kennedy says, “not altogether satisfactory.” Kennedy finally articulated a vision of a fluid, sophisticated approach to gauging societal norms. The most damning problem is the inability to guarantee the factual guilt of the people juries send to death row. Justice Antonin Scalia once underscored that lethal injection was an “enviable” death compared with that suffered by an “11-year old girl raped by four men and then killed by stuffing her panties down her throat.” Last year, DNA evidence demonstrated that Henry Lee McCollum and Leon Brown, the two men sentenced to death for the crime Scalia used as his poster case for the death penalty, are innocent. Or consider the case of Paul House, an inmate sentenced to death who claimed that the scratches on his arm came from “tearing down a building, and from a cat”—not as the result of a struggle with the victim. Chief Justice John Roberts mockingly commented on House’s version of events: “Scratches from a cat, indeed,” he wrote. In 2009, DNA evidence exonerated Paul House. Even among those who are guilty of an aggravated homicide, the Constitution limits the death penalty to those people “whose extreme culpability makes them the most deserving of execution.” Thus, as Kennedy recently explained in Hall v. Florida, “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Similarly, in Roper v. Simmons, Kennedy reasoned that “the lesser culpability of the juvenile offender” renders persons younger than 18 categorically ineligible for execution. These categorical prohibitions have not guaranteed that only the most deserving offenders will be executed. In fact, most offenders who were recently executed possess signs of significant mental deficits. Two examples from this year: Georgia executed Andrew Brannan, a bronze-star earning Vietnam veteran who developed severe post-traumatic stress disorder and had twice been hospitalized as a result of his bipolar disorder. Texas executed Robert Ladd, a man with an IQ score of 67 who could not prove to the satisfaction of the state courts that he was intellectually disabled. Justice Breyer highlighted these flaws in his Glossip dissent. And he deemed them fatal: “The Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems,” he wrote. “Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed.” In response, Scalia referred to Breyer’s arguments as “surrealism.” Justice Clarence Thomas described the idea that the Eighth Amendment prohibits arbitrary death sentencing as “imaginary.” He then suggested to Breyer that if he wants to eliminate arbitrary outcomes, “the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.” Justice Scalia wrote, “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” But the Supreme Court has affirmed time and time again that the prohibition on cruel and unusual punishments is drawn from society’s current standards of decency as they have evolved over time. As Kennedy wrote last week in the context of marriage equality: The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions. For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice. Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states. Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.” In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.) It was Justice Kennedy, though, in Obergefell v. Hodges, the marriage case, who finally articulated a vision of a fluid and sophisticated approach to gauging societal norms: There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. … Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America. Robert J. Smith is an assistant professor of law at the University of North Carolina at Chapel Hill. (Sources: slate.com) - The Good News Buried in the Supreme Court’s Lethal Injection Decision. Both Justices Breyer and Ginsburg indicated that they view the death penalty as unconstitutional. Could three more justices agree with them in the near future? In a week of transcendent jurisprudence, the Supreme Court’s endorsement of Oklahoma’s death penalty cocktail stands as a demoralizing reminder of what business as usual looks like on the Roberts Supreme Court. By a 5-4 margin in Glossip v. Gross, the Court found no constitutional barrier to executioners employing midazolam, the barbiturate designed to render prisoners unconscious so they don’t feel pain while other drugs in the cocktail stop their heartbeat and breathing. This despite ample evidence, as Justice Sonia Sotomayor wrote in her dissent, that midazolam, a relatively mild sedative, may do little to protect prisoners on the lethal injection gurney from unbearable and protracted pain associated with the cocktail’s other drugs: what she called “the chemical equivalent of being burned at the stake.” And yet: Sometime in the not-so-distant future this case may be assessed as a turning point. That’s because Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, used the occasion to issue a careful but unambiguous dissent not just from Oklahoma’s particular lethal injection cocktail but also from the American death penalty itself. Breyer openly pleaded for someone to bring a case which would allow the Court to fundamentally reconsider capital punishment for the first time since 1977: “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.” And he went so far as to lay out a litigant’s roadmap: data, charts and arguments demonstrating today’s death penalty is both cruel (massive inequities, the likelihood of false conviction and execution) and unusual (barely one-third of the US population now lives in states with an active death penalty). “I believe it highly likely that the death penalty violates the Eighth Amendment.” —Justice Stephen Breyer. Breyer’s dissent joined by Ginsburg marks an extraordinary step for two senior justices who, whatever their private feelings, have on the bench supported capital punishment throughout their careers. The last sitting Justice to oppose capital punishment actively and persistently was Thurgood Marshall, who believed the twisted legacies of racism and poverty render any notion of an equitable death penalty a bitter joke and so would not vote to uphold any execution for any reason. Since Marshall’s retirement in 1991 a few other justices have come to share his view—all of them, interestingly, Republican appointees—but always as career-end declarations. Nixon’s appointee Justice Harry Blackmun—whom Breyer replaced in 1994—wrote that he would “no longer tinker with the machinery of death,” but that was in the very last months of his very last term. Justices Lewis Powell (Nixon) and John Paul Stevens (Ford), who both voted to reinstate capital punishment in 1977, eventually said they wished they could take it back—but by that point each had retired from the Court. For a quarter century, through four presidencies and two chief justices, the Supreme Court has been the ultimate death-qualified jury; the only difference between the justices has been how they measure, as Ginsburg put it in her confirmation hearings, “the tension between finality and fairness.” Breyer and Ginsburg, both on the Court for more than 20 years, now seem determined to change that pattern of judicial deathbed conversions. Instead, they are inviting abolitionists to bring the right case while they are still alive on the bench and kicking. As a strategic step their dissent this week provoked seething counterarguments by Justices Scalia and Thomas, couched as concurrences with Justice Samuel Alito’s majority lethal injection opinion. Why now for Breyer and Ginsburg? In part, perhaps, simple disgust with the terms of debate in Glossip—the unseemly spectacle of the highest court in the land arguing the finer points of how to poison human beings, in the face of far more basic and widespread inequity in the death penalty. In part maybe because both Ginsburg and Breyer are old enough to be conscious of legacy, and are reluctant to be the latest justices to renounce the death penalty when it is too late to do anything with that rethinking. But the most important reason is probably what Justice William Brennan (himself a canny death penalty opponent) described as the most important skill of a Justice: the ability to count to five. Breyer and Ginsburg know that Justice Anthony Kennedy, the author of this week’s marriage equality ruling, has also become a vocal critic of solitary confinement and other prison abuses. He, along with Obama appointees Kagan and Sotomayor, may be persuadable. And while Kennedy voted this week in favor of Justice Samuel Alito’s ruling upholding the constitutionality of midolazapam, he notably did not sign his conservative colleagues’ vociferous Breyer-bashing concurrences. Breyer and Ginsburg seem to be betting that more than two justices share the understanding, implicit in their dissent, that the death penalty is as deeply implicated in the politics of racism and fear mongering as the Confederate flag. In putting capital punishment on the Court’s notional docket now, Ginsburg and Breyer are suggesting that at least one member of the conservative bloc may be open to defection while he can still do some good. (Sources: thenation.com).