"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Thursday, October 8, 2015

US High Court Starts Hearing Death Penalty Cases

(Source: The New Yorker)
The U.S. Supreme Court began hearing arguments Wednesday questioning how the death penalty is carried out in the country.

Executions are carried out unevenly in the United States, with 31 states still sanctioning the death penalty for a range of crimes, while 19 states have banned capital punishment.

None of the cases the Supreme Court has agreed to consider represents an attempt to overturn capital punishment in the United States, but rather to raise legal questions on how states conduct executions.

In the first of at least 6 capital punishment cases it expects to consider during the next several months, the court heard lawyers argue whether death sentences should be reinstated against 2 brothers involved in a 2000 crime spree in the central state of Kansas that left 5 people dead. The state's highest court threw out death sentences against the brothers.

The case centers on whether each brother should have been entitled to a separate sentencing hearing and whether the trial judge erred in his instructions to jurors. A ruling is expected by next June.

In other cases, the high court is considering whether judges have too much discretion in imposing death sentences, whether prosecutors improperly struck all four prospective jurors who are black from a capital punishment case, and whether a judge who initially prosecuted a death penalty case should have removed himself from considering an appeal in the case.

Source: Voice of America, October 8, 2015


Supreme Court defends contested death penalty verdicts in Kansas

A Supreme Court deeply divided over the death penalty appeared slightly more persuaded Wednesday that death sentences may have been appropriately rendered in 2 notoriously heinous murder cases from Kansas.

During oral arguments that exposed the same tensions and fault lines over capital punishment first revealed on the high court's last day of decisions in June, a majority of justices defended death sentences against three men that had been thrown out for procedural reasons by Kansas' highest court.

It was the first of several days the high court will devote to death penalty cases this fall, following its 5-4 decision that upheld a controversial form of lethal injection implicated in 3 botched executions last year. When that decision was announced June 29, 4 justices jousted emotionally over the relative correctness or cruelty of capital punishment, and Justice Stephen Breyer said it might be unconstitutional.

Jonathan and Reginald Carr
Jonathan and Reginald Carr
Wednesday's cases involved the Kansas Supreme Court's decisions striking down death sentences against three convicted murderers because of instructions given to the juries and, in the case of 2 brothers, the use of a joint rather than separate sentencing hearings. The state sought to restore the death sentences, and a majority of justices appeared to agree.

Noting that 6 of the state's 9 death row inmates could win new hearings if the Kansas court's ruling stands, Justice Antonin Scalia said, "Kansans, unlike Justice Breyer, do not think the death penalty is unconstitutional." He later went out of his way to read the gory details of the more notorious murder case, in which 5 men and women were repeatedly raped and abused before 4 were murdered and the 5th shot execution-style.

Justice Samuel Alito, who wrote the court's June opinion in Glossip v. Gross upholding lethal injections, called the Kansas killings "some of the most horrendous murders that I have seen in my 10 years here, and we see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst."

Nevertheless, the Kansas Supreme Court tossed out the death sentences for two reasons. It said the juries were not told that mitigating factors such as troubled childhoods did not need to be proven beyond a reasonable doubt, and it said brothers Jonathan and Reginald Carr should have had separate sentencing hearings.

Justice Sonia Sotomayor took the lead in questioning the death sentences, as she did earlier this year in criticizing Oklahoma's lethal injection protocol. She said the state court's criticism of the jury instructions was reasonable, if not under the Constitution, then under state law.

"What a wonderful system we've created," she said sarcastically. "Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them. And when they are wrong on a legal conclusion applying our test, we jump in and reverse them."

But even the court's more liberal members expressed doubt about the Kansas court's ruling that the Carr brothers deserved separate sentencing hearings, so that a jury could parse accusations about who was the gunman, who was the leader, and who had a more troubled childhood. Breyer warned that could lead to similar demands in countless numbers of trials involving gang members.

"Given the kind of evidence that was presented in this case," Justice Elena Kagan said, "the idea that somebody was a lousy big brother seems pretty small in the scale of things."

Source: USA Today, October 8, 2015


For Justices, Death Penalty Cases Are Personal

With the long black robes, red velvet curtain and secret conference room, the U.S. Supreme Court can seem like a pretty weird place. But the court is never weirder than when the death penalty is being discussed, as it was in Wednesday's oral arguments. On the surface, the justices must decide whether co-defendants can have their sentences determined in a single hearing, and whether a jury must be told that factors mitigating against a capital sentence don't need to be proved beyond reasonable doubt. But underneath these technical legal issues, something more profound is at stake: the immediate, personal involvement of the nine justices in the intentional killing of human beings.

Because the court thinks "death is different," its usual rules for choosing which cases to hear don't apply. It considers cases where there's no split of authority among the courts of appeal or among the states, and it corrects errors that it thinks were made by the courts below. More than that, the court gets into the guts of how the death penalty is determined and administered, making it the de facto supervisor of what Justice Harry Blackmun memorably called the "machinery of death."

Quicktake Lethal Injections

The court doesn't hear every death penalty appeal, but the clerks and justices do in practice review every legal argument made by desperate death row inmates and their lawyers as their dates of execution draw near. For decades, the court has employed a special "death clerk," not one of the justices' clerks who typically serve for a year, but a permanent staff member who has developed an expertise in the arcana of state and federal death penalty law. The death clerk monitors the appeals, makes sure the justices vote on them in an orderly fashion, and communicates the responses back to the states and the lawyers.

Although the court prefers otherwise, sometimes all this happens in the dead of night, in anticipation of a crack-of-dawn execution. If it's after hours, each justice leaves a law clerk behind in chambers to monitor developments and communicate with his or her boss at home. I can tell you I've never experienced anything eerier than staying up to the small hours in the darkened, almost-empty Supreme Court building, waiting for someone to die in Texas or Arizona or Oklahoma so that I could go home.

I mention the detail to suggest how closely the justices are involved in administering the death penalty -- and how that experience becomes part of the justices' professional routine. There are many fewer executions now than there were in the late 1990s, when I clerked, but reduced numbers don't, I think, reduce the psychological impact -- possibly the reverse.

Public attention tends to focus on whether the court will strike down the death penalty as cruel and unusual, which it did in effect from 1972 to 1976. The day-to-day death penalty jurisprudence isn't as legally dramatic. But the right answer often depends on what you think about the death penalty writ large.

Take the question of whether it's fair to sentence co-defendants in the same proceeding. The Carr brothers, whose case is before the court, were convicted of a vicious crime spree in which they killed 5 people and almost killed a 6th. Reginald, the older brother, seems to have been leader of the 2. Jonathan, the younger brother, presented evidence at trial that made Reginald look worse than he -- in the hopes of getting the jury to sympathize with him as a follower who didn't deserve the death penalty. Reginald's lawyers have argued that this was unjust. Jonathan's lawyers, for that matter, argue that sentencing him alongside his brother must've prejudiced the jury against him.

If you oppose the death penalty, you'll probably think the answer is pretty obvious: Each man bears independent guilt, so each man should get a separate sentencing hearing.

But if you think the death penalty is warranted, you might conclude that there's nothing wrong with sentencing murderers together for crimes they committed together. Criminals are tried together and sentenced together all the time for joint crimes. Indeed, a jury that considered the crimes of both Carrs and their punishments could arguably do it better in a single proceeding than in 2 separate ones.

2 justices, Stephen Breyer and Ruth Bader Ginsburg, made headlines last term by saying they consider the death penalty unconstitutional in all circumstances. The court's 2 younger liberals, Sonya Sotomayor and Elena Kagan, kept their powder dry, declining to join their older colleagues' position at this comparatively early stage in their Supreme Court tenures.

The only way the death penalty will be struck down the foreseeable future is if Justice Anthony Kennedy thinks it should be. Kennedy doesn't like to be pigeonholed as a bleeding-heart liberal, and given his landmark liberal vote for gay marriage in June, it's very unlikely that he wants to become a death penalty pioneer, at least for now.

That leaves the court with skirmishes over procedure that stand in for the real question: How much can the justices tolerate their intimate connection to death? For now, the answer is that they can. Dostoevsky, no stranger to capital punishment, said it best: "Man grows used to everything, the scoundrel!"

Source: Bloomberg News, Noah Feldman, October 8, 2015

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