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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Ted Cruz really, really loves the death penalty

Presidential hopeful Ted Cruz
Presidential hopeful Ted Cruz
Ted Cruz would represent a lot of firsts should he be elected president: He'd be the first Hispanic president, and the first president to be born in Canada (or anywhere outside the 50 states, for that matter). But he'd also be the first president ever to have clerked for the Supreme Court. And Cruz has cited his subsequent record before the court, where he has presented oral arguments nine times (eight as solicitor general of Texas), as an important credential both in this presidential campaign and in his come-from-behind 2012 run for Senate.

Five of his nine Supreme Court appearances related to the same issue: the death penalty. In each case, Cruz represented the state of Texas and defended capital punishment in cases where even many advocates would normally be squeamish. He defended executing rapists who had killed no one; executing the mentally ill; and executing a man with an IQ of 78. He lost those three cases, all by narrow 5-4 votes. But his two other appearances related to the same case, in which Cruz was opposed by the Bush administration, the Mexican government, and the International Court of Justice. Cruz won, and the defendant was executed five months later.

In 2007, Cruz argued before the Court in Panetti v. Quarterman, a case that weighed whether Texas could execute Scott Panetti, a clearly mentally ill man convicted of killing his estranged wife's parents. Panetti, who is schizophrenic, has said that a figure named "Sarge" controlled him during the murders, and claimed that "demons had been laughing at him" after the murders. He represented himself at his first trial, wearing a cartoon cowboy outfit and "summon[ing] the pope, John F. Kennedy and Jesus Christ as witnesses." Panetti's psychiatric evaluation found that while Panetti was clearly delusional about the context of his case, he was aware that he murdered his parents-in-law, aware of his punishment, and aware of why Texas wanted to execute him. Lower courts had ruled this was enough, and that Panetti was sane enough that an execution would not constitute cruel and unusual punishment.

Cruz, defending Panetti's execution, didn't argue on substantive grounds but claimed that Panetti could not validly bring up the issue, as he did not raise mental incompetence–based arguments in his first habeas corpus petition seeking reprieve from execution. The Court ruled against Cruz and Texas, 5-4, noting that Cruz's position has some bizarre implications, such as that a prisoner who becomes insane on death row after filing his first habeas petition cannot seek relief, even though executing him would be clearly unconstitutional under a decades-old Supreme Court decision. Panetti is still fighting his execution in court, most recently getting a stay last December.


Source: Vox, Dylan Matthews, January 2, 2016

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