America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Could Scalia's Death Alter SCOTUS on Death Penalty?

Former Ga. Justice: Scalia Death May Alter SCOTUS On Death Penalty

The U.S. Supreme Court could take a different stance on capital punishment with the death of Justice Antonin Scalia.

That's according to Norman Fletcher, former chief justice of Georgia's Supreme Court and an opponent of the death penalty, who said he believes the country's highest court will rule the practice unconstitutional in the next 3 to 6 years.

"Anyone that President Obama might nominate - and if they were cleared - certainly would be more moderate than Justice Scalia on this subject," Fletcher said.

Fletcher said that it's also possible with a nominee from a Republican president because of how justices actually vote when they get to the bench.

"Frankly, many people have been surprised at how people turn out once they get to the court and have to actually deal with the issues that are so well-briefed and presented to the Supreme Court," Fletcher said.

He cited the dissenting opinion in the Glossip v. Gross case out of Oklahoma regarding lethal injection practices as a sign the court could end the death penalty within the next decade.

In the dissent, Justice Breyer wrote, "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."

Justice Scalia had often dissented in cases that restricted carrying out the death penalty, including the case of Georgia death row inmate Troy Davis, who was executed in 2011. Scalia wrote a dissenting opinion to a decision that sent Davis' case down to a lower court in Georgia for a new hearing, calling it a "fool's errand."

Georgia is set to execute its second death row inmate this year the night of Tuesday, Feb. 16. Travis Clinton Hittson is scheduled for execution at 7 p.m. for murdering a fellow Navy sailor in 1992.

Source: WABE news, Feb. 15, 2016

Scalia's death: Another step in the demise of the death penalty?

With executions long on hold here in North Carolina, it's easy to forget that we still have a long way to go in joining the most of the rest of the civilized world in abandoning the death penalty. What's more, as this recent post by Kristin Collins on the blog of the NC Coalition for Alternatives to the Death Penalty reminds us, men still reside on death row in our state who were sentenced under the most absurd and outrageous of circumstances. Here's Collins:

"Almost a year ago, Kenneth Neal was quietly removed from death row after 19 years awaiting his execution.

According to the judge's order entered that day in March 2015, Neal was resentenced to life in prison without parole because he is intellectually disabled. In the years since Neal's 1996 conviction, the Supreme Court has ruled that it is unconstitutional to execute people with significant intellectual disabilities.

What went unmentioned is that Neal likely never would have been sentenced to death in the first place had he not been assigned a notorious convicted felon as a defense attorney.

On trial for his life, the courts assigned Neal an attorney who had, just a few years before when he was a district attorney, been caught up in a highly publicized child pornography sting. The attorney had been caught with sex tapes of children as young as 7 and 8, performing incestuous sex acts between siblings and parents — and the jury was well aware of the lawyer’s crimes. Read Neal’s full story here.”

Of course, such facts would have been unlikely to trouble the late Supreme Court Justice Antonin Scalia, who infamously declared that the Constitution did not bar the execution of even an innocent person who had received a "fair" trial.

In the weeks and months to come, it's clear that the vacancy on the U.S. Supreme Court created by Scalia's passing will force the Court closer to the center of the American political debate than, perhaps, ever before.

And whatever the outcome of that contest, it's hard to imagine that the next Justice appointed will be as avid and enthusiastic of a death penalty defender as Scalia.

Let's fervently hope that's the case, anyway.

Source: The Progressive Pulse, Rob Scofiled, Feb. 15, 2016

Cruz makes his Supreme Court knowledge new focal point

Ted Cruz
Ted Cruz has always talked about the Supreme Court as a candidate for president, but it's become the new focal point of his White House bid following the weekend death of Justice Antonin Scalia.

The Texas senator on Monday recast the stump speech he's offered voters for the past several weeks to highlight the importance of electing a conservative who will appoint what he called the right kind of justices to the Supreme Court, which he described as currently being "activist" and "out of control."

Cruz argued before the Supreme Court nine times by age 40, winning two cases and losing four, with three cases having a murkier outcome. He says that gives him alone "the background, the principle, the character, the judgment" to find a solid conservative to replace Scalia.

The tea party darling also has vowed to filibuster any nominees offered by President Barack Obama, saying 1 more liberal Supreme Court justice could wipe out state-level abortion restrictions while undermining religious liberty and curtailing gun ownership.

"This presidential election is the turning point between either prevailing or losing that fight for a generation," Cruz told a crowd in Florence, South Carolina.

A graduate of Harvard Law School, Cruz clerked for Supreme Court Chief Justice William Rehnquist. His high court arguments were the bedrock of his underdog Senate victory in Texas and are woven into the DNA of his presidential run.

If elected, Cruz would be the ninth president to have argued before the Supreme Court, but the first since Richard Nixon in 1966, according to The American Bar Association. Cruz constantly reminds audiences he defended states' rights, gun rights, the Ten Commandments and capital punishment before the high court.

He doesn't suggest he won every case, but Cruz's defeats can get lost in translation. While canvassing for Cruz in Iowa last month, a volunteer visiting from Georgia proclaimed to caucus-goers that her candidate "won every one" of his 9 cases.

Cruz did prevail in his final Supreme Court appearance. He won a patent infringement case in 2011 involving a deep fat fryer while working for a private Houston law firm.

His other 8 appearances came during his five years as Texas solicitor general, a job he took on in 2003 at 32. Cruz didn't get to pick his own cases as he argued for Texas. But then-Texas Attorney General Greg Abbott, now the state's governor, encouraged him to join out-of-state cases that could promote conservative values.

"Ted Cruz was tireless in searching for every possible opportunity, not just to talk about, but to implement and execute, a conservative constitutional vision for the country," said James Ho, Cruz's successor as Texas solicitor general.

In his first Supreme Court case in 2003, Cruz argued Texas shouldn't have to honor an agreement to improve health coverage for poor children. He lost 9-0.

The following year, Cruz implored the Supreme Court to uphold a 16-year prison sentence for a man convicted of stealing a calculator from Wal-Mart. The justices remanded the case to a lower court, which sentenced the man to time served.

The case Cruz most trumpets brought him to the Supreme Court twice and involved a Mexican national named Jose Ernesto Medellin.

Medellin was convicted of the rape and murder of 2 teenage girls in Houston in 1993, but wasn't notified of his right to contact Mexican diplomats upon arrest, as dictated by the 1963 Vienna Convention. The International Court of Justice ruled in 2004 that U.S. courts should review the convictions and sentences for Medellin and 50 other Mexican-born prisoners because of the treaty violation.

President George W. Bush directed state courts to review such cases, and Texas sued.

"It was an unusual circumstance," Cruz, who once worked for Bush's presidential campaign and administration, told The Associated Press in 2014. "Especially when the president was a Texan, was a Republican and was a friend."

The Supreme Court first sent the case back to state courts. Upon hearing it a second time, the justices sided with Texas 6-3 and Medellin was executed.

In 2006, Cruz defended congressional redistricting maps drawn by Texas' GOP-controlled Legislature. The Supreme Court didn't declare them unconstitutional, despite claims they deliberately dispersed the voting power of the state's growing Hispanic population. But it did rule that a sprawling South Texas congressional district had to be redrawn.

2 more Cruz Supreme Court arguments came in 2007 and involved the death penalty.

Cruz argued a man convicted of killing a former Taco Bell co-worker should be executed despite the jury not being instructed to consider several factors, including his having been abused as a child. Cruz also defended the death sentence of a killer whose schizophrenia meant he might not be able to understand why he was being executed. He lost both 5-4.

Cruz also lost 5-4 his final case as solicitor general, an unsuccessful defense of states' imposing the death penalty in cases of child rape. It originated in Louisiana, but Cruz served as lead attorney for 10 states.

In his filings, Cruz overlooked that in 2006, Congress had modified the military's justice code to add child rape as a crime punishable by death. He was so worried that The New York Times would write that his office "screwed up by not finding" that statue that he wrote to another attorney via email: "Would love to have some sort of response, so we don't look silly."

Source: Associated Press, Feb. 15, 2016

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