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

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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…

Missouri Says Reporter Doesn't Have Right to See Executions

Missouri's Death Chamber
Missouri's Death Chamber
A reporter suing over Missouri's refusal to allow him to witness an execution isn't constitutionally guaranteed a right to see someone put to death, the state argued in asking a federal judge to throw out the case.

The state, in a court filing last week, also said that it has legal immunity from lawsuits such as Buzzfeed News reporter Christopher McDaniel's case filed in August against George Lombardi, overseer of Missouri's prison system.

McDaniel countered that someone volunteers to witness an execution, and courts have acknowledged it's unconstitutional to deprive someone from volunteering, saying they're exercising their free-speech rights.

McDaniel, a former St. Louis public radio reporter whose stories have been critical of Missouri's death penalty procedures, applied in January 2014 to be a witness "to ensure that executions are carried out in a constitutional manner." But McDaniel never got a response, and 17 executions have been carried out since by the state, where 26 inmates are on death row. The next scheduled execution is Jan. 31.

The state, in response to McDaniel's lawsuit by the American Civil Liberties Union, said that "McDaniel is asking this court to go where no court has gone before: declare that watching an execution is a 'benefit' from the government." There's no authority for that "or that McDaniel has a property interest or a liberty interest in watching Missouri carry out an execution," the dismissal motion read.

"McDaniel has failed to demonstrate that he has a legally-protected interest in witnessing an execution," the state argued.

McDaniel's lawsuit alleges Lombardi has "unfettered discretion" in deciding who may be among the at least "8 reputable citizens" to witness an execution.

McDaniel casts as discriminatory the prison system's application he said requires would-be witnesses to explain their reason for wanting to see the execution and report any affiliation with a group for or against capital punishment. McDaniel's stories since December 2013 have called into question such matters as how the state obtains its execution drugs and the method of giving condemned inmates pre-execution sedatives.

"This volunteer opportunity is closely related to McDaniel's profession of reporting on the death penalty, and courts have long recognized the importance of public access to, and understanding of, executions," McDaniel's filing Friday asserted.

The lawsuit asks a judge to block anyone other than Missouri's attorney general from serving as an execution witness until McDaniel's claims are decided.

No hearing has been scheduled.

Source: Associated Press, October 25, 2016

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