declared dead minutes later, at 7:05 Central time. In Washington, Trump continued to speak, with Judge Neil Gorsuch and his wife now standing behind him. With much of the country tuned in to watch Trump’s much-hyped announcement that night, the execution in Missouri flew under the radar.
Convicted of a brutal rape and triple murder committed in 1998, Christeson was not someone likely to inspire widespread concern on any given evening. Yet his execution was a reminder of the kinds of cases Gorsuch would review if confirmed to the Supreme Court. Christeson — a lifelong victim of sexual abuse whose IQ hovered as low as 74 — was abandoned by his own post-conviction attorneys, who missed a crucial deadline to file his federal habeas appeal in 2005. When outside lawyers tried to step in to correct their gross neglect, courts blocked them at every turn. As Christeson’s execution approached, a group of former state and federal judges raised alarm about his case, filing multiple amicus briefs to his petitions before the Supreme Court. They warned that Christeson had received no “meaningful federal review” of his sentence. “When the stakes are this high, such failures unacceptably threaten the legitimacy of the judicial process,” the judges wrote. Christeson won a last-minute stay of execution in 2014, with the justices remanding his case back to the lower court. But the reprieve was fleeting. As with many on death row who turn to the Supreme Court for relief, Christeson was ultimately executed, the deep flaws with his case barely addressed, let alone corrected.
Over two long days before the Senate Judiciary Committee this week, Gorsuch was never asked his views on the death penalty. More time was spent discussing fly-fishing and rodeos, along with more serious (if redundant) questioning on life and death issues like abortion and euthanasia. This was not particularly surprising; confirmation hearings are mostly political theater — and Gorsuch’s record on criminal justice has stirred little controversy compared to other hot-button issues. Many lawyers and experts expressed a measure of relief when Trump announced Gorsuch as his Supreme Court pick. “I don’t think he’s a fire-breathing, law and order, pro-prosecutor guy,” said Tejinder Singh, the appellate and Supreme Court litigator who won a stay of execution for Mark Christeson in 2014.
Yet Gorsuch seeks to join the Supreme Court at a time when the death penalty is in a state of chaos and decline. The issue has sparked some of the most contentious public moments on the bench in recent memory, and with good reason. For all the layers of legal precedent enveloping capital punishment, it is a tradition that has become increasingly hard to uphold, at least in any intellectually honest way. The Supreme Court’s most recent ruling on lethal injection, Glossip v. Gross, was simply embarrassing: After a heated oral argument in which the Oklahoma brazenly misled the justices, the 5-4 decision upheld an execution protocol that is the sloppiest of inventions, rooted in junk science, and peddled by a state notorious at the time for having recently carried out a dramatically botched execution. Glossip’s legacy has been short but grim. Oklahoma’s incompetence and deceit has been further exposed. Botched executions have continued apace. More surreal, the ruling has put people challenging their upcoming execution by lethal injection in the perverse position of having to propose better ways for the state to kill them, from the firing squad to the gas chamber. Add to this the fact that the named plaintiff in the case, Richard Glossip, is almost certainly an innocent man, and the result is a perfectly hideous portrait of our modern-day death penalty system. It was Glossip that inspired Justice Stephen Breyer’s extraordinary dissent listing the myriad reasons the death penalty itself is constitutionally intolerable. More recently, Justice Sonia Sotomayor has questioned whether lethal injection is “our most cruel experiment yet.”
Glossip came up just once during Gorsuch’s confirmation hearing, in a brief question from Republican Sen. Jeff Flake. Does Glossip deserve the respect of precedent, he asked? “It does,” Gorsuch said, and that was it. That no senator thought to probe any further was a missed opportunity. In his 10 years serving on the 10th Circuit Court of Appeals, Gorsuch presided over cases that embodied the pitfalls of capital punishment, and even helped pave the way for Glossip. A recent report by the NAACP Legal Defense and Education Fund highlighted two particular areas of concern. One is his complicity in upholding Oklahoma’s disastrous lethal injection regimen, which became the law of the land in Glossip. And the other is complicity in a more systemic problem throughout the criminal justice system: a pattern of favoring finality over fairness. Gorsuch, the LDF warns, has proven all too willing to apply the most rigid barriers for those seeking to challenge unfair sentences, including in capital cases. “Winning federal habeas relief from any judge is a challenge,” the LDF report notes. “Winning federal habeas relief from Judge Gorsuch is a near impossibility.”
Source: The Intercept, Liliana Segura, March 23, 2017
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