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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Neil Gorsuch and the State’s Power to Kill

Justice Neil Gorsuch
Justice Neil Gorsuch and Donald Trump
It’s not entirely fair to judge a Supreme Court justice based on his first vote. Urgent matters arise unexpectedly, and the court must sometimes act quickly.

Still, it’s worth paying special attention to Justice Neil Gorsuch’s vote late Thursday night to deny a stay of execution for Ledell Lee, an Arkansas man who was sentenced to death in 1995 for murdering a woman named Debra Reese with a tire thumper.

After Justice Gorsuch, along with the four other conservative justices, denied his final appeal without explanation, Mr. Lee, who maintained his innocence until the end, was executed by lethal injection.

He was pronounced dead at 11:56 p.m. Central Daylight Time, minutes before his death warrant expired. Arkansas had not executed anyone since 2005.

In short, the first significant decision by Justice Gorsuch, who was sworn in to office less than two weeks ago, was the most consequential any justice can make — to approve a man’s killing by the state.

That man, like so many others condemned to die around the country, was a walking catalog of reasons the American death penalty is a travesty. Evidence that Mr. Lee was intellectually disabled and suffered from fetal alcohol syndrome was never introduced into court, mainly because he had egregiously bad representation. One of his lawyers was so drunk in court that a federal judge reviewing the case later said he could tell simply by reading the transcripts.

In addition to raising these issues in his appeals to the justices, Mr. Lee challenged Arkansas’s lethal-injection drug protocol, which incorporates a sedative, midazolam, that has been implicated in multiple botched executions. For both moral and business reasons, drug makers have banned the use of their products for state-sanctioned killing, making it harder for states to get their hands on them. In fact, Arkansas initially scheduled Mr. Lee’s execution as part of an unprecedented killing spree — eight inmates over the course of 11 days — because the state’s old batch of midazolam was about to expire. (As of Friday afternoon, four of those executions had been placed on hold by the courts, for various reasons.)

This rush to kill based solely on a “use-by” date is “close to random,” Justice Stephen Breyer wrote on Thursday in dissenting from the court’s refusal to stay Mr. Lee’s execution. The three more liberal justices agreed that the stay should have been granted, as they regularly do in such cases, just as the conservative justices regularly vote the other way.

That 4-to-4 split effectively gave the deciding vote over Mr. Lee’s life to Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland.

During his confirmation hearings, Justice Gorsuch talked a lot about his respect for the rule of law, and the importance of sticking to the plain text of the Constitution and of statutes. But he didn’t have to rewrite the Eighth Amendment to see, as Justice Breyer did, that Mr. Lee’s case exemplified “how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ ”

Neil Gorsuch held the power of life and death in his hands Thursday night. His choice led to Ledell Lee’s execution, and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.

Source: The New York Times, The Opinion Pages, The Editorial Board, April 21, 2017

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