Justices alternately upheld, halted and questioned executions on an array of grounds this week
WASHINGTON—The Supreme Court’s complicated, often unpredictable approach to the death penalty was evident this week when a three-day period produced decisions where different combinations of justices alternately upheld, halted and questioned executions on an array of grounds.
While President Donald Trump proposes expanding capital punishment to drug dealers, the Supreme Court lacks consensus on how, when and—for at least two justices—if the death penalty can constitutionally be applied at all.
On Wednesday, a unanimous court gave a death-row inmate in Texas a chance at a life sentence. That followed a 5-to-4 vote Tuesday evening to halt the imminent execution of a Missouri inmate who claimed a rare medical condition made him prone to extrcruciating pain under lethal injection. And on Monday, the court unanimously rejected a challenge to Arizona’s death-sentencing procedure, though four justices suggested that a future case presented without procedural flaws should receive serious consideration.
That Monday statement ultimately may prove the most significant, said Evan Mandery, a professor at the John Jay College of Criminal Justice in New York. Writing for himself and three liberal colleagues, Justice Stephen Breyer questioned whether the Arizona scheme complied with decades-old precedent requiring that death-sentencing procedures “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”
In general, juries must weigh whether “aggravating” factors are outweighed by “mitigating” evidence. But lawyers for Abel Hidalgo, who pleaded guilty to murdering Michael Cordova and Jose Rojas at their Phoenix auto body shop in 2001, contended that Arizona’s law was so lopsided in its array of aggravating factors as to make about 98% of first-degree murder defendants eligible for execution.
For several years, Justice Breyer, joined by Justice Ruth Bader Ginsburg, has suggested that the death penalty itself may be unconstitutional. His somewhat narrower statement Monday attracted broader support on the court’s left, with Justices Sonia Sotomayor and Elena Kagan adding their names.
“The fact that Kagan joined the statement is significant,” Mr. Mandery said, because it was “her first statement as a justice on a death penalty issue of constitutional dimensions, signaling her vote is in play.” Although it avoided confronting the ultimate issue, the statement amounts to “a clear questioning of the constitutionality of the death penalty,” much like a 1963 statement by Justice Arthur Goldberg, for whom Justice Breyer clerked, triggered the first era of litigation challenging capital punishment.
Justice Goldberg’s statement asked whether capital punishment for rape when the victim survived violated the Eighth Amendment prohibition of cruel and unusual punishments, but it implicitly questioned the death penalty more broadly.
That is how George Brauchler, the district attorney in Arapahoe County, Colo., read Justice Breyer’s statement. “The death penalty may only be as healthy as the next Supreme Court justice who decides to leave the bench,” he said. It “could go away on a 5-4 vote,” said Mr. Brauchler, who sought the death penalty for the 2012 Aurora, Colo., movie-theater mass shooter, James Holmes ; a single juror held out, however, and Mr. Holmes instead received 12 life sentences.
With no indication that the court’s more conservative justices see intrinsic problems with the death penalty, however, this week’s capital punishment decisions suggest that absent a personnel change, the court will continue to “tinker with the machinery of death,” as the late justice Harry Blackmun put it.
Wednesday’s case involved Carlos Ayestas, a Honduran immigrant convicted of murdering Santiaga Paneque, 67 years old, whom he strangled while burglarizing her Houston home in 1995.
On appeal, a new set of attorneys argued that Mr. Ayestas’s trial defense was incompetent because it failed to investigate mitigating factors such as mental illness—he later was diagnosed with schizophrenia—and history of drug and alcohol abuse.
The appeal asked a federal judge to authorize $20,000 to investigate those claims, under a federal law providing assistance to defendants in certain cases. A federal district court in Texas rejected that request and was upheld by the Fifth U.S. Circuit Court of Appeals in New Orleans.
Writing for the court, Justice Samuel Alito, a former U.S. attorney who typically shows skepticism of criminal-defense positions, said the Fifth Circuit made it too difficult for Mr. Ayestas to pursue his claim.
The Fifth Circuit said the defendant must demonstrate a “substantial need” for the funds; in fact, Justice Alito wrote, he need only show they are “reasonably necessary.”
Federal law “cannot be read to guarantee that an applicant will have enough money to turn over every stone,” Justice Alito wrote. “Congress has made it clear, however, that district courts have broad discretion in assessing requests for funding.” The case returns to the Fifth Circuit for review under the easier test.
The court’s unanimity fell apart Tuesday evening, in an unsigned order that underscored Justice Anthony Kennedy’s continuing importance in directing the death penalty’s application.
While he did not sign Justice Breyer’s statement in the Hidalgo case, he joined the liberal wing to block Tuesday’s execution of Russell Bucklew, who was convicted of killing his ex-girlfriend’s new boyfriend, Michael Sanders, in 1996.
Mr. Bucklew suffers from cavernous hemangioma, his attorneys told the court, which causes “unstable, blood-filled tumors to grow in his head, neck, and throat.” Missouri’s lethal-injection protocol could cause a throat tumor to rupture, subjecting him to painful suffocation, they argued, violating the Eighth Amendment.
Mr. Bucklew, who doesn’t contest his conviction or sentence, proposed being executed instead by lethal gas, which his legal papers say “requires no venous access at all.” Lower courts denied the request; Tuesday’s action blocks his execution while the court weighs whether to hear his case.
Source: The Wall Street Journal, Jess Bravin, March 22, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde