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…

Appeals court dismisses lawsuit filed by Arkansas judge barred from hearing death-penalty cases

The ban followed Griffen's participation in an anti-death-penalty rally at the state Capitol and a silent anti-death-penalty protest near the Governor's Mansion.
The 8th U.S. Circuit Court of Appeals ruled Monday that a central Arkansas circuit judge's lawsuit over being removed from hearing death-penalty cases must be dismissed.

Pulaski County Circuit Judge Wendell Griffen, who is also a Baptist minister, alleged in a lawsuit that the Arkansas Supreme Court justices violated his federal civil rights and retaliated against him for exercising his First Amendment rights when they permanently banned him April 17, 2017, from presiding over death-penalty cases.

The ban followed Griffen's participation in an anti-death-penalty rally at the state Capitol and a silent anti-death-penalty protest near the Governor's Mansion. The protests took place the same day Griffen issued a temporary restraining order blocking the state from using one of the drugs in its lethal three-drug cocktail, effectively stopping executions at least until a longer hearing could be held a few days later. The drug's manufacturer had sought the order, saying the state illegally obtained the drug.

In an April 12 ruling, U.S. District Judge James Moody refused to dismiss Griffen's lawsuit against the individual justices in their official capacities, saying Griffen had presented sufficient facts to state a plausible claim.

But the justices from the state's high court asked the appellate court to order Moody to correct a "clear error" that they said he committed by refusing to dismiss the allegations.

In the ruling released on Monday, the appellate court said that Griffen's claims were not plausible

"[The Arkansas high court's order] does not prohibit Judge Griffen’s free exercise of religion: it does not 'compel affirmation of religious belief,' 'punish the expression of religious doctrines,' 'impose special disabilities on the basis of religious views,' or 'lend its power to one or the other side in controversies over religious authority,'" U.S. Circuit Judge Duane Benton wrote. "Rather, the order reflects neutral principles applicable to all judges who exhibit potential for bias."

Griffen's attorney said he was disappointed in the ruling and planned to petition the full 8th Circuit appeals court to review the case.

"We are as resolute as we have ever been, and we fully intend to restore Judge Griffen's constitutional rights," Mike Laux said.

Griffen is also facing ethics charges brought by judicial regulators. The Judicial Discipline and Disability Commission special counsel last month formally accused the judge of nine violations of the Arkansas Judicial Canon, all stemming from his attendance at the prayer vigil and anti-death-penalty protest.

Source: Arkansas Democrat-Gazette, Associated Press, July 2, 2018

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