SCOTUS: Florida Death Penalty Decision System Is Unconstitutional

Here is the SCOTUSblog page on Hurst v. Florida. Linked from there is Lyle Denniston's opinion analysis. Here is an excerpt:

Striking down the last state law that denies the jury in a murder case the final choice on a death sentence, the Supreme Court on Tuesday nullified Florida’s capital-sentencing regime because it gives the final decision to the trial judge. By a vote of eight to one in Hurst v. Florida, the Court also overruled two of its prior decisions that had upheld Florida’s law.

Justice Sonia Sotomayor’s fairly brief majority opinion relied primarily upon a 2002 decision, Ring v. Arizona, which the Court interpreted to have made clear that if there is ever to be a death sentence in a murder case tried by a jury, the jurors must hold the final decision, not subject to being second-guessed by the judge.

The ruling, however, did not immediately spare the life of Timothy Lee Hurst of Pensacola for murdering a co-worker at a fast-food restaurant more than seventeen years ago. ...

The case involved a worker at Popeye's who murdered his manager, so I believe everyone has to agree this is a chicken decision. But the reasoning makes some sense; please read the article. The opinion for the Court was written by Justice Sonia Sotomayor, who wrote

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.

The entire minority in the 8-1 decision was Justice Samuel Alito, who understandably has difficulty with the Sixth Amendment, which reads

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Note that the trial is decided by "... an impartial jury..." not by the whims of a judge. This may be scant comfort to the accused in this case, if SCOTUS decides to send the case back to Florida.

When will the USA join the large majority of nations in the world in abolishing the death penalty? Hint: from the pics I saw on the news last night, the Northeast is on its way to freezing over, and Hell can't be far behind...

A Century From Yesterday...

... the industrial explosions in China may or may not be forgotten, the summer's insane weather in parts of the US may mark the onset of the most significant global climate change in all human history or it may be a distant and unimportant memory, the fires on the West Coast will be out and others may take their place, the battle between America's police and its nonwhite communities may have led to the demise of the nation or it may have been resolved in the eventual reconciliation of the disparate racial parts of our society, and surely no one will remember what "DeflateGate" was about...

... but I am willing to bet this narrowly decided Connecticut state supreme court ruling will be hailed for a century or more as one of the events that set America on the path to civilization as exemplified in our criminal justice system: the state legislature having already repealed the death penalty in 2012 for all future crimes, the court ruled that scheduled executions of those convicted earlier of capital crimes would constitute "cruel and unusual punishment" and must not be carried out. For better or worse, eleven people on Death Row are spared by this decision. (DPIC offers a good short summary of the ruling: Connecticut Supreme Court Finds Death Penalty Violates State Constitution.)

It's not just a question of whether the death penalty may be legally assessed and meted out: it's a question of whether capital punishment can ever be carried out with the requisite certainty, the essential confidence of guilt and of intent, to justify a purposeful state killing of any of its citizens. (Reminder: even a confession is not as solid as is required for such a drastic action, because false confessions are astonishingly common.)

As I write this, according to Wikipedia, there are 31 US states, as well as the federal civilian and military legal systems, which still have the death penalty on the books. Some of those states have not executed anyone in many years. Other questions, e.g., the means of execution, have become the focus of legal debates leading to decisions not to execute people even in these death penalty states. So it's not an easy question, and in many states, it is a question that has not been resolved.

Again by Wikipedia, the US as a whole is fifth among countries in number of executions; our companion countries on that short list are Iran, China, Saudi Arabia and Iraq, not a fellowship most Americans would like to claim as our own, but there it is. Tradition can carry a nation only so far in justifying an ancient and barbaric practice: think about our cohort of nations the next time you find yourself advocating for the death penalty in America.

The Rehnquist Death Court At Work

Here we are, nearly a decade after William Rehnquist, 16th Chief Justice of the US Supreme Court, died, yet some of his most morally offensive, full-blown batsh!t crazy decisions continue to affect... for the worse... the world we live in. An example struck me recently (no, I was not injured) in Kos writer Shaun King's article Did you know the Supreme Court ruled 6-3 that it's legal to execute an innocent person?.

If you read that post, please also skim a few of the comments (not all 200 or so; that would be injurious to your mental health): you'll find basically two kinds of comments... those by opponents of the death penalty, and those by lawyers. The latter seem to feel certain they can convince the former of the error of their ways if only they are allowed to browbeat them sufficiently on the legal issues surrounding capital punishment, not realizing that for some of us it isn't a matter of whether the state can legally execute someone, but whether they ever should, not a matter of whether it can be done constitutionally, but whether it can be accomplished humanely...

Chain of being [i.e., being whacked]

Oh, that, and the little matter of how much taxpayers' money could be saved by simply eliminating the death penalty and all the lawyers dancing on heads of pins that inevitably surround every single case in which it is sought. The cost of the trial and subsequent imprisonment for "life-without-parole" doesn't even begin to compare with the cost of the dancing... and if, in the end, the guilty verdict turns out to be factually unsupported, the punishment is a whole lot easier to reverse.

Americans' Support For Death Penalty Declining: Pew Study

Via Digby, we have the following from a Pew Research Center survey:

According to a 2013 Pew Research Center survey, 55% of U.S. adults say they favor the death penalty for persons convicted of murder. A significant minority (37%) oppose the practice.

While a majority of U.S. adults still support the death penalty, public opinion in favor of capital punishment has seen a modest decline since November 2011, the last time Pew Research asked the question. In 2011, fully six-in-ten U.S. adults (62%) favored the death penalty for murder convictions, and 31% opposed it.

Public support for capital punishment has ebbed and flowed over time, as indicated by polls going all the way back to the 1930s. But it has been gradually ticking downward for the past two decades, since Pew Research began collecting survey data on this issue. ...

...

Please see the death penalty favorable/unfavorable graph at the link above. There are peaks in the mid-1950s and mid-1990s. I will not venture to explain either peak, but I will say that at present we know a few more compelling reasons to oppose the death penalty categorically; two reasons in particular are the discovery of how frequently an innocent person is executed despite supposed precautions against such false convictions, and a growing body of evidence that the punishment is in fact cruel in violation of the Eighth Amendment.

I don't have a lot of time to write at the moment, but I'll try to address the issue more fully in the near future, including the marked disparity by race of the person surveyed.

'Tinker[ing] With The Machinery Of Death' — With Disastrous Results

The late Supreme Court Justice Harry Blackmun, revoking his prior support of the death penalty in America, proclaiming it under all circumstances unconstitutional (presumably under the Eighth Amendment), said "[f]rom this day forward, I no longer shall tinker with the machinery of death." He was unable to work his will on the Court of his day, and the executions continued. Yesterday in Oklahoma, according to the WaPo, a botched execution gave more credence to the arguments of those of us who say the death penalty should be banned as "cruel and unusual punishment[]":

Tuesday night’s botched execution in Oklahoma, which resulted in an inmate’s writhing death from a heart attack 43 minutes after he received what was supposed to be a lethal injection, was just one in a series of bungled execution attempts the past few years. It’s prompting calls for a moratorium on capital punishment from death penalty opponents.

The inmate, Clayton Lockett, was confirmed unconscious 10 minutes after the first dose in the state’s new three-drug protocol was administered. The first drug, midazolam, is intended to render a person unconscious. But three minutes later, he began breathing heavily, thrashing and straining to lift his head, media witnesses said.

...

The blinds were then lowered to prevent people in the viewing gallery from seeing inside the death chamber. ...

Patton told reporters Lockett’s vein line had “blown.” When asked what he meant, Patton said the vein had “exploded.”

...

A colleague of mine once argued that a punishment had to be "cruel AND unusual" to violate the Eighth Amendment. Somehow I doubt that's what the Constitution's framers meant: nowhere is it recorded that any of them were computer professionals. But until one of The Mighty Five (and I'm not talking about composers of music) passes from this world, I'll be very surprised if the Supreme Court rules any method of execution to be unconstitutional. The "tinker[ing]" continues, and the "blown" executions continue...

An Oklahoma death chamber

The Most Tragic, The Most Sickening Thing You Read Today

... may be this article by Stuart J. Murray and Dave Holmes at truthout about the growing perversion of the justice systems of the US and Canada. Canada, f'chrissake... the place a lot of us Americans considered absquatulating to around 1970 in preference to being sent to Viet Nam... is now the home of a justice system as cruel as, if not crueler than, our own.

One of the cruelties inflicted by both systems is the death penalty, born again in the US in 1979. States that execute people are lately having difficulty finding suppliers of drugs for lethal injection. Rather than give up lethal injection, states are... experimenting. They're creating cocktails of drugs never used before to execute humans. Some of them don't... quite... do the job, for a half hour or so after injection. And what a half hour that is! Read the article; I can't bear to spell it out here. Our nation's founders and the framers of its Constitution are no longer around for me to ask whether this sort of thing is what they had in mind when they formulated the Eighth Amendment, but in my opinion it's so cruel and unusual it's damned close to torture. I hate to say it, but a firing squad is bound to be less cruel. If you think the death penalty is appropriate for some crimes, I doubt this is the implementation you had in mind. If it is exactly what you have in mind, please seek professional psychological help immediately.

Then there's the privatized prison system, the sheer anonymity of the machinery of death, the "sovereign" state power over life and death turned into an impersonal process for which no one is responsible. Murray and Holmes attribute it to neoliberalism; maybe so, I wouldn't know... there's no "neo-" in my liberalism. Murray and Holmes:

...

... In some respects, then, the frenzy to shore up and exercise state power over life might be understood as the dying gasps of the sovereign in the face of a rapidly decentralizing authority. Increasingly, heads of state are no more than symbolic figureheads, the vassals of free-market ideology, deregulation, economic forecasts and corporate lobbies. Life-and-death decisions are no longer "sovereign," in the classical sense, but emerge almost anonymously and are recommended, as it were, and required by the system itself - the effects of technologies, forecasts, statistical estimates, securitization and risk management strategies. It is this logic that underpins the prison-industrial and mental health complex, as corrections and psychiatry find themselves subject to wider stakeholder "interests."

Within this context, state-sanctioned killing takes on a different guise. It is no longer the sovereign prerogative simply to take life, but rather, we are faced with a power that exposes life to death, to neglect, to hunger and poverty, to the loss of dignity, to destitution and precarity. In official political rhetoric, this is not "killing." On the contrary, it is argued that austerity measures, securitization, criminalization and mass surveillance are meant to protect life, to foster it, to prolong it. Death gets figured as a passive consequence, as merely "letting die": collateral damage or negative externalities in political economies of scale. ,,,

...

("Precarity"... wonderful word which I didn't know before. Look it up.)

So much for executions conveying a warning to other would-be criminals: it's all just the process of the state; move along, nothing to see here. The point seems to be not so much crime prevention, or even vengeance, as a demonstration that literally everyone is vulnerable, that the machine will get you sooner or later. The impersonal nature of this "justice" is not the premeditated objectivity of law, but the indifferent cruelty of the machine of state. Murray and Holmes describe a case in which the sheer dehumanizing nature of treatment of one 19-year-old prisoner drives her to commit suicide, apparently with no serious attempt on the part of prison employees to intervene. Life is sacred? really? To these people, it seems life is... indifferent.

I don't know about you, but I don't want to go there. To the extent America has taken on that soulless character already, we need to do every possible thing to reverse it... or else nothing, nothing whatsoever, can help us.

Texas Executes Man With IQ Of 61

The US Supreme Court ruled in 2002 in Atkins v. Virginia, on Eighth Amendment grounds, that “the mentally retarded should be categorically excluded from execution.” That's "categorically" ... as in, in all cases. Yet Liliana Segura at The Nation reports that the great State of Texas has done exactly that. The Supreme Court, despite its ruling in Atkins, declined to intervene.

Marvin Wilson was a man with an IQ of 61. He sucked his thumb. There are serious questions about his alleged confession... to the wife of another defendant in the same case. There are evidentiary questions about whether he was the "trigger man" in the murder. There are similar questions based on forensic evidence about when the murder was committed... the night of the alleged assault, or the next morning. Questions, questions, questions... and no dependable answers, in part because Wilson was mentally incapable of speaking rationally in his own behalf.

Long-time readers know I have strong reservations about any use of the death penalty. This case goes far beyond those generic reservations: a society willing to execute a mentally incompetent person (even if the evidence of his guilt had been strong, which is dubious in this case) is an uncivilized society. I do not want to live in a society that executes mental incompetents, people whose culpability is severely limited by an inability to understand the consequences of their actions. Judicial executions of such people become murders in their own right, as the Supreme Court implicitly recognized in Atkins.

But it's an election year; we have a Republican governor and a conservative-dominated Supreme Court unwilling to act even based on its own recent ruling. So Marvin Wilson died as surely as his alleged victim died.

I suppose I should do my ritual denunciation of the death penalty in its role as an attempt to protect society, but I'm terribly fatigued just thinking about it. Rather than examine all the details, I'll just note that the Death Penalty Information Center shows that "[t]he murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty, and the gap has grown since 1990," a statement which they base on two presumably reliable sources: the US Census and an FBI report "Crime in the United States." 

So the death penalty has, if anything, a negative deterrent effect. That leaves vengeance as the only motivation for execution. 

How badly do you want to see people die?