Blog Round-Up – Monday, May 22nd
Here is an LA Times editorial titled, “Gitmo, get gone: Running out of excuses for not removing a national blight.”
The Volokh Conspiracy has this post titled, “Roberts Seeks Consensus.”
In Legal Times, Tony Mauro has this article on Justice Scalia’s opposition to Congress taking up the issue of the use of international law in constitutional interpretation. Concurring Opinions has a post on the issue here.
Sentencing Law & Policy has this post on the Court’s failure to take up the lethal injection issue directly and this post on Justice Stevens and Brigham City v. Stuart.
Orin Kerr has posted a link to the commencement speech that Justice Roberts gave at Georgetown this week.
In Slate, Dahlia Lithwick has this article titled, “Justice Sandy: Five simple rules for discussing judicial independence.” PrawfsBlawg comments here.
The Sentencing Law & Policy post raises the issue of inconsistent results across the country with respect to whether last-minute stays are granted for death row inmates facing execution. The premise of the defense attorneys who whine about the inconsistency is interesting, to say the least. Apart from the trite bleating that “a life is at stake”, the premise of their complaint is that murderers should get the benefit of inconsistencies in treatment. After years and years of appeals, the justice system must then give every murderer the benefit of some last minute leniency on the basis of some last-minute claim that the “big jab” may hurt. There is, of course, no legal support for this nonsense–other than the ramblings of some Sixth Circuit judges in a dissent.
At some point, the process of justice must end. And if that means that a murderer doesn’t get to litigate his last-minute claim, so be it. Finality and comity demand it, as does the notion of justice itself. People do some pretty awful things to wind up on death row (putting aside the innocence issue). Once a death row inmate gets to having a serious date set, the justice system has given the inmate, free of charge, various forums to litigate issues with his trial. Why is it then a categorical imperative to grant him a stay simply because some other inmate may be successful on some issue tangential to his guilt, when that inmate had opportunity to litigate that issue earlier? Do death row inmates have some absolute right of equality of treatment? Does the justice system have to cede the right of death row inmates to litigate the lethal injection at any time the death row inmate chooses to do so?
As things stand now, no one has proven that lethal injection violates the constitution. Is the capital punishment system in America supposed to go on hold over the mere possibility that convicted murderers who, by and large, slept on their rights, may suffer pain? From a policy perspective, the question answers itself. I don’t see how the legal analysis is any different.
Comment by federalist — May 22, 2006 @ 8:00 pm
“Putting aside the innocence issue”? Did you say, “Putting aside the innocence issue”? No. I refuse to “put aside the innocence issue,” now or ever. I helped keep alive a CJA-appointment death row client in Pennsylvania, Nick Yarris, for some 11 years before advances in science made DNA testing of the little remaining evidence possible (after most was improperly destroyed or allowed to rot) — testing which exonerated him. For none of the 23 years he spent on death row did Nick “sleep on his rights.” To the contrary, he spent that time fighting state prosecutors who only wanted to find excuses *not* to allow any judicial inquiry into whether they had committed a horrible mistake. Without the pressure of a federal judge, those state officials would have happily killed an innocent man. As it is, their crusade for “finality” ensured that the real rapist-murderer went free. “Finality and comity” are the enemies of justice and human decency in this context, my friend.
Comment by Peter G — May 22, 2006 @ 11:23 pm
I assume that after 20 years saying “I love you honey” can be trite. Doesn’t make it any less true.
“Does the justice system have to cede the right of death row inmates to litigate the lethal injection at any time the death row inmate chooses to do so?” Absolute phrasing usually turns out to be wrong.
“As things stand now, no one has proven that lethal injection violates the constitution.” I’m unclear what this means. What level of “proof?” There is clear proof that certain protocols are risky as compared to others, thus opening the chance of needless pain. Thus, under current law, unconstitutional.
This is sort of why “finality” meaning “execution” is a problem. But, the matter now is more narrow, and I put that as just an aside.
Comment by Joe — May 23, 2006 @ 2:14 am
Peter G: Congratulations on your efforts to free an innocent man. My reference to putting aside the innocence issue was merely to qualify my statement that people on death row have done some pretty bad things.
Joe: You criticize my phrasing in absolute terms, but don’t I capture the defense position perfectly?
In any event, I believe that finality and comity (except where innocence is concerned) must be observed in these cases. At the end of the day, these people are murderers and have had ample chance to litigate the issue. I just don’t see how anyone could see how the equities weigh in their favor. And trite bleatings like “there is a life at stake” do nothing to add to the debate other than to invite ridicule.
Comment by federalist — May 23, 2006 @ 10:59 am
“There is clear proof that certain protocols are risky as compared to others, thus opening the chance of needless pain. Thus, under current law, unconstitutional.”
I’m not aware of any “current law” that these protocols are unconstitutional. Indeed, if that were current law, we wouldn’t have so many death row inmates trying to litigate it, because the matter would by now be settled.
There is no constutitional guarantee that the death penalty will be as painless as possible. At the time of the Founding, hanging was the most common method of capital punishment. There are risks in hangings–the rope could be too long or too short, causing unnecessary pain in either case. But no one ever demonstrated that such risks made hanging a cruel or unusual punishment.
Mind you, I think it would be worthwhile for SCOTUS to resolve this issue, simply to eliminate all of the individual appeals that have created a cloud over lethal injection. I’m sure that the Justices eventually will take such a case. But they are not obligated to do so. The Justices often let the law develop in the lower courts before weighing in, which is apparently the approach they’re taking now.
(Just to declare my biases, I’m a death penalty opponent, mainly on the pragmatic grounds that it’s too expensive, is irreversible in case of error, and doesn’t deter anything. But while we have it, I am not sympathetic to inmates who continually come up with new reasons — usually at the last minute — why their executions should not take place.
And if we are going to have the death penalty at all, why don’t we just return to hanging? Although not perfect, it’s surely the cleanest, simplest and most dependable mechanism yet devised. And since we had it at the Founding, there can be no doubt of its constitutionality.)
Comment by Marc Shepherd — May 23, 2006 @ 12:33 pm
The matter was not fully litigated. My argument is that once it is litigated, the current protocols will be shown to be too open to needless pain. New application of an old test, roughly described.
I know that “as painless as possible” is not the standard. In practice, arguably any method might not be the best — there always going to be some imperfection. But, taking everything into consideration, there is no reasonable need to use the current risky protocol at issue. So is the argument.
As to hanging, various possibilities. It arguably has a barbaric feel to it — stringing someone on a tree etc. Also, lethal injection, if done right (and here it was noted that animals have better safeguards), might be deemed more humane all things considered.
No F, I don’t think the defense thinks the defendant can litigate “at any time.” I’m sure they want broad contours, but yes, that seems to broad. I admit to be a bit picuyane, but absolutes somewhat annoy me.
Comment by Joe — May 23, 2006 @ 11:07 pm