Patterico's Pontifications


Death Penalty Hold

Filed under: Court Decisions,General,Law — DRJ @ 7:42 pm

[Guest post by DRJ]

The US Supreme Court granted a stay of execution today in a Mississippi death penalty case pending a hearing on the inmate’s writ of certiorari. This order reaffirms that the death penalty is probably subject to a de facto moratorium:

“Moments before a Mississippi prisoner was scheduled to die by lethal injection Tuesday evening, the Supreme Court granted him a stay of execution and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.

There were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but neither they nor the majority gave reasons for their positions. Because only five votes are required for a stay of execution, it is not clear whether all the remaining seven justices supported it.”

The Mississippi case involves an inmate who has been on death row for almost 20 years:

“Mr. Berry was condemned for abducting and killing Mary Bounds, 56, as she was leaving her church in Houston, Miss., on Nov. 29, 1987. Mr. Berry, who had been drinking heavily, drove the victim to the edge of a remote field intending to rape her, prosecutors said.

Then he decided not to rape her, but beat her with his fists. Afterward, Mr. Berry, who is 6 feet 1 inch tall and weighs more than 250 pounds, carried his victim into a patch of woods, where she was found dead of head injuries a few days later.”

Berry’s attorneys filed an appeal objecting to the lethal injection method on October 18, 2007, the first time the issue had been raised in his case. The Mississippi and Fifth Circuit courts ruled the objection was not filed timely and denied his appeal. The Supreme Court’s stay suggests the Court is likely to place a hold on other death penalty cases until the lethal injection issue is resolved.

The Court’s order did not state why Justice Scalia and Justice Alito would deny the application for stay of execution. I assume it was based on procedural grounds – that the issue was not timely raised on appeal as set forth in the Fifth Circuit decision.

This doesn’t necessarily enlighten us about the views of the remaining Justices on the lethal injection method. The Court has an interest in deciding this area of the law – which is clearly unsettled – in order to bring certainty to the issue and to avoid a patchwork result in the interim that might occur if different circuits handle the issue in different ways.


17 Responses to “Death Penalty Hold”

  1. We now have the Kennedy Court.

    There are four votes for the death penalty, but it only takes four votes to grant cert. Normally four justices do not vote to gratn cert. knowing they will likely lose 5-4. They vote to grant cert. on the expectation that there may be a fifth vote for their view.

    Which brings us back to Kennedy.

    My recollection is that he has been a solid death penalty vote since he joined the court, and it was only O’Connor that waffled in her twilight years on the Court. I’m going to look a little deeper into whether Kennedy has authored any significant death penalty opinions — major, concur or dissents, and put a post up tomorrow or Friday (no chance on Thurs).

    wls (fb8809)

  2. Thanks, WLS. I’ll look forward to it.

    DRJ (5c60fb)

  3. WLS–here’s a major death-penalty opinion Kennedy wrote: Roper v. Simmons, holding it unconstitutional to execute anyone who was under the age of 18 at the time he committed his crime.

    Death-penalty opponents have a lot to fear from Kennedy, believe me.

    Alan (f1706f)

  4. Paul — wow.

    My memory failed me. I could have sworn that it was O’Connor that provided the fifth vote on the “under-18″ case, with Kennedy in the minority. But, in looking over that case, it was O’Connor who switched in the dealth penalty case involving a mentally retarded defendant. She voted to affirm the death penalty in the juvenile case.

    Kennedy’s invocation of international law as one basis for invalidating he death penalty really tees up the lethal injection cases now before the court.

    But, if Kennedy and the four liberal justicies hold lethal injection to be cruel and unusual, they will be handing the election to the Republicans — which I think the four liberals will understand.

    The decision SHOULD come down in June, if not earlier. The question before the Court really only calls into issue the constitutionality of the use of lethal injection, not the death penalty itself, so one response to a decision banning the procedure would be to say that the death penalty itself isn’t invalid, only the use of lethal injections, and leaving it to the states to fashion other means — which will all then be attacked in later cases.

    But, I don’t think the public will see it that way, and we’re still a country that favors the death penalty by about 70-30.

    wls (fb8809)

  5. The decision SHOULD come down in June, if not earlier.

    I think it will come down a lot earlier. Probably, February or March. I have big problems with the attacks on LI since they are based on junk science.

    But, if Kennedy and the four liberal justicies hold lethal injection to be cruel and unusual, they will be handing the election to the Republicans — which I think the four liberals will understand.

    By “understand” do you mean you believe they would hold otherwise in order to affect the elections?

    dave (185b67)

  6. dave — that’s exactly what I expect. They will find a reason to send the case back to the Circuit Court or the state Supreme Court, wherever it originated, knowing that their de facto moratorium will remain in place since nearly every state now has LI as its primary method of execution. It avoids a disposition on the issue to another day.

    That is the least bad thing they can do politically. But “invalidating” the death penalty is just too easy for the GOP to cash in, and in a close election it would simply re-inforce all the worst views of the Dems on crime and security.

    wls (fb8809)

  7. Every little bit helps, though I don’t see how anything but an extremely small number of people would decide to vote Republican instead of Democratic just because of this.

    chaos (9c54c6)

  8. Anbd these are probibly the same idiot judges who ruled in the infamous lelo ruling nothing like a bunch of idiots wrecking justice in the name of stupididy

    krazy kagu (b3aac5)

  9. chaos — hot button issues like the death penalty are definitional for a party and a candidate. Remember, about 50% of the electorate doesn’t even start paying attention to a Presidential campaign until the last two weeks. While respondents to polls give pollsters answers about who they support, that doesn’t mean they are really listening to the campaign.

    If the Supreme Court is seen to have effectively invalidated the death penalty by banning LI, every candidate is going to have to take a position on the decision, and that is going to define the candidate in the minds of a lot of voters who only pay attention superficially. Voters who aren’t engaged in the issues are easily swayed from one candidate to another. Since the death penalty retains overwhelming majority support among the population, a candidate on the wrong side of that issue is courting disaster.

    Yet, if a Dem. candidate takes a public position against the four liberals on the Supreme Court and a decision invalidating LI, they risk losing the support of the left wing — not that they will vote for the GOP, but simply that it diminishes their enthusiasm due to the duplicity of their candidate.

    wls (fb8809)

  10. And since non-Americans will feel compelled to weigh in, it will only boost the popularity of those candidates not willing to kowtow to international opinion.

    I read somewhere recently that only those who live in the state where an execution takes place are concerned. This defies Tookie’s execution which received national media coverage and overwhelming national support.

    dave (185b67)

  11. The primary argument raised (aside from the death penalty itself) is that the lethal injection cocktail inflicts pain. Any compentent anthesilogist will confirm the likelihood of any pain is than 1 in a million. In essense, junk science – what happened to the daulbert standard?

    Several cases have used erroneous findings of fact in order to reach somewhat supportable constitutitional rationale for the opinion. A similar intentional error was made in the Michigan law school affimative action case by the 6th. This case should be remanded with instructions to the effect that erroneous findings of fact will not be tolerated.

    joe - dallas (138e46)

  12. Well, considering that we all know that nobody has ever been put on death row and then found innocent, we must stop this activist Supreme Court at every turn!

    Yes, I’m being sarcastic.

    Liberty Advocate (128577)

  13. The prosecutors of Harris County (Houston) TX – who send a lot of people to death row – have decided to request the delay of executions in pending death penalty cases until the US Supreme Court decides the Baze case. That makes Michael Richards (the “We Close at 5″ inmate) the last person to die in the US (for now).

    DRJ (5c60fb)

  14. Re: #12–cite me one case of an innocent person being executed in the last 50 years.

    For those who’ve been on death row and “found innocent” while still alive (and a lot of them weren’t “found innocent” in any sense, but were released from death row anyway), the objection is not that they shouldn’t have been on death row; the objection is that they shouldn’t have been in jail at all. It has nothing to do with capital punishment. Unless you can cite a single case in living memory where an innocent person was executed. But I doubt you can.

    Alan (f1706f)

  15. “We close at five”. I bet Keller’s vindicated by the Texas board that is looking into her actions. Every other litigant has to get to the court on time . . . .

    And what is most disgusting about the Supreme Court’s stay–it’s not the suffering of the victim’s family, although that’s bad enough, but it’s the rewarding of a last-minute stay application that could have been filed much much earlier. The Court has allowed a tactic it has called “abusive” in the past to be successful. It has shamed itself, and has shown itself to be completely irresponsible when it comes to death cases.

    SPO (62ca0c)

  16. I am a strong believer in not having the death penalty. I do believe in life in jail with no parole. I believe that execution in any form is in humane, either way you do it. I have been looking into and strongly believe in not having it. I am sorry for the victims family. I do not think we need another life taken. They should rot in jail and have to think about what they did till they die.

    Samantha Hall (8fb1e0)

  17. The death penalty saves innocent lives. You only want to save the life of the murderer. You need your priorities reordered.

    dave (c44c9b)

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