Mimesis Law
1 March 2021

Whipsawed & Whiplash – A Month In The Life (And Death) Of The Death Penalty

Jan. 28, 2016 (Mimesis Law) — We’re about a month into the New Year now, and except for rulings on emergency matters, the Supreme Court is done until well into February. I’ve already done a couple of posts on the Court and the death penalty, but the month has been active enough, and the questions hovering are serious enough, that it’s worth even after this sort time taking stock.

And of course, it’s not just in Washington.

Anyway, let’s start with some numbers from the Supremes:

3 executions allowed and a likely fourth tonight (Wednesday, when I’m writing this) in Texas, though it seems SCOTUS isn’t being asked to intervene.

1 state’s death penalty law unconstitutional, though its own high court disagreed, as did an earlier decision from the folks in DC.

1 state’s death penalty practice constitutional, though its own high court disagreed.

2 full decisions on death penalty votes (1 up, 1 down) by 8-1 votes.

1 decision in a non-capital case that may or may not have significant effect on the folks who’ve been sentenced on the now-declared unconstitutional law.

3 (at least) refusals to hear cases that are, maybe, confounding.

Interesting, maybe, but numbers don’t tell you much. We need to dig behind them.

Remember, this is the follow-up still to Justice Breyer’s call (joined by Ginsburg) to take up a broad-based challenge to the constitutionality of the death penalty across the board.

And so. . . .

On January 5, the Supremes let Florida kill Oscar Ray Bolin.  Without dissent.

Less than a week later, on the 12th, the Court issued its decision in Hurst v. Florida. By a vote of 8-1, they declared that state’s death penalty law, the law under which Bolin was sentenced to die and executed, unconstitutional.   See, Florida law had said that the jury could recommend death or life (and it recommended death for Hurst), but the judge actually had to find that the aggravating circumstances outweighed the mitigating factors before he could impose a death sentence.  Not allowed, said the 8.  What weighs more is a fact, and facts are for the jury, not the judge.

Alabama law is, on that point, indistinguishable from Florida law.  On the 21st, nine days after they decided Hurst, the Court, by a vote of 8-1, said it was OK for Alabama to execute Christopher Brooks.  The lone dissent was by Breyer who wrote:

The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.

Sotomayor, empathetic all the way, wouldn’t actually go so far as to dissent. But joined by Ginsburg (who, you’ll remember from a parenthetical a few paragraphs ago, had joined Breyer’s call last term for a case to review the constitutionality of the death penalty), she explained that, well, golly, procedures.[1]

This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016). See Harris v. Alabama, 513 U. S. 504 (1995). I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.

Alabama killed Brooks that night.

The day before, January 20, the Court issued its decision in Kansas v. Carr.  By a vote of (yes, that’s right) 8-1, they said that Kansas did just fine when the judge didn’t bother to tell the jury that mitigating facts didn’t need to be proved beyond a reasonable doubt.  Oh, sure the jury might not have understood that.  But it was a terrible crime so who really cared.  In fact, the “who” who cared was the Kansas Supreme Court, which thought the process was unconstitutional.  And maybe the sole dissenter in Washington, Justice Sotomayor, who this time wasn’t empathetically challenged.  But mainly she thought the Supremes should never have decided the case.

Meanwhile, on the 20th, Texas got the go-ahead to kill Richard Masterson.  He’d confessed, but there’s at least some chance that the murder he confessed to was really just a horrible accident.  Or maybe not.  Regardless, Masterson’s dead now.  And at 6 Central Time this evening (last night by the time this is posted), although you never know, Texas is planning to kill James Freeman

Then on Monday the Supremes refused to hear an appeal from Delmer Smith. No major surprise there, since they refuse the vast majority of cases.  But Delmer’s on Florida’s death row, which means he’s another of the numerous folks whose death sentence was unconstitutionally imposed.  But really, they’ve got better things to worry about in D.C. what with the big snow and all.

Actually, in Florida itself the state supreme court is holding a hearing to decide what Hurst should mean for them.[2]  Pinelas County Circuit Judge Michael Andrews issued on his own motion and order striking the state’s notice of intent to seek the death penalty in the case of Steven Cecil Dykes because “there currently exists no death penalty in the State of Florida in that there is no procedure in place.”  And the legislature is trying to figure out how to come up with a procedure ASAP.

Thursday the Delaware House of Representatives is to debate and vote on an abolition bill. One’s being introduced in Kansas.

And, oh yeah. That interest Breyer’s twice expressed in hearing a case raising the constitutionality of the death penalty?  Monday, he joined with the rest of the court in refusing to hear the first case up raising the question.

So what can we say about the state of the death penalty at the end of January? Beyond, it’s been busy, that is.

Damned if I know.

[1] See Rick Horowitz’s post, “‘Rulezizrulez:’ The Law of Rules v. The Rule of Law,” (the latter a phrase he stole from me without attribution, but I digress) at Probable Cause.

[2] They may or may not find some guidance in the Court’s decision last Monday in Montgomery v. Louisiana, holding that the rule from a couple of years ago that it’s unconstitutional to impose mandatory life without parole sentences on juveniles is fully retroactive and states have to do something (just what is an open question) to those kids – many now geriatric – so sentenced.

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  • Cornflake S. Pecially
    29 January 2016 at 1:46 am - Reply

    Who needs attribution when your very own action hero figure mold designed to take the heat of a million unit run is nearing completion?

    The designers are working on the final details of The Lawyer Who Can’t Be Bought as we speak.

    Damned if I know, if you will like it, but I guarantee you that you will like what the writers are working on for your very own badass public defender comic book series that will be coming out with your action figure hero.

    We are thinking of having you drive titanium spikes into the death of the death penalty coffin.

    • Jeff Gamso
      29 January 2016 at 1:30 pm - Reply

      Gamso Action Figure!!


      I’ll give it a spot in my office right next to the Louis Brandeis Ruth Bader Ginsburg bobbleheads. Or maybe by the Maltese Falcon. (And yes, I have all those things in my office.)

      And the royalties! Think of the royalties!