In its last six months, the Trump administration put more than three times as many prisoners to death as the federal government had in the previous six decades.
In 2015, a few months before he died, Justice Antonin Scalia said he would not be surprised if the Supreme Court did away with the death penalty.
These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions.
Until July, there had been no federal executions in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.
In a dissent issued late Friday, as the court cleared the way for the last execution of the Trump era, Justice Sonia Sotomayor took stock of what the nation had learned about the Supreme Court’s attitude toward the death penalty.
“Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions,” she wrote.
“Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sotomayor continued. “The court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours.”
Reviving the federal death penalty after a long hiatus gave rise to substantial and novel legal questions, and at first it seemed the Supreme Court would address them in a considered way. In late 2019, for instance, while Justice Ruth Bader Ginsburg was still alive, the court turned down a request from the Trump administration to allow four executions to proceed before an appeals court could weigh in on whether a new execution protocol was lawful.
But the court eventually allowed those executions to go forward. It would do the same for the others.
“Very few of these decisions offered any public explanation for their rationale,” Justice Sotomayor wrote in her dissent. “After waiting almost two decades to resume federal executions, the government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this court should have. It has not.”
In his own dissent on Friday, Justice Stephen G. Breyer listed a half-dozen legal questions that federal inmates had asked the Supreme Court to resolve in recent months, only to be met by terse rulings ordering their executions to proceed.
“None of these legal questions is frivolous,” Justice Breyer wrote. “What are courts to do when faced with legal questions of this kind? Are they simply to ignore them? Or are they, as in this case, to ‘hurry up, hurry up’? That is no solution.”
Members of the court’s conservative majority have expressed frustration with last-minute stay requests, saying they amount to litigation gamesmanship. “The proper response to this maneuvering is to deny meritless requests expeditiously,” Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, wrote in a concurring opinion in a case from Alabama in 2019.
There may have been another reason for moving quickly in the federal cases: Had the court issued even brief stays, there was good reason to think the Biden administration would have halted the executions.
Eric M. Freedman, a law professor at Hofstra University, said the court would pay a price for its failure to address the inmates’ claims. “From a historical perspective,” he said, “the most significant damage caused by the court’s recent performance in death penalty cases may be to its own institutional standing.”
If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015, one that must have been on Justice Scalia’s mind when he made his comments a few months later.
Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination.
Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it.
Justice Ginsburg, who died in September, had joined the dissent. The two other liberals — Justices Sotomayor and Elena Kagan — were undoubtedly sympathetic.
And Justice Anthony M. Kennedy, who held the decisive vote in many closely divided cases until his retirement in 2018, had written the majority opinions in several 5-to-4 decisions that imposed limits on the death penalty, including ones barring the execution of juvenile offenders and people convicted of crimes other than murder.
Justice Kennedy’s departure put an end to liberal hopes for judicial abolition of the death penalty at the federal level, which was always a long shot.
On Friday, Justice Breyer made a more modest plea.
“Given the finality and severity of a death sentence, it is particularly important that judges consider and resolve challenges to an inmate’s conviction and sentence,” he wrote. “How just is a legal system that would execute an individual without consideration of a novel or significant legal question that he has raised?”
January 18, 2021 at 05:00PM
https://www.nytimes.com/2021/01/18/us/executions-death-penalty-supreme-court.html
‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny - The New York Times
https://news.google.com/search?q=little&hl=en-US&gl=US&ceid=US:en
No comments:
Post a Comment