SCOTUS Watch -- Death Penalty et. al.

SCOTUS did a few things of note this week.

Amtrak is part of the government for purposes of the law involved so the matter is remanded to address other issue. Alito and especially Thomas concurred to suggest that they would use the case to limit the delegation of power by Congress to agencies and whatever Amtrak is supposed to be.  The same was the stance of concurrences in a limited but significant administrative law ruling that suggests a "to be continued." Both suggest conservatives are not for "judicial restraint," just a different form of judicial power. "Activism" is thus a matter of terms.

Skipping over a decree in an interstate dispute, it also handed down some orders.  As noted there (see also), they accepted a death penalty case for review. The partial dissent below and others noted that the Florida procedure in question touches upon a dissent from cert. that Sotomayor wrote some time back (Breyer partially concurred, but has stated his position on the jury decision making point) involving judges overriding juries in death penalty cases. The case raises issues of mental disability and other issues. As Scotusblog noted:

It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual.  Presumably, that will become clearer as the briefs are filed in the case in coming months.

I do agree Breyer, Stevens and others that if we are going to have a death penalty, we should have juries determine whether the person is going to live or die -- ultimately, the death penalty will turn on issues of retribution in most cases. The idea that judges, pressured (as Sotomayor noted) by elective politics, override jury decisions for life here to me is unfair.* Ultimately, even if it is not determined to be in this case, I think a decision of death is a sort of "fact" of some fashion that determines an extra level of guilt warranting the death penalty. So either by the majority view or Breyer's concurrence in Ring v. Arizona, I think it is a matter of constitutional command as well that the jury should decide (if the jury is waived, yes, the judge would decide). 

Finally, this discussion shows no method of execution is going to be without problems.  Some, e.g., have argued the firing squad would be better than lethal injection. It might be for certain reasons -- such as avoiding the usage of medical personnel and the dangers of mistake. But, mistakes were made there too and involvement in killing still has problems. The author there suggests using beheading instead, recognizing though it would be deemed barbaric. But, that is why it wouldn't be used, even if it might actually be somewhat safer.  I assume nitrogen gas too will falter.

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* The choices of the jury of life over death is ultimately a subjective one that a judge cannot really determine is "wrong" by the rules of the game. OTOH, there are cases where finding death can be determined to be wrong, that is, beyond the terms of the capital laws of that state. And, to be blunt, I think the laws overall are too arbitrarily applied to be constitutional. This is a matter of practice and the nature of things.

But, I'm not counseling a one-way ratchet here. If the rules are upheld, the juries can determine -- again it will be a matter of discretion -- a defendant warrants the death penalty.  A judge in such a case, if the person fits within the terms of the law, should not override the jury just because the judge's sense of fairness falls the other way. If multiple jurors, in many cases unanimously (a couple states don't require unanimous juries generally; the rules for sentencing here are somewhat more mixed), decide for death, the subjective opinion of one judge should not override it. 

It holds that -- especially with the rule of leniency -- it is worse for judge's to overturn decisions of life. Also, judges are more likely to be more conservative than the jurors, more prosecutor friendly. Elective pressures, which some might argue is the point, are more likely to be pro-capital punishment in that fashion. Bottom line, I don't support that here, believing it on balance adds an arbitrary factor into the equation.