First Execution of 2019

(ORDER LIST: 586 U.S.) WEDNESDAY, JANUARY 30, 2019 CERTIORARI DENIED 18-6848 JENNINGS, ROBERT M. V. TEXAS (18A540) The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

As expected, two pro forma orders were posted last night at the SCOTUS website to smooth the way for the execution of a cop killer.  Like that old story, he is sort of like a lottery winner, one of a few people among the many murderers (including some who committed very heinous crimes) scheduled to be executed this year. To take a for instance, no one was executed for over five years in Mississippi, not exactly a liberal state. 

From what I can tell, there were various procedural concerns, but what stands out for me is the thirty year lag period.  Justice Breyer, such as in his dissent when he flagged the death penalty itself as probably unconstitutional, has repeatedly cited this as a specific problem. Justice Stevens and the courts of various nations also did so. I think it would be useful if a justice dissented in each case myself to touch upon the specific person being executed, but Breyer does not do this.  He has brought it up repeatedly though to point out the problems. Multiple reasons: delay of justice, harsh treatment on death row, trauma of such an open-ended extended limbo and the question of simple justice of executing someone for something they did so long ago.

(People are cynical about such claims since they largely blame the defendants themselves for extended appeals. As people have noted, this is a bit too glib. California has a large death row but only something like thirteen people has been executed in large part since there is no will from the top to help things out. The extended appeals repeatedly address real problems with the system. Realistically, however, it is hard to imagine due process alone is why it takes decades to execute someone.)

There are a few cases of crimes in prison, but it seems to me a bit dubious to not just let these people continue to be in prison as they have been for decades. And, thirty years? I think that is long enough even for killing a police officer.  It would not surprise me if there was something wrong with his case specifically that made executing him a due process problem. But, I'll grant that away. I also question the whole "worse of the worst" test here, comparing it to some of the real heinous examples. Again. I'll rest on principle here. This includes the fact a system is in place, not some cases that we might be willing to accept.

One criminal justice expert made it known that he thought too much emphasis was put on the death penalty given so many other people were being harmed in our criminal justice system. Plus, he thought in the worst cases that it was basically justified, though he would have it be a federal prosecution since they had more resources.  (I stopped going to the person's blog since he was in effect a Trump apologist, belittling how bad he was.) I question how bad the situation is -- there tends to be overlap between capital and non-capital crimes here. See, e.g., the treatment of those prosecuted as minors.

Plus, simply put, loss of life itself will matter more. The concern is fair though I'm not sure how bad the situation truly is -- e.g., the Supreme Court has taken numerous non-capital cases over the last few years. Other than debate along the edges, what has it really done in the capital punishment area?  Some raised the possibility of the end of capital punishment. I do not see it. There continues to be a desire for at least the possibility in special cases.  Two justices were willing to go further. I question if a Justice Garland would have went along. OTOH, he might have accepted more limits on the system in place. Well, that ship has sailed.

Next execution scheduled in February.