Alabama Doesn't Executes Jeffrey Lee

Lee, who has been on death row for 25 years, was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in Dallas County. He was also found guilty of the attempted murder of Helen King.

The death sentence and planned execution are problematic on multiple grounds, but only a few justices (at most) have agreed with the reasons.  

Twenty-five years is too long. Justice Breyer explained why. I will continue to cite his dissent. 

Sotomayor, for the liberals, flagged the problems with nitrogen gas. The others think "not enough."

An Alabama jury recommended 7-5 that he receive life without parole. A judge overrode them. 

The policy is no longer in place. The justices have rejected multiple appeals that flagged the problem. 

The jury, even without other potentially mitigating evidence, did not find him guilty enough to die. A double robbery/homicide clearly has aggravating circumstances. A majority of the jurors still thought he did not deserve to die.

The lower courts split one last time. The district court found some problems with nitrogen gas, but not enough. The court of appeals disagreed, sending it back to determine if a backup method (the firing squad) was available.* The state appealed. 

Steve Vladeck argued that the Supreme Court intervening, given the technical status of the case, would be particularly dubious. Hours after the execution was scheduled, the appeal was rejected. 

(I find it asinine that things work this way. That we have a finale on execution night. It is how it is set up. The state is partially to blame. It should change.) 

The machinery of death, with Thomas, Alito, and Gorsuch dissenting, was stopped. For now. 

I have argued that final refusals to intervene, even if hopeless appeals, should be at least minimally explained in death penalty cases. I think so here. 

Anyway, Jeffrey Lee shouldn't be executed. A majority of his jury said so. Too long ago. 

If he's executed, he shouldn't be executed by nitrogen gas. There is too much doubt. I know. Is the firing squad better? I guess? 

Maybe, just let's not execute him at all. Alabama hasn't for over twenty-five years. Why start now?

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Note: The rules hold that if you challenge an execution method, you need to provide an alternative. 

Maybe, see Glossip v. Gross, things would be different if the state used crucifixion or something, but they haven't found any such method now exists.

So, the firing squad was chosen. Is it better? Some experts suggest that it is. People think it is barbaric. It sounds like it would be. But pain and suffering-wise, it very well might be the best approach.

Not free from botching, of course.  

SCOTUS Watch: Opinions

The Supreme Court is running out of no-drama opinions. We had three today. One split 6-3, but it was not a major dispute.

Jackson had a unanimous bankruptcy ruling. Thomas (with Gorsuch) said, "Let's go big." Sotomayor said, "Let's not."

Kagan had a unanimous statutory ruling. Bluesky legal minds flagged a notable comment that might limit the Trump Administration's current activities somewhat:

We hold that a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located.

The third case was a 6-3 opinion (Barrett v. Jackson) with Jackson having an extended discussion about legislative history. She's big about that sort of thing.

Kagan got off the bus there:

Reliance on legislative history may be appropriate when statutory text in context remains, after careful review, stubbornly ambiguous.

Kagan thought "text, structure, and statutory history" did the trick here. She did not (unlike Sotomayor) join Jackson on the rest. A reasonable position, succinctly expressed. 

I don't know who's correct as to the merits. I do generally trust Kagan's judgment when there is a disagreement. But her overall reasonableness is a guide for us all.  

Constitutionalism 

David Strauss, about fifteen years ago, wrote a helpful little book discussing "living constitutionalism." 

He argues that a form of common law, restrained somewhat by text (especially about clear matters such as the number of senators), is the appropriate path. 

Strauss goes a bit too far on how the amendments overall have been of little consequence. They do repeatedly do less than one might think. 

For instance, the Sixteenth Amendment overruled a dubious 5-4 income tax opinion decided in the 1890s. The original Constitution, on its own, authorizes income taxes.

On the other hand, acknowledging Jim Crow, the Fifteenth Amendment did signficantly advance racial equality, especially in the North. It helped in the South, even then, at least for a few decades. 

Originalism is a dubious path. It is not some big restraint. The alternatives are not just "make stuff up." And, originalists do that too, in a fashion. 

One online comment accepted the approach for rights but not powers. Doesn't work. The two are connected. And, appeals to original understanding to apply the Commerce Clause or whatever is silly business. 

Military Chaplain Updates

Military chaplains are a usual example of when we can have government support of religion.* 

Granting that, religion, especially mixed with government, remains a sensitive subject. The streamlining of "faith codes" underlines the point with controversy from various quarters. 

The so-called Department of War [still not a thing] posted on Twitter (blah) the general goal:

In order to clarify the work of chaplains and simplify the work of commanders, the Pentagon has consolidated and simplified the list to roughly thirty codes — using the previously used labels for faiths.

The Pentagon’s job is not to adjudicate theological debates, but instead to ensure sincerely-held faith is respected and encouraged in our ranks.

I'm not sure if its job is to "encourage" faith, sincerely-held or not, either. But, okay, let's go with that.

There was a major hiccup when Mormons were not labeled "Christians." Many Republicans (and Trump supporters) are Mormons. That caused a flare-up.

The new codes did not designate specific Christian denominations as such. Catholics were just "Catholics," not "Catholics (Christian)."

People were still upset that many other religions were left out. We just have a catchall "Other Religions" category.

Also, we have a single "Judaism" category, which includes multiple major groups, and a bunch of separate, relatively small (Church of the Nazarene?) Christian groups. 

Secretary of Defense Hegseth, who wears his specific Christian beliefs on his sleeve and promotes them in his official capacity, also made other changes. 

Hegseth has not earned much respect as someone to trust with such things.

Before the change, a chaplain’s uniform carried their rank insignia along with a symbol denoting their religion.

The policy, he said, “speaks to the difficult balance of the duality of a military chaplain. A chaplain is first and foremost a chaplain and an officer second. This change is a visual representation of that fact.”

Hegseth also said that removing rank allowed chaplains to “be seen among the highest ranks because of their divine calling.”

The person is a military chaplain. Rank is important to the military. They were seen as chaplains before. I'm unsure why this move is necessary. I would like to know how chaplains overall feel about it. 

The directive follows a broader effort by Hegseth to reshape the military’s Chaplain Corps. In a December message, he said he wanted to restore chaplains’ focus on ministry and argued that the role had shifted toward counseling and support functions in recent years.

What "ministry" entails depends on the person. For many, it would include "counseling and support functions." This seems like an idiosyncratic view of what the appropriate role of a chaplain is. Did he think the old way was too "woke"?

The good faith of this Administration, with its Christian Nationalism overtones, on this issue is already questionable. Hegseth has also shown to be racist and sexist, including regarding firings. 

We can move on from that. The general issue is sensitive. It is a good thing that it is getting some attention. Perhaps, more kinks will be worked out. 

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Note: Religion is one of those subjects that will sometimes lead people to jump to first principles, including rejecting special rules for religions at all. Some will make some snide references.

So it goes. "Religion" is referenced in the First Amendment and is a general legal category, including in human rights law. It's a thing. 

SCOTUS Watch: Order List

The Order List was fifteen pages, which suggested there was some sort of opinion. And, there was another (it is her thing) Sotomayor statement flagging a criminal justice issue:

Although I agree with the Court’s decision to deny certiorari for the reason explained below, I write separately to address the problematic standard the Mississippi Supreme Court applied to the claim petitioner Tony Terrell Clark raised under Batson v. Kentucky [racial discrimination in peremptory challenges], 476 U. S. 79 (1986), in the context of his ineffective-assistance-of-counsel claim.

Mark Joseph Stern also flags on Bluesky:

SCOTUS tosses out a 4th Circuit decision allowing compassionate release under the First Step Act when there are arbitrary sentencing disparities between a defendant and his co-conspirators. Orders reconsideration in light of Rutherford. KBJ and Sotomayor dissent.

This is a typical "GVR," where they "grant, vacate, remand" a case so that the lower court can apply a related opinion. Kagan dissented in Rutherford and joined the limited concurrence written by Sotomayor in the other case referenced in the GVR.

As Stern notes, it isn't fully clear what this means, but it is concerning since it appears to suggest the lower court should apply the (dubious) rulings even broader than necessary.  

Alito and Barrett didn't take part in cases without saying why. Only Kagan and Jackson consistently do so. I prefer that approach. 

One tidbit is that "The United States’ claims in this case are hereby dismissed with prejudice" in an interstate dispute. No reason provided. 

There will be opinions on Thursday. There is also an upcoming execution, which I will discuss separately. 

ETA: Amy Howe posted her summary.

One tidbit is the rare request for a reply to a request for a rehearing. The request is by Lisa Blatt,  superlawyer, and cites changing lower court precedent. Also, looking at the docket page, the Supreme Court posted a request earlier, but it was removed as a mistake. So, one big trivia question.

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The error flagged here is not uncommon. 

I have repeatedly seen it assumed that the original First Amendment would require thousands of members. A case of not reading closely.

Checking, the House reached 200 members in the 1820s. The measure was bound to be out of date eventually. It was suitably not ratified as written. 

SCOTUS Watch: Opinions

An expected shadow docket decision in an election lawsuit makes it no less shitty. See here. 

Opinion day had three opinions, only one dissent (and concurrence) by Thomas. Some long-shot claims. Minimalist specials.

ETA: As noted here, one opinion might be another faux minimalist opinion with near unanimity obtained by a rule with future bite.

Indiana and Tennessee Declare June as Nuclear Family Month

I discuss the various problems with this here. I toss in a link to an amusing "drag comedy" that is also a satire of teenage films. 

Andrew Lukehart Execution

Andrew Lukehart, after previously being found guilty of child abuse, was sentenced to die by Florida for the death of a five-month-old child. He first made up a kidnapping story.

That was thirty years ago. Breyer explained why it is constitutionally and otherwise problematic to execute someone after all that time. Florida is making it a habit.

The first article suggests it is still somewhat unclear what exactly happened. Why did he murder the child? Child abuse, including lethal child abuse, arises for various reasons.

The crime is horrible, especially when you look at the picture of the child. The news article starts with a trigger warning. Still, thirty years in prison is a very serious punishment. 

The final appeal, rejected by the Supreme Court the day before without comment, was a standard red flag about Florida execution procedures. Old ground

It also added a novel argument that forcing him to choose an alternative means of execution (you must do so if you challenge the method) is a violation of his religious liberty. There is a federal statute protecting the religious liberty of prisoners. 

His execution doesn't provide much value, in my opinion, to the public welfare. Safeguarding children is precious. An arbitrary execution does little to advance it. 

Supreme Court Order List

Today's Order List was a bit long since the justices tossed back a death penalty case (7-2) because the lower court wrongly took into consideration evidence the jury didn't see. They granted a case first sought by a pro se prisoner. Also, the "bill of complaint" issue (two views) came up again. I basically agree with Michael Dorf.