The rapist/murderer of Jimmy Ryce (9) executed

CHAVEZ, JUAN C. V. PALMER, WARDEN, ET AL. The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

This is the last of three brief USSC orders, which is typical of a large part of the few orders one finds on the website (aside from periodic scheduled days when groups of orders come down; many actions -- such as Alito recently temporarily staying an execution -- are not located there).  That is, brief denials of last minute applications to stay execution.  Now and then, one or more justices might note their disagreement.  A bit notable.

I'm against the death penalty, though some executions are harder to take than others. For instance, a person was recently executed for killing a store owner during a robbery, something that was found to have been premeditated (though his wife was also shot but not killed). This to me should not be a death penalty offense, even if you support the death penalty. It is a horrible crime that warrants a long prison sentence. Nonetheless, as noted in a case back in 1980:

There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.

Yes, a premeditated murder of this sort is "distinguishable" enough to warrant more prison time, maybe even a life sentence given his record. But, if we look at the actual grouping of those executed, is this the "worse of the worst"?* As Justice Marshall noted separately (and Justice Blackmun ultimately rested his opposition on), even if one accepts the death penalty, the inability to put forth a process that non-arbitrarily as a whole separates the wheat from the chaff here makes the penalty on that ground alone unconstitutional.  Or, at the very least, bad policy.  This is useful to remember -- constitutional sounding language can be used to address good policy. See, e.g., the thread in the Holder voting rights issue I referenced the other day.

The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support.

Justice Stevens eloquently discusses the problem with "victim impact" evidence being used during the sentencing phrase of capital trials.  In a later case, he included a link to one of the two videos found on the USSC website attached to cases (he has the other one too), one that provides a sort of home movie of the victim. When these cases come up and people are concerned about the legality of it all and such, many call attention to the victims. One person at Sentencing Law and Policy Blog, a corporate attorney from my understanding, is quite visceral on the point, opposing those who put in place moratoriums of executions and the like as moral reprobates who spit on the victims, more or less.  But, there are rules in place here. They apply even to convicted murderers.

During a trial, victims often have a hard time of it, simply testifying or watching hard, even without the defense in various cases trying to call doubt on what they said or trying to block what they deem justice.  But, execution in the name of victims, such as the little boy (picture here) in this case doesn't really do it. What at the end of the day does executing an arbitrary number of people do there? Some oppose the death penalty, sometimes the feelings split among the survivors.  As noted in Stevens' concurrence in Baze v. Rees, our system of execution draws out things and complicates the lives of victims in some ways that counsel not having it occur.  In Kennedy v. Louisiana, some victim advocates opposed execution for child rape for various reasons.  The crime here is also against the state, one reason why death eligible defendants don't suddenly not get the death penalty if the victims' family opposes it.

They told reporters outside the prison that the execution closes a long, painful chapter and hopefully sends a powerful message to other would-be child abductors.

"Don't kill the child. Because if you do, people will not forget, they will not forgive. We will hunt you down and we will put you to death," Don Ryce said.

More about the facts of the crime and execution can be found here, including a summary of his legal claims (including the usual concern about lethal injection procedures, a trend these days).  Yes.  But, would such would-be child abductors suddenly not do it because they will get life imprisonment?  Some people in prison at some point rather die. I surely don't begrudge the father here his opinions on the matter -- people think death is worthy for much less than the despicable act at issue here.  And, I am glad he and his family used the horrible crime to do some good.  Plus, it is fitting and proper to each time not just report the murderer and his (as is usually the case) story, but talk about the victim or victims.

I just don't think executing people is the appropriate answer, and such "worst of the worst" type crimes (if there is a small list, something like this probably is on it) do not change my mind. There are various reasons to oppose the death penalty.  Even in cases of this sort, repeatedly, there is some concern with the procedure involved. Torture is not appropriate even for Bin Laden. The death penalty is not "torture" (though a few times at least, the actual execution was inhumane and a lingering death) but it is such a categorical wrong.  If a person seems pretty guilty but there is even some reasonable doubt type evidence not allowed, people repeatedly are worried in these cases, even if the crime is horrible. This case is likely a more "pure" case than that and I can rest on principle. Still, even beyond that, how can be assure only the worse of the worst with no significant problems will be executed? Are the rest just allowable?

Don Ryce himself does not have the right to shoot the person here to gain justice.  Few would blame him if he did.  But, he could not. I don't think the state should either. I put Jimmy Ryce and his father here to show that I am not forgetting about them. Execution in their names doesn't do it for me.**

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* Elsewhere, I was criticized for using this colloquial test because there is no legal rule of that sort. Cf. Kennedy v. Louisiana:

The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Yes, the ruling specifically concerned not executing a rapist of a child (notable in the case at issue), but past rulings drew lines even there. As do each and every state -- murder is not death eligible without a "plus."

**  Anyway, as I noted, it doesn't really work like that.

Other cases exist where families of the death penalty made their opinions known and the person was still executed. A local case involved two brothers who had different opinions. It might somehow be appropriate to factor in such sentiment somehow but what ultimately matters is what the legislature, prosecutors and juries decide within certain legal limits.