While you were sleeping ... (Death Penalty Edition)

 (The Court handed down an order list assigning argument time.)

One criminal justice scholar over the years opposed the focus the courts, activist groups and others put on the death penalty. I questioned the sentiment in part since human beings are naturally going to be concerned the most about the end of someone's life.  Murder is treated most severely in this country. But, maybe that is a telling statement, since often non-capital offenses will get you more prison time.  Still, "life" is listed before "liberty" and 'property" for a reason.  Plus, attacking the death penalty is not a closed set.  Concerns about racism in that contexts underlines the point. Anyways, there has been more and more criminal justice concerns in other contexts as well.

This includes looking at grants at SCOTUS.  The death penalty retains its special power, of course, and with Twitter in particular you now can get a blow by blow look on the day of executions. And, there are so few of them, making them even more of an "event."  This at some point is something like watching an accident or something, somewhat voyeuristic.  My blog posts have also dwelled on them a lot lately.  To be fair, I have discussed other matters in other locations.  This leads to less time here.

The ongoing "final day" of Christopher Lee Price (is he named after the actor?)  is an example.  The whole process can be seen as a representation of the justice system as a whole.  From his older co-assailant pleading guilty (trial penalty alert) and receiving LWOP to questions of proper representation to concerns about proper penalties specifically (here dangers of lethal injection, but can be prison conditions or whatnot).  He very well might have been the "face" of the crime here, the other guy not testifying, the heinous slashing of a minster near Christmas put all on his teenage shoulders.  This comes up in other cases too, probably.

As noted, the case has various problems, but the latest was centered on method of execution.  For many, again, this isn't really taken seriously.  But, many botched executions have received much attention, in one case John McCain strongly voicing concern. Along with problems with obtaining lethal injection drugs generally, this is why multiple states (including Price's Alabama) recently provided the option for nitrogen gas. There is some real belief it would be a better method, mixed with some realistic cynicism probably.  At some point, it will be used.

Not sure about the whole "choice of method" approach.  The firing squad was a traditional method, particularly to my understanding in the military. But, for religious reasons, some (particularly Mormons) saw it as the most appropriate method.  I referenced earlier that the other side of the coin is that some people find it immoral to directly choose their own method to be executed.  I guess there is some reason to fear an untried method, which might be a reason why some rather lethal injection.

Anyway, it is unclear to me why Alabama here couldn't simply say, "fine, we will kill you with nitrogen gas, if you wish."  There is a practical value here.  The state has a new method and the Supreme Court explicitly said that there states have some discretion on ways to execute.  (Cf. Justice Stevens once noting that lethal injection was found most humane given the methods available; note cyanide gas is not nitrogen gas.)  Why not simply use it to get it over with?  Sounds cynical but it's realistic too.  Does Price want to just delay as the state crafts a protocol?  Maybe.  But, they have people who did accept the method using their rules.  It's going to have to be used sometime.  His challenge didn't actually start yesterday.  They had time.

As we left the latest cliffhanger, Alabama shortly before 1AM (EST) decided not to execute since their midnight deadline was ready to expire. Per SCOTUSBlog, we are told that shortly before 3AM (seriously), SCOTUS got around to officially rejecting the stay that two levels of court accepted as proper here.  The usual 5-4 split pops up again with the per curiam briefly saying he waited too long.  Justice Breyer was upset:

Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening.

One red flag here was that he aired out some of the inside deliberations usually outside of our notice.  After noting the appeal by the state to lift the stay was filed at 9PM (which was reported and accessible on the docket page, a previous docket page listing the stay filing as not accepted though a link was provided to it by one of the reporters giving updates on Twitter -- again, this sort of thing is available to the general public these days):

To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

Breyer said he asked for the case to be held up to the morning, realizing this would delay things a month, but arguing the matter was serious enough for a full deliberation.  After noting that the state put off the execution, telling us the dissent was written rather late, he added that "unfortunate" detail.  Meanwhile, he spells out why he thinks the lower courts should be entrusted here and why there is a valid case.  Notably, though now it is getting less so, Kagan joined the dissent too.  She in the past was much less likely to join (much less write) these dissents to last minute capital appeals.

There has been various attempts to bridge ideological conflicts in the Roberts Court, but the death penalty of late seems to be an area where this is a lot harder. This is by my count the third time in the last few months where they handed down an order in a capital case after nine o'clock at night.  This does not seem normal given past practice. At least, the level of dissent involved.  It would seem possible to set up a procedure to require final appeals to occur the latest forty-eight hours or even twenty-four hours. (Unless some unique last minute thing pops up.)  Instead, technically these last minute appeals are allowed, but conservatives get pissed off.  What's the point?

Let the final day just be the execution itself.  Meanwhile, ah the irony, it looks like the delay is going to push things back a month anyways. John William King scheduled to be executed in Texas on the 24th ... sure that will go on without a hitch.