Death Penalty Watch

As summarized here, it seems like the conservative justices are still a tad bitter about recent death penalty actions.

The separate opinions are conveniently separated on the "opinions related to orders" page, which brought a bit of a surprise on Monday -- Justice Alito (with Thomas and Gorsuch joined; they dissented without opinion before) added a dissenting opinion to Patrick Murphy's case, which was handed down a month and a half ago. I am not aware of this happening before though new knowledge on a certain fact led to an addendum to Kennedy v. Louisiana years back.  But, it's good to have everyone on record now, assuming that the liberals basically implicitly held to their previous position in the earlier case involving a Muslim prisoner.

Kavanaugh (with Roberts this time) again added a concurrence, laying on the "respectful disagreement" language. If you toss in the Thomas reply (same breakdown, this time with no comment from Kavanaugh) to Breyer's dissent in the Price case (back to the Supreme Court after some late night drama last time, so found with the original Monday orders), one can understand his felt need to do so. That dissent was a tad angry, starting with the gratuitous (a method of execution case, it simply was not relevant) citation of the facts of the crime. Breyer and Thomas is repeatedly all buddy-buddy during oral argument, but you know, there is some bad blood there.  The delays of executions clearly upset the conservatives.

I'm not fully able to parse the difference between the two cases involving wanting a minister other than designated Christian minister available, but am inclined to agree with Kagan and the liberals that the difference didn't deserve different results (one is dead; the other's execution is still pending).  Somewhat ironically, Alito (who has shown some consistency here, to be fair) went into more detail in examining the religious claims, leaving open a chance that there might be a statutory free exercise (RFRA) argument in the appropriate case.  Kavanaugh assumed a state had a strong enough interest to protect the execution room so could (equally) require any minister to just stay in the observation room.  Since states regularly allow ministers to be there when the person dies, I find this questionable. 

The  circumstances  surrounding  Zagorski  and  his  fellow  prisoners’ attempts to prove that   pentobarbital   was “available”  demonstrate  how  unfairly  this  already  per-verse requirement is being applied.   For  one,  the  prisoners’  ability  to  prove  the  drug’s  availability  was  severely  constrained  by  rules  of  secrecy  surrounding  individuals  involved  in  the  execution  process.

The other brief statement was from Sotomayor (she references an early opinion from which that quote is taken) on her continuing concern about how lethal injections have been carried out.  She also added how state secrecy laws wrongly inhibit inmates (First Amendment claims have been made here as well) from obtaining necessary information. The defendant here, checking the docket page, had a conservative group against the death penalty submit a brief flagging due process problems.

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Two executions were scheduled for May 16th. Going by how these things go, it was therefore somewhat surprising (maybe they are learning?) that (without recorded dissent) the Supreme Court disposed of Michael Samara's appeals (habeas and stay for execution tied to that) two days before. The claim raised was that current standards of decency, as result of practice and scientific knowledge, warrants the floor be raised from 18 (his co-defendant was sixteen at the time, so had his own death sentence overturned) until 21. There is some grounds for this. But, obviously, THIS Supreme Court is not likely to be that open to it.

Samara was 19 at the time of the crimes back in 1997. The crimes involved, by gun and knife (ran out of bullets) murdering four people, two children, by one account: "According to statements made by co-defendants, Duke instigated the bloodbath because he was angry at his father for refusing to let him borrow a pickup truck." This being in Alabama. The defendants' own brief spelled this out, perhaps to show how reckless and immature the whole thing was.  Duke being the sixteen year old.  The deterrent effect of this rather unclear, we are left with retribution.

I assume the family and personal dynamics might be a bit more complicated than being mad at the father for not letting them borrow a truck. The retribution value of executing a few heinous murderers, even beyond the fact that the teenagers here weren't torturing strangers for sport or anything, still alludes me.  We have a general problem with dealing with violent crime the wrong way in this country.  But, executing a few people among the unfortunately numerous horrible cases of violence that more often than not tends to have such a personal connection has a certain symbolic uniqueness to it.

[Some suggested there was inconsistency with the state passing a strong anti-abortion law while at the same time executing someone. Tad simplistic, especially when noting the law provides a few minimal exceptions while this execution involved someone who helped murder four people.  We aren't all Jainists here. There are possible differences here without people being total "pro-life" hypocrites.  Even the Catholic Church thinks there are some cases where taking life might be valid.]

Donnie Edward Johnson (Tennessee) is the other case. It's one of the more blatant long outstanding cases, the murder being carried out in 1984.  Furthermore, there is a claim that life imprisonment (at least long term confinement) had rehabilitation effects. In fact, the daughter of the victim (he murdered his wife) now is asking for a reprieve. Like a New York case from years back, however, her sibling (and his own son) disagrees.  Anyways, the governor who ran focusing on his Christian faith said "nope." And, yes, if another person of a different faith had a similar redemption story, we should consistently support not executing the person.  Likewise, there is a good chance that in some cases a Muslim inmate might be treated differently.  Such discriminatory sentiment is a separate concern. [Both were carried out apparently without a hitch.]

There is one execution scheduled each the next two Thursdays.

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Meanwhile, in the face of years of sketchy drugs from overseas sources, the Justice Department put forth an OLC opinion arguing that the FDA does not have jurisdiction over execution drugs. The conservative "the death penalty is constitutional so we need to give states more discretion to allow them to carry it out" argument was raised. Power over drugs for euthanasia (including for animals) left open. This clashed with FDA judgment and of course Obama Administration policy. The FDA for one thing refused to assume denying states from obtaining unauthorized drugs from overseas would block capital punishment. They could obtain drugs some other way.

Plus, to toss it in, there are other means to execute including nitrogen gas and the firing squad.  The regulation of euthanasia drugs suggests that just because a drug is used to kill someone doesn't mean the Food and DRUG Administration has no power over it.  It is not a drug used for personal use that might fall under the DEA. Executions involve a barbiturate, paralyzing agent and something to stop the heart. If the drugs do not work, the execution might be botched, including causing severe pain. It is the sort of thing the FDA is there to regulate.

Anyway, there is an injunction in place now, so it is unclear where this will lead.  But, the goal is help the states out obviously.