Since 1963, three people were executed by the feds. Timothy McVeigh (our "what about Hitler," basically), someone behind the murder of multiple people as part of a drug smuggling ring and someone who kidnapped/raped/murdered a servicewoman. This all happened in 2001 and 2003. There does not seem to have been much of a push to re-start the process.
But, AG Barr wanted (one more way, somehow, one pines for Jeff Sessions) to find more ways to screw us over, and a few were scheduled to start this very week. There were various attempts made to delay the works, some person specific (e.g., a claim of racism). The major collective argument (that seemed to have some merit) was that the protocols set up violated a statutory requirement that followed local rules. But, a conservative leaning panel held 2-1 it did not, there was no en banc reversal and only RBG and Sotomayor (on the record) voiced a desire to take the case. Seems a split ruling that could lead to re-starting executions after 17 years, one with major federalism and even agency law issues, would seem to justify full review.
Some of the approaches used to hold up the works have a bit of irony. There is the argument that religious liberty would require delay because the Big V makes the spiritual advisor not available. A related concern was raised by family members of the victims who said they could not safely travel to view the execution (who didn't want the execution to take place anyway -- this happens though it conflicts with the "what about the victims" narrative of some people) but on Sunday (the executed scheduled for Monday) the court of appeals overturned. Doing the Lord's work, I guess.
And, then there is the temporary hold based on the dangers of the means of execution (not exactly a concern for five members of SCOTUS). Now, this very well might be based on good facts, but again, we are working with bad binding SCOTUS precedent here. Let's say it does not surprise (though I'm fully supportive of an immigrant non-prosecutor from a non-elite law school) the Obama appointee involved was (per Wikipedia) "a trial attorney and supervisor at the Public Defender Service for [D.C.]."
The Barr Justice appealed, saying there was no chance that her order would be upheld. Sure. Delaying for the sake of delay is only allowed when investigating Trump. But, the Court of Appeals did -- not much before midnight -- hold things up. Briefing is due in ten days. It is overall rather absurd to rush things near an election like this. Just postpone the execution until next year.
ETA: CJ Roberts in his only written dissent of the term started off with a statement of the horrible nature of the crimes of the defendant at issue when the matter at hand was jurisdictional matters. Concerns about victims is somewhat selective. Three close family members either wanted the execution of Daniel Lee Lewis not to occur or to be delayed so they could safely travel to watch the proceedings. Watching an execution is cited by supporters of the death penalty as important for closure.
But, here, the family members' request was rejected. The final rejection occurring two o'clock in the morning without comment. The district court thought the request sound and there is some specific statutory concern for the victims here. Yes, for the second time in a few years, we had a middle of the night ruling, split by ideology, in a death penalty case.
This time, the execution actually occurred -- eight o'clock in the damn morning. Such a rush! Well, it isn't Trump enabling. Realize people are cynical here, but litigation takes time. This is the first federal execution after seventeen years. A serious challenge involving the statutory requirements of means of execution was settled recently. The court of appeals had expedited briefing due in ten days. And, giving the lower courts more power to weigh if Congress is correctly using its legislative oversight was deemed appropriate. Let the damn lower courts weigh the specifics of the fact based 8A claims here.
(The district court judge okayed a request to preserve evidence of the execution to study what happened. Other than passing immediate press reports that the last controversial execution went off without incident, it is unclear to me if it was investigated. You would think it might have been with all the controversy up to and including the Supreme Court. OTOH, a lawyer involved said that perhaps we simply are unable to know.)
In the middle of the night, 5-4, the Supreme Court summarily showed a rush to let federal executions start again. Three justices joined Sotomayor's dissent calling them out for this travesty. Breyer (with RBG) again noted the problems with the death penalty as a whole, including the fact he was on death row for two decades. I think this is a bit of an overcorrection of how "well" liberals had it this term -- you focus on the positive while remembering it is still a conservative Court -- but sometimes (like Trump) you remember how bad theses people are.
(Justice Kennedy early on was somewhat supportive of means of execution claims but from Baze on went along with the conservatives including the somewhat angry Glossip opinion. But, Kennedy at least held up the execution there to allow the case to go on. Well, eventually. Oh. I'm thinking of the second case, that eventually was decided with his replacement.)
I know it's hard to care about the fate of a multiple murderer, though it helps that the family members were against the execution too. But, sometimes, you need to focus on a single thing and the basics of right and wrong. And, basic fairness.
----
One more thing: It was noted on Twitter by someone that Clinton (the 1990s included an expansion of the death penalty) and Obama (who defended it and refused to commute the sentences; the person sarcastically noted an Obama person felt even asking if he would do that was stupid) helped. Plus, Obama supported federal trials with execution as an option. Granted. There is an extra bit of "fu" here but the system is arbitrary. Something real bad is going to happen eventually.
I'm not totally on the train there though. Obama and Clinton are not in the same position here, particularly Clinton's support of tough on crime measures. Obama not only didn't actually carry out the execution of anyone and helped delay, his administration helped delay it in the states by holding federal law made importation of execution drugs illegal if their safety could not be secured. This was a significant decision. As to his support, yes, he wasn't totally against the death penalty. He wasn't the radical socialist stereotype some made him out to be (or maybe wished he was). He was more moderate, matching the public at large.
Finally, I'm wary about any idea that he should have simply commuted the sixty or so people [the ones chosen to die by Barr would likely not be the top on any list there] to LWOP or whatever. One or more governors did do that though even there the rule tended to be a moratorium. The pardon power is very well pretty absolute except for a somewhat unclear impeachment exception or illicit motives like bribery. But, as matter of separation of powers, it is an iffy matter. After all, in theory, you can just commute every possession sentence to time served too.
But, AG Barr wanted (one more way, somehow, one pines for Jeff Sessions) to find more ways to screw us over, and a few were scheduled to start this very week. There were various attempts made to delay the works, some person specific (e.g., a claim of racism). The major collective argument (that seemed to have some merit) was that the protocols set up violated a statutory requirement that followed local rules. But, a conservative leaning panel held 2-1 it did not, there was no en banc reversal and only RBG and Sotomayor (on the record) voiced a desire to take the case. Seems a split ruling that could lead to re-starting executions after 17 years, one with major federalism and even agency law issues, would seem to justify full review.
Some of the approaches used to hold up the works have a bit of irony. There is the argument that religious liberty would require delay because the Big V makes the spiritual advisor not available. A related concern was raised by family members of the victims who said they could not safely travel to view the execution (who didn't want the execution to take place anyway -- this happens though it conflicts with the "what about the victims" narrative of some people) but on Sunday (the executed scheduled for Monday) the court of appeals overturned. Doing the Lord's work, I guess.
And, then there is the temporary hold based on the dangers of the means of execution (not exactly a concern for five members of SCOTUS). Now, this very well might be based on good facts, but again, we are working with bad binding SCOTUS precedent here. Let's say it does not surprise (though I'm fully supportive of an immigrant non-prosecutor from a non-elite law school) the Obama appointee involved was (per Wikipedia) "a trial attorney and supervisor at the Public Defender Service for [D.C.]."
The Barr Justice appealed, saying there was no chance that her order would be upheld. Sure. Delaying for the sake of delay is only allowed when investigating Trump. But, the Court of Appeals did -- not much before midnight -- hold things up. Briefing is due in ten days. It is overall rather absurd to rush things near an election like this. Just postpone the execution until next year.
ETA: CJ Roberts in his only written dissent of the term started off with a statement of the horrible nature of the crimes of the defendant at issue when the matter at hand was jurisdictional matters. Concerns about victims is somewhat selective. Three close family members either wanted the execution of Daniel Lee Lewis not to occur or to be delayed so they could safely travel to watch the proceedings. Watching an execution is cited by supporters of the death penalty as important for closure.
But, here, the family members' request was rejected. The final rejection occurring two o'clock in the morning without comment. The district court thought the request sound and there is some specific statutory concern for the victims here. Yes, for the second time in a few years, we had a middle of the night ruling, split by ideology, in a death penalty case.
This time, the execution actually occurred -- eight o'clock in the damn morning. Such a rush! Well, it isn't Trump enabling. Realize people are cynical here, but litigation takes time. This is the first federal execution after seventeen years. A serious challenge involving the statutory requirements of means of execution was settled recently. The court of appeals had expedited briefing due in ten days. And, giving the lower courts more power to weigh if Congress is correctly using its legislative oversight was deemed appropriate. Let the damn lower courts weigh the specifics of the fact based 8A claims here.
(The district court judge okayed a request to preserve evidence of the execution to study what happened. Other than passing immediate press reports that the last controversial execution went off without incident, it is unclear to me if it was investigated. You would think it might have been with all the controversy up to and including the Supreme Court. OTOH, a lawyer involved said that perhaps we simply are unable to know.)
In the middle of the night, 5-4, the Supreme Court summarily showed a rush to let federal executions start again. Three justices joined Sotomayor's dissent calling them out for this travesty. Breyer (with RBG) again noted the problems with the death penalty as a whole, including the fact he was on death row for two decades. I think this is a bit of an overcorrection of how "well" liberals had it this term -- you focus on the positive while remembering it is still a conservative Court -- but sometimes (like Trump) you remember how bad theses people are.
(Justice Kennedy early on was somewhat supportive of means of execution claims but from Baze on went along with the conservatives including the somewhat angry Glossip opinion. But, Kennedy at least held up the execution there to allow the case to go on. Well, eventually. Oh. I'm thinking of the second case, that eventually was decided with his replacement.)
I know it's hard to care about the fate of a multiple murderer, though it helps that the family members were against the execution too. But, sometimes, you need to focus on a single thing and the basics of right and wrong. And, basic fairness.
----
One more thing: It was noted on Twitter by someone that Clinton (the 1990s included an expansion of the death penalty) and Obama (who defended it and refused to commute the sentences; the person sarcastically noted an Obama person felt even asking if he would do that was stupid) helped. Plus, Obama supported federal trials with execution as an option. Granted. There is an extra bit of "fu" here but the system is arbitrary. Something real bad is going to happen eventually.
I'm not totally on the train there though. Obama and Clinton are not in the same position here, particularly Clinton's support of tough on crime measures. Obama not only didn't actually carry out the execution of anyone and helped delay, his administration helped delay it in the states by holding federal law made importation of execution drugs illegal if their safety could not be secured. This was a significant decision. As to his support, yes, he wasn't totally against the death penalty. He wasn't the radical socialist stereotype some made him out to be (or maybe wished he was). He was more moderate, matching the public at large.
Finally, I'm wary about any idea that he should have simply commuted the sixty or so people [the ones chosen to die by Barr would likely not be the top on any list there] to LWOP or whatever. One or more governors did do that though even there the rule tended to be a moratorium. The pardon power is very well pretty absolute except for a somewhat unclear impeachment exception or illicit motives like bribery. But, as matter of separation of powers, it is an iffy matter. After all, in theory, you can just commute every possession sentence to time served too.
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