An Execution and Other Legal News

The Supreme Court has a short order list but granted two cases, including one that in part offers a chance to overturn (or modify) Chevron. That is the big 1980s case that requires a higher test to second guess agency decisions that are not a clear misapplication of the law or raise special issues.  

The justices purposely only took the more activist question presented, sort of blatant foreshadowing.  Some argue that the opinion has little left anyway but a clear overrule will likely add to more activism in the lower courts.  

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A letter counseling Florida not to execute Darryl Barwick spoke of him suffering "developmental disabilities" and "psychological problems." And, the original jury voted 9-3 for death.  He had a new jury later on after successful litigation but that one voted 12-0.  Oh well.  You roll the dice. 

A final petition challenged a clemency procedure that did not provide enough room to argue the issues.  It noted in 40 years such attempts were 0/99.  It flagged these issues: 

Darryl Bryan Barwick—an individual with a severe neuropsychological disorder, lifelong cognitive impairments, and low mental age—is now slated to be the 100th, facing execution on May 3, 2023, for a crime he committed at only 19 years old.

Barwick's petition raises two issues: is the death penalty unconstitutional for offenders younger than age 21 and did Florida's resolution of that issue—without independently considering evolving standards of decency—violate the 8th Amendment.  Expanding the current eighteen-year-old cut-off is a long shot, with five justices perhaps favoring paring it back, but you take what you can have.  

One thing that stands out is the length of time he has been on death row, even when re-sentenced in the 1990s. His brutal crime (involving burglary, sexual abuse, and brutal murder) is not one that makes you wonder why he was sentenced to death.  I have repeatedly noted that Justice Breyer has cited this concern (as did Stevens) but it has not received much traction. 

I have regularly noted that there is a problem with executing someone on death row for an extended period of time, here around thirty-five years. The time on death row itself is a type of cruel and unusual punishment. It is also a very different state of affairs for "just deserts" when you wait thirty years to execute someone. Quite a different person, who was already punished for decades.  For others, it is justice delayed, not denied.

One article referenced him being "euthanized by lethal injection," which is a dubious way to frame it. Is he a dog? Well, people have referenced him as more of a monster than a person. 

But, he is a person. He had been imprisoned for thirty-five years. On some level, though most inmates continue to fight [the last SCOTUS petition I found was in 2018], maybe there is little to complain about. What sort of "life" does he have? 

Still, he remains a person. What does executing him now do? What value is it? Certain loved ones or members of the public might wish him dead. Others in these cases do not. Even that is of limited value in judging public welfare.

SCOTUS, including the liberals, denied the final attempts without comment.  This is wrong but typical now.  Barwick was executed.

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There is one more person scheduled to be executed this month. That would be cause-celebre Richard Glossip, who the Republican Attorney General of Oklahoma feels should not be executed. It is not just his call. 

His request to the state court failed. A petition to the pardon board failed 2-2 (majority necessary even if the governor wanted to commute). And, now the Supreme Court has been petitioned, unchallenged, since again the AG agrees.  The whole thing is so bad that conservative wunderkind Paul Clement (who leads the Chevron repeal case cited above) joined the AG. 

I think this one actually has a shot with it helping that the newbies were not around for Glossip v. Gross.  Gorsuch is quite supportive of the death penalty but maybe the other two will join Roberts.  It is pretty blatant and this Supreme Court picks its spots regarding overturning criminal travesties.  

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Also, in legal news: an all-men South Carolina Supreme Court as the deciding vote in the abortion rights case hits the mandatory retirement age.

Item: The Library of Congress first made a selection of Stevens' papers available in 2020. Those papers largely covered 1975 to 1984. The new selection opening Tuesday includes the years 1984 through 2004.  A lot of fodder here, especially since that is the Bush v. Gore period.  

Tuesday also gave us the Senate Judiciary hearing on Supreme Court ethics with Senator Whitehouse having a smackdown, various Dems concerned, and Republicans full of shit.  

ETA: The hits keep on coming.  Thomas' ward got tuition paid by our favorite billionaire.  Want to talk about book deals?  Call out everyone.  

Campaign finance laws are for all parties and ethics laws will apply to all.  There are still worse actors.  Thomas is a glaring case, but the buck also stops at Roberts as head of the Supreme Court.