Michael Tisius Is Executed

A common approach in an argument is to try to push the envelope with special extreme cases. This is a bit of a trick. Few things are absolute. You do draw lines. And, the lines are not magically special even ones with no dispute. There seems to be an attempt at times to assume such but let's be honest.

It is appropriate that this rule itself not be absolute since it basically reaffirms the rule. Anyway, I think the death penalty should not be allowed. Again, people will cite extreme cases. They become less convincing in practice.  There repeatedly is some difficulty such as doubts and mitigation.

This is why other than Timothy McVeigh that there were two federal executions between the 1960s and 2020. And, one of the three was probably an arbitrary drug kingpin execution (hard to believe there was something unique about the guy).  The other seems like a prime case in some ways but again was there one in sixty years? I think not.

Just after midnight on June 22, 2000, Michael Tisius and Tracie Bulington entered a county jail, intent on forcibly freeing an imprisoned friend. Mr. Tisius, 19 years old and carrying a gun, shot and killed two guards during the attempt, then fled.

The murder of two guards during an escape attempt seems to be one of the few "special" cases where the death penalty would be justified. At least if you thought execution was ever justified.  It would be even worse if the person who murdered the guards during the attempt (they failed; couldn't find the keys) was the inmate. But, something of a fine line.

The difference is not totally trivial.  First, it does go to the level of wrong and criminal-minded the person is. A person in prison for rape or murder that kills to get out is worse than a family member killing to try to get him out.  Second, it factors into the future dangerousness of life in prison. 

As one juror thought:

During deliberations, Mr. Smith said, he felt it was a crucial fact that Mr. Tisius had killed more than one person. Mr. Tisius had an opportunity to stop before shooting the second jail employee, Mr. Smith recalls reasoning, making the death penalty a just punishment.

As usual, we start to have doubts. First, he's 19, which is still very young.  Second, the inmate (who allegedly planned the whole thing, Burlington was his girlfriend) and the other person were not sentenced to die. They obtained life sentences.  Yes, the person who pulled the trigger has extra guilt to some degree.  But, how much really?  

And, the jurors themselves later had second thoughts. Jurors do sometimes have second thoughts. Who doesn't?  Not as usual to have six (including two alternatives, but that is still 1/3 of the jury) jurors:

But they spoke of new details they learned from Mr. Tisius’ legal team and what they remembered from the trial: the harrowing background of Mr. Tisius’ childhood, which included abuse and neglect; of his mental impairments; and of his good behavior in prison since his conviction.

I will toss in my usual comment that at some point a long time passing since the conviction is a problem.  Now that Justice Breyer retired, maybe Justice Jackson will take on that concern.  Anyway, an execution warrants a special degree of assurance. When so many jurors second-guess themselves, it starts to seem problematic. As are the reasons that are concerning them.  

As usual, anything that can be used (that is, within reason) is brought out. So, it was flagged that a juror was illiterate, which is against state law. It would also not be trivial since it goes to be able to properly understand the evidence.  The appeals court said the judge who held things up on that ground did not have the legal power to do so. 

Also, apparently, the person is not even totally illiterate.   OTOH, perhaps the matter is too much in dispute, and since it is a basic disqualification (or should be) if a juror is disqualified, the matter has some bite.  

The claim -- which as usual no one commented on when SCOTUS rejected a request for a stay/cert. grant today -- included the argument that the government read the form out to him, so was aware of the problem, and then disposed of the form to help hide the evidence.  

The NYT article also had this somewhat weird fact: "The site of the former jail where the murders took place in Randolph County, Mo. The jail is now a family home."  Meanwhile, a motion to extend the time to file a response for the Glossip case was granted. SCOTUS should just bite the bullet there and admit a violation of due process.  

Michael Tisius had a final claim that reached the Supreme Court regarding being under 21 and having other mental/behavior problems as well.  These are not trivial claims but the Supreme Court had now repeatedly ignored them fairly recently.  Along with executing those who are in prison for over 20 years (raising questions of legitimate purpose at this point and the conditions of extended time on death row, including solitary confinement), these things do not disappear just because they are ignored them.  

The Supreme Court rejected (as I noted on Monday) part of his claims a day early. The disqualified juror issue was left open. Meanwhile, the governor rejected a request for commutation.  Another claim was (as noted above) rejected today without comment.  Why?  Why can't Sotomayor or Jackson at least comment on why they did not take the case, one that raised more than one far from a trivial issue (even granting one not warranting review, which you know, you can explain)?  

The murder of two guards during a failed prison break warrants a long sentence.  OTOH, the execution -- over 20 years later (it appears there was some issue and there was a re-sentencing around 2010) -- in the face of juror opposition and evidence he has various problems because of some unhinged act when he was 19 (for which the intended benefactor who very well might have planned the thing only got prison for) is not sound public policy.  It's more "The Lottery" stuff where a few arbitrary people die. 

He was executed. There are many other problems in the criminal justice system, but yes, the taking of life continues to stand out for me. 

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One criminal law blogger (who I have an issue with separately) basically argued once that we spend too much time worrying about the death penalty above and beyond other things.  Which is fine. 

I don't think it is really surprising (intentional end of life and all) and the argument that those who spend the most effort just worry about it is wrong. Consider the decision in the 1960s for the Inc Fund (the separate litigation wing of the NAACP) to focus on the death penalty.  They saw it as a racist institution.  It is not like they are just concerned with executions.

I think executions provide a window into a wider universe. Michael Tisius should not be executed. But, if he was not sentenced to die (and many like him are not), his background and treatment should still be our concern. 

The idea we should keep people in prison without a chance of parole for things they did at age 19 is bad policy.  And, to circle back, the step after not executing people who kill under the age of eighteen was to make it harder to put people who commit crimes before 18 in life without parole.  

While writing this, I also thought about people who die in prison, to take an example. The small number of people executed in recent years (a rate of around 20) only makes it more likely (you see this in Ohio, which has had a moratorium for a while now) to die on death row in many cases than to be executed.  This would also include suicides.  I don't know about people being killed while on death row (a few famous prisoners have been in regular population) but maybe that too.  

We don't hear much about these people.  During COVID, a few stories arose (and it got a bit of attention at least at the Supreme Court) about outbreaks in prison.  But, we don't hear much about people who die in prison, including those that for whatever reason should not be there. For instance, some years back now, a woman was arrested for some minor thing in Texas and died in her cell.  Sandra Bland.  Yes, I "said her name."

We have received a bit of attention about prison rape.  But, we should learn more about the people in prison, at the very least those who die there outside of execution chambers.