Florida Executes Mentally Ill Vietnam Veteran Diagnosed with “Traumatic Brain Disease”
Florida has executed Bobby Joe Long (pictured), a mentally ill Vietnam veteran with service-related traumatic brain injuries, after the U.S. Supreme Court on May 23, 2019 declined to review his case. Long had asked the Court to halt his execution to address “[w]hether an individual who suffers from severe mental illness is exempt from execution under the Eighth Amendment. In 1980, Long received a diagnosis of “Traumatic Brain Disease” from the Veterans Administration as a result of injuries sustained during his military service. He also had a history of several traumatic head injuries during his childhood. Following his diagnosis, he was discharged and given a “service-connected disability rating,” but received little or no treatment from the military or the VA for his brain damage. Four years later, he killed eight women in an eight-month span, including the murder for which he was sentenced to death. At Long’s trial, medical experts testified that his injuries had damaged the areas of the brain responsible for judgment and behavior control.
Long’s petition for review—one of three he filed in the Court during the pendency of his death warrant—urged the Court to prohibit the execution of people with severe mental illness, saying, “[t]he same lessened moral culpability cited by Atkins [which prohibited the execution of people with intellectual disability] and Roper [which prohibited the execution of juvenile offenders] in finding the intellectually disabled and juveniles ineligible for execution applies with equal force to individuals with severe mental illness.” His lawyers argued that “[s]evere mental illness, like intellectual disability, is a persistent and frequently debilitating medical condition that impairs an individual’s ability to make rational decisions, control impulses, evaluate information, and function properly in society. Because severely mentally ill defendants have a lessened moral culpability, because their impairments ‘jeopardize the reliability and fairness of capital proceedings,’... and because their diminished capacity negates the retributive and deterrent goals of capital punishment, they should be held categorically ineligible to receive the death penalty.”
Florida’s Catholic bishops had called on Governor Ron DeSantis to grant clemency for Long, citing both Long’s mental illness and the Church’s teachings against capital punishment. In a letter to the governor, the Florida Catholic Conference wrote that, “[a]lthough [Long] caused much harm, society has been safe from his aggressive acts in the decades of his incarceration. Without taking his life, society can be protected while he endures the alternative sentence of life without the possibility of parole.” The letter called attention to “the multiple traumas [Long] experienced throughout his life,” including a motorcycle accident he suffered in 1974. “That incident profoundly affected him and his behaviors,” the Florida conference said, and “contributed to his receiving a disability rating from the military, from which he was honorably discharged.”
Long was the eighth person executed in the United States in 2019 and the first in Florida. He is the 1498th person put to death in the U.S. since executions resumed in 1977.
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Supreme Court Denies Review in Death-Penalty Case Where Texas Judge Rubberstamped Prosecution’s Findings
The U.S. Supreme Court has declined to review a case in which the Texas courts decided a death-row prisoner’s appeal by adopting the prosecution’s fact findings and legal arguments word-for-word without providing the defendant’s lawyer any opportunity to respond. In a May 20, 2019 ruling, the Court without comment denied the petition for writ of certiorari filed by Ray Freeney (pictured), thereby permitting the Harris County prisoner’s conviction and death sentence to stand. The decision was the latest in a series of cases in which the Court has refused to take up the issue of state-court rulings that are verbatim copies of proposed orders written entirely by the prosecution. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the systemic rubberstamping of prosecutors’ pleadings in Harris County capital cases. The researchers found that county judges had adopted prosecutors’ proposed findings of fact verbatim in 96% of 191 capital cases in which factual issues had been contested. Harris County has executed 129 men and women, more than double the number executed in any other county in the United States and more than have been executed in any state in the country other than Texas.
In a Washington Post op-ed, columnist Radley Balko said Freeney’s case not only raises questions about the practice of judges rubberstamping prosecutorial findings, but also “test[s] the absurd, outer limits of AEDPA’s deference to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus amendments passed by Congress in 1996. Those amendments have significantly reduced federal courts’ ability to review and redress violations of a state defendant’s right to a fair trial and sentencing by requiring federal judges to give a high level of deference to state court findings. Balko explains, “to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or an ‘unreasonable determination of the facts in light of the evidence presented.’ Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.”
When Ray Freeney’s case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. Freeney’s defense attorneys were never given an opportunity to respond, or to submit their own brief containing new evidence to support their claim that his trial attorneys had provided inadequate counsel. The University of Texas study has demonstrated that “rubberstamping” of prosecutors’ proposed orders is common in Harris County, particularly in cases in which the judge was a former county prosecutor. But Feeney’s case stood out even more in that Judge Magee provided his lawyers no opportunity to respond to the prosecution’s proposed disposition of the case. “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County,” Balko said, “the entire system begins to look like a farce.”
Under AEDPA, rubberstamped findings are routinely treated with the same level of deference as findings that judges wrote themselves. Balko explains that, “under the controlling case law for the [Texas federal courts], ‘a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.’” “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.”
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Death-Penalty Opinions Expose Deep Divisions on U.S. Supreme Court
In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.
In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.
In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”
Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.
In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. 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.”
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Supreme Court Denies Review in Case of Death Sentence Tainted by Anti-Gay Bias
The U.S. Supreme Court has declined to review the case of a South Dakota death-row prisoner whose jurors made anti-gay statements and relied on homophobic beliefs in deciding to sentence him to death. On April 15, 2019, the Court without comment denied a petition filed by Charles Rhines (pictured) asking the Court to declare that the constitutional right to an impartial jury applies equally to bias against a defendant’s sexual orientation. In a statement responding to the Court’s decision, Shawn Nolan, one of Rhines’ federal appeals lawyers, said: “As Chief Justice Roberts wrote in an earlier case, ‘[o]ur law punishes people for what they do, not who they are.’ New evidence – which has never been heard by any court – shows that some of the jurors who sentenced Mr. Rhines to death did so because of who he was, not for what he did.” The jurors in Rhines’ case knew that he was gay, and, Nolan said, new statements from jurors in the case “show that some jurors … thought that he would enjoy life in prison with other men and it would not serve as a sufficient punishment. The jurors’ anti-gay bias deprived Mr. Rhines of his right to a fair sentencing process under the Sixth and Fourteenth Amendments.”
Rhines had sought review based on the Supreme Court’s 2017 ruling in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” He argued that the same constitutional principle should apply to bias based on sexual orientation.
Jurors told Rhines’ attorneys that “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that one juror said, “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.” Several civil rights groups urged the Court to hear his case. The NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and seven LGBTQ rights organizations submitted amicus briefs in support of Rhines. The NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” Nolan echoed that idea in his statement on the Supreme Court’s denial, saying, “both racial prejudice and anti-gay prejudice have no place in the criminal justice system. Both undermine public confidence in the fairness of the system, particularly when jurors must decide between life imprisonment and death.”
Despite the 2017 decision allowing consideration of racially biased juror comments, the Court has declined to intervene in two cases this term in which death-row prisoners were sentenced to death by racist jurors. On March 18, the Court denied review in the case of Georgia death-row prisoner Keith Tharpe. One of Tharpe’s jurors signed an affidavit saying “there are two types of black people: 1. Black folks and 2. N[**]gers,” and Tharpe was not in “the 'good' black folks category.” This same juror also said he “wondered if black people even have souls.” On April 1, the Court also declined to hear the case of Julius Jones, an Oklahoma death-row prisoner whose jury included a juror who said, “they should just take the n****r out and shoot him behind the jail.” The Court also received harsh criticism after it vacated a federal appeals court stay of execution and permitted Alabama to execute Domineque Ray, a Muslim prisoner who said Alabama’s refusal to allow his imam in the execution chamber amounted to religious discrimination.
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Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court
In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.
Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.
Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.
In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.
Alabama has not yet set a new execution date.
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Commentators Question Why Supreme Court Stopped One Execution, But Not Another With Identical Religious Exercise Issues
Legal scholars and commentators across the political spectrum have criticized the U.S. Supreme Court for its seemingly contradictory actions, less than two months apart, in two nearly identical religious freedom claims from death-row prisoners. On February 7, 2019, the Court vacated a stay of execution and permitted Alabama to execute death-row prisoner Domineque Ray (pictured, left), who had claimed that the Alabama Department of Corrections was violating his First Amendment rights by refusing to allow his Muslim religious advisor in the execution chamber in circumstances in which the state permitted a Christian chaplain to be present for Christian prisoners. The following month, the Court issued a stay to Patrick Murphy (pictured, right), a Buddhist Texas death-row prisoner who had challenged the state’s refusal to allow his Buddhist spiritual advisor in the execution chamber. Both states only permitted chaplains who are employed by their corrections departments to be in the execution chamber. Alabama only employed Christian chaplains and Texas employed only Christian and Muslim chaplains. The Court voted 5-4 to allow Ray’s execution to proceed, but halted Murphy’s March 28 execution with only two dissents.
The Court was widely criticized after Ray’s execution, leading some to theorize that the justices who changed their votes did so in response to concerns about the Court’s reputation. David French, writing for the conservative National Review, wrote of the Ray decision, "The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death.” Liberal Yale Law professor Stephen Carter wrote, “In my 30 years of writing about religious freedom, I can't recall a case as outrageous.” Of the different decision made in Murphy’s case, law professor Ilya Somin wrote that the justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations. … Presented with a chance to ‘correct’ their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.” Attorney Deepak Gupta, who has argued before the Court, said, “This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error. Is the Alabama case materially different? They don’t say.” Spencer Hahn, who represented Ray, said he hopes his client helped draw attention to religious discrimination in the death penalty. “I’d like to think Mr. Ray’s death was not in vain,” he said.
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Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and in the U.S.
As human rights activists raise alarms about a new law in Brunei that would punish homosexuality by death by stoning, the U.S. Supreme Court considers whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row prisoner, is asking the U.S. Supreme Court to review his case, after a lower federal court denied him the opportunity to present juror statements showing that homophobic prejudice played a role in his death sentence. Leading civil rights organizations, including the NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and Human Rights Campaign, have asked the Court to hear the case. Meanwhile, on April 3, 2019, Brunei will institute new laws that will make homosexual sex punishable by death. Brunei’s action has drawn a sharp rebuke from United Nations officials, international human rights groups, and activists—including actor George Clooney and musician Elton John, who are calling for a boycott of properties owned by the Sultan of Brunei.
Charles Rhines filed a petition in the U.S. Supreme Court in February 2019 seeking review of his case after a split panel of the U.S. Court of Appeals for the Eighth Circuit voted 2-1 not to hear his appeal. The civil rights organizations filed supporting briefs on March 25 and the Court is scheduled to consider Rhines’ petition on April 12. At Rhines’ trial, prosecution witnesses testified that he was gay and, according to jurors, “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that one juror said, “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.” South Dakota prosecutors have asked the Supreme Court to refuse to consider the civil rights groups’ briefs, calling the federal defenders office representing Rhines “an extremist organization” and saying the petition should “not become a cause célèbre for making Rhines of all people a false prophet of homosexual rights.”
In 2017, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ lawyers are advocating that the Court extend that ruling to include juror bias against a defendant’s sexual orientation. In an amicus brief, the NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” A brief submitted by seven LGBTQ rights organizations said, “[b]ias based on sexual orientation in jury deliberations reinforces historical prejudice against lesbian, gay, and bisexual people and undermines the integrity of our judicial system.”
Anti-LGBTQ use of the death penalty came under renewed international scrutiny as Brunei prepares to put a new law in place that would make adultery and homosexual sex punishable by death by stoning. U.N. High Commissioner for Human Rights Michelle Bachelet called the law “cruel and inhuman,” “draconian,” and “a serious setback for human rights protections.” Actor and activist George Clooney urged a boycott of hotels owned by Brunei’s monarch, Sultan Hassanal Bolkiah. In an op-ed for Deadline, Clooney wrote, “every single time we stay at or take meetings at or dine at any of [the Sultan’s] nine hotels we are putting money directly into the pockets of men who choose to stone and whip to death their own citizens for being gay or accused of adultery.” Musician Elton John joined Clooney’s call for boycotts, saying, “Discrimination on the basis of sexuality is plain wrong and has no place in any society.” “I believe that love is love and being able to love as we choose is a basic human right,” John said.
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Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease
In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.
In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.
Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”
In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in , there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”
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Justices Express Concern About “Disturbing History” of Race Bias in Mississippi Death Penalty Case
The U.S. Supreme Court seems poised to grant a new trial to Curtis Flowers (pictured), an African-American death-row prisoner tried six times for the same murders by a white Mississippi prosecutor who struck nearly every black juror from service in each of the trials. During oral argument in Flowers v. Mississippi on March 20, 2019, eight justices expressed concern that Flowers had been denied a fair trial as a result of race discrimination in jury selection in his case. Justice Samuel Alito called the case “very troubling” and Justice Brett Kavanaugh raised concerns about prosecutor Doug Evans’ pattern of discrimination.
Flowers has been tried six times for a quadruple murder in Winona, Mississippi in 1996. His first three convictions were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct. Two of those reversals included findings that Evans had violated Batson v. Kentucky, the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. At issue before the Court was Flowers’ sixth trial, in which a jury of 11 white jurors and one black juror convicted him and sentenced him to death.
The justices focused many of their questions on the records showing that Evans had a pattern of racial discrimination in selecting the juries for Flowers’ trials. Over the course of the five trials for which jury selection transcripts are available, Evans struck 41 of 42 eligible black jurors he had the opportunity to accept. Justice Kavanaugh said, “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you’re just going to favor someone because they’re the same race as the defendant?” Justice Alito said that Evans’ history left “reasons to be suspicious,” and said the case had an “unusual and really disturbing history.” Justice Sonia Sotomayor questioned Evans’ motives in personally prosecuting Flowers six times. Jason Davis, the lawyer arguing on behalf of the state of Mississippi, acknowledged that the history was “troubling,” but argued that Evans’ jury strikes in the sixth trial were not racially motivated. Kavanaugh challenged Davis, saying, “Part of Batson was about confidence of the community and the fairness of the criminal justice system. That was against a backdrop of a lot of decades of all-white juries convicting black defendants …. Can you say you have confidence in how this all transpired in this case?”
Sheri Lynn Johnson, arguing on behalf of Flowers, said Evans entered Flowers’ trial “with an unconstitutional end in mind – to seat as few African-American jurors as he could.” “The history is relevant,” she said, calling it “a history of a desire for an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court.” She urged the justices to consider the pattern of discrimination, not just Evans’ actions in the most recent trial. If the Court overturns Flowers’ conviction, the case will return to the state to decide whether to try Flowers for a seventh time.
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Supreme Court Refuses to Hear Georgia Death-Penalty Case Involving Racist Juror
For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.
Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."
In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.
Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire. True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”
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