Headless, naked corpse found floating in Red Hook channel: witness

A woman’s headless “butchered” corpse was found floating off Brooklyn Tuesday morning, according to witnesses who say it looked like she’d been deliberately dismembered. “It was brutal,” said a Carroll Gardens man who found the body and asked to remain anonymous. “The woman wasn’t just murdered — she was butchered.” “This body was dismembered and…

A woman’s headless “butchered” corpse was found floating off Brooklyn Tuesday morning, according to witnesses who say it looked like she’d been deliberately dismembered. “It was brutal,” said a Carroll Gardens man who found the body and asked to remain anonymous. “The woman wasn’t just murdered — she was butchered.” “This body was dismembered and...

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Immigration symposium: Delays, detentions and due process – Why Jennings matters

Immigration symposium: Delays, detentions and due process – Why <em>Jennings</em> mattersShoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and the author of  “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.” On June 26, the Supreme Court ordered reargument in the case of Jennings v. Rodriguez, which involves […]

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Immigration symposium: Delays, detentions and due process – Why <em>Jennings</em> matters

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and the author of  Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.”

On June 26, the Supreme Court ordered reargument in the case of Jennings v. Rodriguez, which involves an individual who was held in immigration detention for more than three years without a bond hearing. The question before the court was whether detained immigrants have a right to a bond hearing. The U.S. Court of Appeals for the 9th Circuit concluded that detained immigrants must be given bond hearings at least every six months. Kevin Johnson has summarized the case in detail here. The decision by the Supreme Court to postpone Jennings is a disappointment, because it delays the uncertainty over fundamental questions about liberty and due process.

The government has broad discretion to detain immigrants who are alleged to be in violation of immigration law, including lawful permanent residents (green-card holders), students and asylum-seekers. Many detained immigrants are subject to “mandatory detention,” which enables the government to detain them without giving them any opportunity to see an immigration judge to determine whether a release on bond is warranted because they do not post a flight risk or a danger to public safety. At least three sections of the Immigration and Nationality Act contain language about mandatory detention. For example, one section states that Department of Homeland Security shall take into custody categories of noncitizens who have committed certain crimes. Another section mandates detention for inadmissible noncitizens who arrive at the border. A third imposes detention after a person has been ordered removed. The constitutional and statutory limits of mandatory detention have been tested in the courts, but the judicial journey has been a long one. The delay in Jennings only prolongs that journey.

It was not until 2001 that the Supreme Court held definitively that prolonged detention amounts to a due-process violation. In Zadvydas v. Davis, the court declared: “Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty that Clause protects.” Having begun the practice of immigration law before this seminal decision, I have tasted the landscape of immigration detention pre-Zadvydas. My first detainee case was a pro bono case assigned to me by the Arlington Immigration Court. By the time I became his attorney, my client had been in detention for more than two years and had been transferred more than a dozen times. Although the guidance in Zadvydas might have enabled my client to be released from detention much earlier, there are potentially thousands of immigrants who remained in detention indefinitely before this decision. After Zadvydas, in Demore v. Kim, the Supreme Court rejected a constitutional challenge to prolonged mandatory detention pending proceedings. The challenges of prolonged detention remain. As summarized by the 9th Circuit, noncitizens “who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability.”

The outcome in Jennings is unknown, but the case may be decided on statutory or constitutional grounds, or both. The statutory question in Jennings is whether or not the statute itself requires a bond hearing at reasonable intervals. The constitutional question (one that was briefed after the court requested supplemental briefing on this issue) is whether the Constitution requires that noncitizens subject to mandatory detention and detained for longer than six months be afforded a bond hearing.

The outcome in Jennings matters not only to the rule of law but to thousands of immigrants held in detention. Each year, more than 350,000 are placed into civil immigration detention centers, which in practical terms are state or local jails or facilities that look like them. The government has published Performance Based National Detention Standards to guide how detainees should be treated with regard to medical care, legal access and other services. These standards are critical in part because detained immigrants are not guaranteed court-appointed counsel, a right to a speedy trial or other related protections available in the criminal justice system. However, some reports suggest that these standards are often ignored.

It is uncertain how the Supreme Court will decide Jennings, but it should follow the 9th Circuit, which held that “the government must provide periodic bond hearings every six months so that non-citizens may challenge their detention ‘as the period of … confinement grows.’” The 9th Circuit decision should be a guide to the Supreme Court, because it is well reasoned, and it captures the history of how courts have handled and considered fundamental legal questions in the space of immigration detention.

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Menu of today’s content

Menu of today’s contentToday we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link. Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic […]

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Menu of today’s content

Today we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link.

Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic Draye, Austin Sarat, Brian Stull and Brianne Gorod. These and future contributions are available at this link.

Additionally, this morning Amy Howe covered the court’s final orders of the term, and Steve Vladeck analyzed the court’s opinion in Davila v. Davis.

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Death-penalty symposium: Even with this conservative court, some progressive wins remain possible

Death-penalty symposium: Even with this conservative court, some progressive wins remain possibleBrianne Gorod is Chief Counsel at the Constitutional Accountability Center. She filed an amicus brief in support of defendant Duane Buck in Buck v. Davis. With the election of Donald Trump as president and the addition of his Supreme Court nominee Justice Neil Gorsuch to the bench, there’s no question: The conservative court is back. […]

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Death-penalty symposium: Even with this conservative court, some progressive wins remain possible

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She filed an amicus brief in support of defendant Duane Buck in Buck v. Davis.

With the election of Donald Trump as president and the addition of his Supreme Court nominee Justice Neil Gorsuch to the bench, there’s no question: The conservative court is back. But even with this very conservative Supreme Court, there can still occasionally be progressive victories, at least for now. This year’s death penalty cases provide a key example: There were a number of progressive wins, but only by the narrowest of margins. In this area, as in so many others, Justice Anthony Kennedy’s vote is often key.

One of the most high-profile of this year’s death penalty cases came early in the term in Buck v. Davis, an important case about the role of race in our criminal justice system. In Texas, a person may be sentenced to death only if a jury concludes that he or she is likely to commit violent acts in the future that would constitute a continuing threat to society, and at Duane Buck’s sentencing hearing, the key question was whether Buck was likely to do so. Stunningly, Buck’s own attorney called a purported expert witness, who testified that Buck was more likely to be violent in the future because he is black, and the jury sentenced Buck to death.

The procedural history in Buck is complicated, and the question before the court was exceedingly technical, but the court took the opportunity the case presented to make an important statement about the role that race can play in our criminal justice system. As my organization explained in an amicus brief, the testimony elicited by Buck’s counsel evoked an “enduring racial stereotype that exerts a unique power in this nation,” one that can have a “[d]emonstrable [e]ffect on [p]erceptions and [j]udgments.” The court agreed, concluding that the so-called expert’s “testimony appealed to a powerful racial stereotype,” resulting in “something of a perfect storm. [The expert’s] opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.”

The presentation of this evidence thus ran headlong into our constitutional commitment to “eradicating [racial] stereotypes from the administration of justice and ensuring that jury proceedings are free of racial bias and prejudice.” As Chief Justice John Roberts wrote for the court, the possibility that “Buck may have been sentenced to death in part because of his race” is a “disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.” (A majority of the court reaffirmed that commitment later this term in a non-capital case involving racial bias in jury deliberations. Writing for the court in Pena-Rodriguez v. Colorado, Justice Anthony Kennedy observed that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” Roberts dissented in that case.)

Buck wasn’t the only case this term in which the Supreme Court reversed a lower court decision in an effort to introduce additional fairness into the way the death penalty is applied. In Moore v. Texas, for example, the question before the court was whether it violates the Eighth Amendment’s prohibition on cruel and unusual punishment to “prohibit the use of current medical standards on intellectual disability … in determining whether an individual may be executed.” In that case, a state habeas court had ruled that Bobby Moore could not be sentenced to death because he was intellectually disabled, but the Texas Court of Criminal Appeals concluded that the habeas court had “erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in [a prior case].”

The Supreme Court, 5-3, reversed, reaffirming its 2014 decision in Hall v. Florida that “adjudications of intellectual disability should be ‘informed by the views of medical experts.’” As the court explained, the guidelines established by the CCA “‘creat[ed] an unacceptable risk that persons with intellectual disability will be executed.’” Emphasizing that states do not enjoy unlimited discretion to determine who qualifies as intellectually disabled, the court rejected the CCA’s objective of “identifying the ‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty’”: “Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities … and States may not execute anyone in ‘the entire category of [intellectually disabled] offenders.’”

In McWilliams v. Dunn, the court, 5-4, concluded that the defendant had been denied assistance in presenting his defense – assistance to which he was entitled under a prior decision of the court. As Justice Stephen Breyer, explained: “Our decision in Ake v. Oklahoma … clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense.’” According to the court, Alabama fell “dramatically short” of this requirement because, although a doctor examined James McWilliams, no one was asked “to provide the defense with help in evaluating, preparing, and presenting its case.” Although this wasn’t a total win for McWilliams – the court didn’t go as far as McWilliams had asked it to go, declining to decide whether “a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties,” and the court also left the door open for the U.S. Court of Appeals for the 11th Circuit to reach the same ultimate conclusion on remand – it was nonetheless a win.

To be sure, it was hardly all progressive wins on the death-penalty front. In Davila v. Davis, the court, 5-4, held that ineffective assistance of counsel in state postconviction proceedings does not excuse a defendant’s failure to bring a claim that his counsel was ineffective on direct appeal, and thus a federal habeas court may not hear such a claim. In reaching this result, the court declined to extend an earlier 7-2 decision in which it held that ineffective assistance of counsel would excuse procedural default when the claim was that trial counsel was ineffective. As Justice Stephen Breyer wrote in dissent, there was no reason to treat those two situations differently: “[W]hat is sauce for the goose is sauce for the gander.” And outside the court’s merits docket, the court made news this term when it allowed Arkansas to execute a number of individuals as part of the state’s effort to execute eight people over an 11-day period before one of the drugs it uses in its lethal injection protocol expired.

Looking at all of these cases as a group, two things stand out. First, as I noted at the outset, these cases make clear that even with this very conservative court, some victories are possible for those who oppose the death penalty, or are simply concerned about the fairness of its application. To be sure, counting to five is much easier in some contexts than in others. A win for the criminal defendant is more likely in cases involving allegations of unfairness in the initial trial or sentencing, and it is more likely when it involves a categorical claim that the death penalty cannot be applied to a particular group of people. A win is less likely in cases involving allegations of unfairness in later stages of the proceedings, or allegations that the manner in which the sentence is being carried out is problematic. But there are still a number of contexts in which wins are possible, at least for now.

Second, and related to that last point, these cases are all exceedingly closely divided. Other than Buck, all of the court’s merits death penalty cases this term were either 5-4 or 5-3 decisions. In two of the three, Kennedy voted with the court’s more liberal members, and the defendant won; in one he did not, and the defendant lost. The Court’s newest member, Gorsuch, voted against the criminal defendant in both of the cases in which he participated. Thus, in this area – as in so many others – it seems that Kennedy’s vote will often be key.

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: “[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

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Death-penalty symposium: The court keeps treating a fatally diseased death penalty

Death-penalty symposium: The court keeps treating a fatally diseased death penaltyBrian Stull is a senior staff attorney with the Capital Punishment Project of the American Civil Liberties Union. He filed an amicus brief in support of Bobby Moore in Moore v. Texas. As Justice Stephen Breyer forecasted two terms ago in Glossip v. Gross, the Supreme Court has continued its project of “patch[ing] up the […]

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Death-penalty symposium: The court keeps treating a fatally diseased death penalty

Brian Stull is a senior staff attorney with the Capital Punishment Project of the American Civil Liberties Union. He filed an amicus brief in support of Bobby Moore in Moore v. Texas.

As Justice Stephen Breyer forecasted two terms ago in Glossip v. Gross, the Supreme Court has continued its project of “patch[ing] up the death penalty’s legal wounds one at a time.” This term, it granted relief in three death-penalty cases, two from the nation’s leading executioner, Texas, and one from the leader in death-row prisoners per capita, Alabama. And it denied relief in a third Texas case (Davila v. Davis). As these cases show, the states’ applications of the death penalty have exposed individuals to execution who should have been protected because of their intellectual disability (Moore v. Texas), who were denied access to adequate tools of the defense (McWilliams v. Dunn), and whose verdicts were infected by racial prejudice (Buck v. Davis). The decisions granting relief are to be celebrated, but they address only the symptoms, not the underlying problem, recognized more than 40 years ago in Furman v. Georgia: Administration of the death penalty is inescapably arbitrary.

Intellectual disability

In Moore, the court did what Texas advocates and developmental-disability advocates had long asked: It struck Texas’ Briseno factors – used to exclude intellectually-disabled prisoners from the Eighth Amendment protection against execution, and named for State v. Briseno, in which Texas’ high criminal court relied for its idiosyncratic definition of mental disability not on current medical science, but on the character Lennie in Of Mice and Men. But the court did much more than that. It rejected other non-scientific factors often employed to deny claims of intellectual disability under Atkins v. Virginia, and reaffirmed that science, not stereotypes, should govern.

A diagnosis of intellectual disability requires three things: 1) significantly subaverarge intellectual functioning (typically measured by an IQ score roughly two standard deviations below the mean); 2) adaptive-functioning deficits; and 3) an onset during childhood, before reaching 18. As the court recognized three years ago in Hall v. Florida, intellectual disability is a condition, not an IQ score, and proper diagnosis thus places great emphasis on the second requirement, related to adaptive functioning.

But before the ink of the 2002 Atkins decision had dried, junk-scientific practices – unrelated to determinations of intellectual disability in other contexts – sprang up across death-penalty states. Before Hall, prosecution experts routinely discounted claims if the defendant had even a single IQ score that fell above a hard cutoff of 70, despite the countervailing views of the medical community. When considering adaptive deficits, many state experts similarly improperly sought to exclude defendants who had any areas of strength and contended, without medical support, that a single area of strength outweighed the individual’s otherwise qualifying deficits in other areas. In some cases, state experts created “strengths” by pointing to performance in institutional (non-community) settings, such as prison, a wholly inappropriate analysis, or argued that deficits possibly caused by mental illness (think schizophrenia rather than intellectual problems) should not count. The prosecution relied on these tactics to argue for the execution of prisoners who would otherwise be deemed intellectually disabled and courts, both in and out of Texas, adopted the prosecutors’ arguments all too often.

In Moore, the court found an opportunity not only to strike down the Lennie-based Briseno factors, but to condemn all of the above practices. Writing for the court, and applying Hall’s directive to look strictly to medical standards for determining intellectual disability, Justice Ruth Bader Ginsburg identified and rejected each of the state’s improper practices as contrary to sound medical judgment. Her opinion should settle many of the current arguments in pending Atkins claims, and help to restore the protection Atkins was meant to provide in the first instance.

Race and the death penalty

For law professors teaching federal habeas-corpus litigation, the procedural posture of Buck reads like a messy issue spotter. To prevail, Texas death-row prisoner Duane Buck had to thread the needle of several doctrines, showing that: (1) A federal district court incorrectly denied his motion, under Federal Rule of Procedure 60(b)(6), to reopen his (previously unsuccessful) federal habeas petition attacking his Texas death sentence; and (2) the U.S. Court of Appeals for the 5th Circuit erroneously denied him a certificate of appealability (3) based on recent Supreme Court decisions that would excuse a prisoner’s procedural default in failing to raise trial counsel’s constitutionally ineffective assistance in state post-conviction review when (4) state post-conviction counsel were themselves ineffective in failing to raise trial counsel’s ineffectiveness.

But the heart of the case was always race and the death penalty. Duane Buck’s death sentence was not based only on the circumstances of his crime and life, but on his skin color as a Black man. An expert in his case, Dr. Walter Quijano, predicted that Buck could pose a threat of future violence if not executed because African-Americans are more likely to commit violent crimes.

Texas had conceded constitutional error in the five other death-penalty cases tainted by similar testimony from Quijano. But Texas sought to defend Buck’s death sentence on the ground that in his case it was defense counsel who introduced Quijano’s noxious testimony (even though the state prosecutor then emphasized this testimony in summation). Writing for the court, Chief Justice John Roberts saw no distinction, holding that Buck’s race was improperly “put to the jury” as a basis for sentencing him to death.

The chief justice wrote, “Our law punishes people for what they do, not who they are.” With that, threading the needle was simple. Trial defense counsel was constitutionally ineffective for presenting Quijano’s pernicious and prejudicial testimony. The district court should have permitted Buck to reopen his federal habeas petition, and the 5th Circuit erred by denying him a certificate of appealability. And, under the court’s (then new) precedent in Trevino v. Thaler, Buck should have been permitted to reopen his case in order to argue that his procedural default of the trial ineffectiveness claim (in his first state post-conviction litigation) was caused by post-conviction counsel’s ineffective failure to argue that trial counsel had been ineffective in presenting Quijano in the first instance. Only woefully unprepared post-conviction counsel could have missed this claim.

Three decades ago, in McCleskey v. Kemp, the court rejected constitutional challenges to the death penalty based on statistical analysis showing the race of the victim to be a substantial factor in determining which guilty offenders in Georgia are sentenced to death. Between then and now, this study has been replicated in many states, while Black and Latino Texas prisoners were being sentenced to death based on Quijano’s pernicious claims, and, as the court found last term in Foster v. Chatman, while Black jurors were being excluded from death-penalty trials based on racial discrimination. Because the death penalty is a direct descendant of lynching, the taint of racial discrimination is endemic. And the Supreme Court will continue to be called upon to cure the incurable.

That gets us closer to the larger problem this term’s cases reflect. The death penalty cannot be healed. McWilliams and Davila yet again show the inadequate representation many poor people facing execution receive – McWilliams at the trial level, where the defendant was denied an appointed mental-health expert to aid in his defense, and Davila at the critical level of direct appeals. The court granted relief in McWilliams. But it denied relief in Davila – not because appellate counsel was constitutionally effective – but because, in a 5-4 vote, it decided that a procedurally defaulted claim of ineffective assistance of appellate counsel could not be excused, and thereby considered in federal habeas review, due to ineffective post-conviction counsel’s failure to raise the claim. As both cases illustrate, across capital death-penalty jurisdictions, ineffective lawyers for the accused have long plagued the proceedings at multiple stages: at trial, on direct appeal, and in state post-conviction review.

Numerically, most problematic cases have come from an earlier era. Two of the prisoners who prevailed this term were sentenced to death before 1990 (Moore in 1980 and McWilliams in 1986) and one before 2000 (Buck in 1997). Nationally, prosecutors won 173, 301 and 265 death sentences per year in those three years.

Of the nearly 3,000 prisoners remaining on American death rows, most come from that earlier era – a large fraction from Texas. If the court were to look at those cases up close, as it has with the cases this term, it would likely find the same problems of ineffective assistance, racial bias and improper denials of Atkins claims.

Even though the same errors persist today, and new ones have arisen, we have generally moved away from executions, imposing only 30 new death sentences nationwide in 2016. But a handful of states still push towards executions. They line up for the gurney increasingly geriatric prisoners, condemned in the earlier era – including the four defendants Arkansas rushed to execute this spring as a lethal-injection drug was expiring. The more these old cases come to the court’s attention in coming terms, the more likely the court will be to realize it can no longer content itself with treating only the symptoms without confronting the larger problem.

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Inmate confesses to strangling other prisoners in failed plot to land on death row

COLUMBIA, S.C. — One by one, Denver Simmons recalled, he and his partner lured inmates into his cell. William Scruggs was promised cookies in exchange for doing some laundry; Jimmy Ham thought he was coming to snort some crushed pills. Over the course of about a half-hour, four men accepted Simmons’ hospitality. None of them…

COLUMBIA, S.C. — One by one, Denver Simmons recalled, he and his partner lured inmates into his cell. William Scruggs was promised cookies in exchange for doing some laundry; Jimmy Ham thought he was coming to snort some crushed pills. Over the course of about a half-hour, four men accepted Simmons’ hospitality. None of them...

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Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment

Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishmentAustin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College. The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new […]

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Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College.

The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new Supreme Court justice, and they failed yet again to get the court to take up a wholesale challenge to capital punishment. Through it all, Justice Stephen Breyer persisted in making the case that the death penalty violates the Eighth Amendment and “the evolving standards of decency that mark the progress of a maturing society.” His efforts had no greater payoff during the 2016 term than they have had in the past, but they helped to memorialize the many miscarriages of justice associated with the death penalty’s continued use and lay the groundwork for a future court to end capital punishment.

He made those efforts during a time of a gradual withering of America’s death penalty. This withering is evidenced by the fact that fewer and fewer death sentences are being imposed in fewer and fewer places across the country. At the same time, similar trends are occurring with regard to actual executions. Moreover, while a majority of the American public continues to support the death penalty, the number of people favoring it is lower than it has been since the 1970s.

But, during the last year, these developments were counterbalanced on several fronts. The hope for continued restraint in the pursuit of federal death-penalty cases, and for the appointment of a Supreme Court justice sympathetic to the anti-death-penalty cause, was dashed by the election of President Donald Trump, an avid supporter of capital punishment, and by Trump’s appointment of Jeff Sessions as attorney general of the United States. So vehement is Sessions’ support for the death penalty that, during his tenure as Alabama’s attorney general, he “worked to execute insane, mentally ill and intellectually disabled people, among others, who were convicted in trials riddled with instances of prosecutorial misconduct, racial discrimination and grossly inadequate defense lawyering.”

In addition, voters in California, Oklahoma and Nebraska supported the death penalty in several different referenda.

And, earlier this year, Arkansas drew international attention when it unveiled a plan to execute eight death-row inmates in 11 days.

While all this was going on, the Supreme Court was in a holding pattern on capital punishment. It addressed some unusual problems in ways that only served to prop up a failing system. And it declined to hear more direct challenges to the constitutionality of the ultimate penalty.

In three of its death cases, the court found for defendants seeking relief from blatant miscarriages of justice. So egregious were those problems that, in one case, even reliably pro-death-penalty Chief Justice John Roberts sided with its critics. Writing, for a six-justice majority, he said that a defendant was denied effective assistance of counsel when his own lawyer presented an expert who testified that he was more likely to be dangerous in the future because he is black. Roberts put it simply when he noted that “[n]o competent defense attorney would introduce such evidence about his own client.”

One month after this decision, the Supreme Court struck down Texas’ standard for evaluating intellectual disability in death-penalty cases. Here again the particulars of the case were so striking that Justice Ruth Bader Ginsburg’s majority opinion labelled the Texas situation an “outlier.” She held that “[b]y design and in operation, … [it] create[s] an unacceptable risk that persons with intellectual disability will be executed.”

Last week, a closely divided court ruled that an Alabama man had been unconstitutionally denied the assistance of a mental-health expert in evaluating, preparing and presenting his defense. Justice Neil Gorsuch, in his first vote on the merits in a death-penalty case, did not disappoint those who pushed for his appointment. He joined a dissent written by Justice Samuel Alito, which argued that an indigent defendant whose mental health will be a significant factor at trial is not “entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.”

Throughout the term, the court repeatedly refused to take up cases raising problems that go to the heart of the death penalty itself. In a series of dissents in those cases, Breyer continued the work started in his dissenting opinion in Glossip v. Gross, repeatedly pointing out systemic and crippling problems in the administration of capital punishment.

Echoing Justice Harry Blackmun’s famous announcement “I no longer shall tinker with the machinery of death,” Breyer said in Glossip that “rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” Given the “circumstances and the evidence of the death penalty’s application,” he urged the court to “reopen” that basic question. Breyer called attention to what he labelled “three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

This term, the Supreme Court denied certiorari in a case that asked it to decide “(w)hether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”

The petitioner in that case, Marcus Reed, argued:

Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. The declining numbers of death sentences and executions has not ensured that capital punishment is applied more carefully but rather enhanced the “not altogether satisfactory” application of the punishment.

Breyer filed a brief dissent in which he picked up a theme from Glossip. He noted that “[t]he “arbitrary role that geography plays in the imposition of the death penalty, along with the other serious problems I have previously described, has led me to conclude that the Court should consider the basic question of the death penalty’s constitutionality.”

In another case, Sireci v. Florida, the court refused to consider the Eighth Amendment claim of a man who has been on Florida’s death row for 40 years. Breyer dissented, noting that “delays of this kind have become more common.” He called execution after such an extended time on death row “especially cruel and unusual.”

Justice Breyer returned to this theme when he dissented yet again from a denial of certiorari, this time in the case of Rolando Ruiz, who was confined on death row for 22 years, 20 of them in solitary confinement. Ruiz claimed that his permanent solitary confinement on death row violated the Eighth Amendment, and Breyer agreed. Breyer noted the “terrible ‘human toll’ [that] is ‘wrought by extended terms of isolation.’” That toll is compounded, he claimed, by “a prisoner’s uncertainty before execution … ‘one of the most horrible feelings to which he can be subjected.’”

This term’s death-penalty opinions suggest that Breyer is intent on assuming the mantle of former Justices William Brennan and Harry Blackmun. Like them, he courageously and correctly took every opportunity to call the court’s, as well as the nation’s, attention to the day-to-day realities of our broken death-penalty system and to the ways those realities damage America’s commitments to due process, equal treatment and respect for the dignity of all of its citizens.

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Missing Person of the Week: Toby Ray Coleman

Each week True Crime Diva highlights a missing persons case that has little or no information available regarding the circumstances of disappearance.   Toby Ray Coleman, 18, was last seen by his mother at their home in New Caney, Texas on May 19, 1997. Earlier in the night, Toby attended a party at Bills 3GS Trailer … Continue reading “Missing Person of the Week: Toby Ray Coleman”

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Each week True Crime Diva highlights a missing persons case that has little or no information available regarding the circumstances of disappearance.   Toby Ray Coleman, 18, was last seen by his mother at their home in New Caney, Texas on May 19, 1997. Earlier in the night, Toby attended a party at Bills 3GS Trailer … Continue reading "Missing Person of the Week: Toby Ray Coleman"

The post Missing Person of the Week: Toby Ray Coleman appeared first on True Crime Diva.

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Death penalty symposium: Evolving standards for “evolving standards”

Death penalty symposium: Evolving standards for “evolving standards”Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas. In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction […]

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Death penalty symposium: Evolving standards for “evolving standards”

Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas.

In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction under the Eighth Amendment’s ban on cruel and unusual punishment launched the current chapter in Eighth Amendment jurisprudence: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

As always, the wake is wider than the vessel. For decades, the Supreme Court and courts around the country have labored to identify the “evolving standards of decency” that classify one punishment as cruel and unusual while permitting another. This project is necessarily vexing, as the standards themselves are defined by their evolution – at least until the Supreme Court acknowledges a standard and thereby prevents any social reconsideration. Moreover, assuming that the amendment’s meaning should change over time, the Constitution does not identify reference points by which courts might gauge society’s standards of decency.

Although the Supreme Court’s decision this term in Moore v. Texas purported to explain how states should determine a person’s intellectual capacity, the real action was just beneath the surface, where the court changed its benchmark for measuring society’s standards. In Moore, the court looked nearly exclusively to the opinions of professional organizations like the American Psychological Association to determine what now transgresses the Eighth Amendment. This deference to professional groups completes a 15-year arc of slowly turning away from the states and their enacted legislation as the gold standard for gauging society’s views. Now the court’s standard for determining society’s standards appears to be the latest guidance for clinicians and medical professionals.

The road from Atkins

The Supreme Court first announced an Eighth Amendment bar to executing persons with diminished mental capacity in Atkins v. Virginia. There, the court described state laws as “the clearest and most reliable objective evidence of contemporary values.” Looking to this standard, the court counted 18 states that had abolished the death penalty for “mentally retarded” persons during the decade and a half following a controversial execution in Georgia in 1986. In addition, the court found evidence of a consensus in the infrequency with which states permitting such executions actually carried them out. The views of professional associations appeared only in a footnote, which they shared with the entreaties of religious leaders, the laws of the European Union, and public opinion polls.

Mental-health professionals ascended from the footnotes to the body of the opinion in Hall v. Florida, and their bearing on the court’s analysis increased correspondingly. Hall, decided 12 years after Atkins, challenged the method by which Florida used IQ tests to determine which convicted killers have an intellectual disability. The five-justice majority explained that enforcing a hard IQ cutoff was inconsistent with the holding in Atkins because mental-health professionals consider a person’s actual IQ to fall within a range around the test score. While relying heavily on mental-health expertise, the court nevertheless couched its analysis in terms of “better understanding … how the legislative policies of various States, and the holdings of state courts, implement the Atkins rule.” The court also returned to counting states, reasoning that 41 states would not deem someone with an IQ score of 71 “automatically eligible for the death penalty.”

But, as the Hall dissent pointed out, the tally here is less clean than in Atkins. The majority’s claim to 41 states rests not on an additive process as in Atkins, but on subtracting nine states that affirmatively shared Florida’s approach from the total of 50. This conclusion only makes sense if the states face a binary choice for how to interpret IQ scores, which is not the case. The dissent therefore parsed the states more finely: Nineteen do not have the death penalty and therefore cannot contribute to a national consensus on interpreting IQ tests for Atkins purposes; 10 do not require the standard-deviation method at issue in Hall; 12 consider that method in some manner; and nine have taken no position. Perhaps in response to this rebuke, the Hall majority ended its survey of states with the defensive note that “Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.” Thus, although Hall continued the work of counting states and attempted to tether the court’s regard for the views of the APA to the task of “better understanding” what the states have done, the reasoning suggests far less reliance on state law and far more on the opinion of experts. Justice Samuel Alito highlighted this shift in dissent, noting that “prior cases” looked to “the standards of American society as a whole,” whereas the Hall majority turned to “the evolving standards of professional societies.”

By this term’s decision in Moore, state legislatures receive only one mention: a stray observation that none of them has codified the factors for determining mental capacity on which the Texas Court of Criminal Appeals relied. The court did nothing to address a 16-state amicus brief arguing that the petitioner’s request was inconsistent with the consensus on display in state laws. Although the court in Moore offered assurances that states need not adhere to “the latest medical guide,” the absence of any alternative yardstick for assessing society’s standards of decency belies that guarantee. Unsurprisingly, the dissent seized on the court’s failure to consider “the state practices that were, three Terms ago [in Hall], ‘essential’ to the Eighth Amendment question.”

Pros and cons of technocracy

The question presented in Atkins – whether the Eighth Amendment prohibits execution of the intellectually disabled – is a legal issue. Its necessary corollary – who is intellectually disabled – is not purely legal. Because judges are capable of answering legal questions themselves but have little proficiency in identifying which individuals are of such limited mental capacity that they cannot tell right from wrong, an appeal to mental-health professionals for expert guidance is intuitive. Neither Texas nor the amici states in Moore suggested that scientific expertise is unimportant. To the contrary, they would be happy to see all the evidence the APA can muster presented to legislatures across the country. In that setting, lawmakers can weigh competing studies and consider the views of dissenting psychologists, whose opinions are omitted from the final pronouncement by their association.

The disagreement in Moore, therefore, is less about whether experts have a role than about where in the process they should play out that role. As the dissent pointed out, experts are far from univocal. Even on the specific question in Moore – whether “adaptive deficits” must be related to intellectual function – the two leading professional associations disagree. Deciding which opinion to follow is a task better suited to the legislative process than to the judiciary.

Finally, the pivot from tallying states to enshrining the APA’s view as the law of the land solves very little. Academics and practitioners are not themselves unanimous. Thus the court may simply be replacing a process of counting states with one of counting psychologists. Moreover, experts, no less than state legislators, have policy preferences, including non-scientific opinions on the desirability of the death penalty. One need not be a professional psychologist to understand that these preferences will influence a person’s opinion on where to draw the line between individuals who are eligible for a death sentence and those who are not. Above all, mental-health experts routinely reconsider earlier positions. To the extent the court cements their current thinking in precedent, it prevents the very evolution that it claims to serve.

On the other hand, if Hall and Moore simply require reference to current scholarship, then they might allow more reconsideration than Atkins, which takes state legislatures as its reference point. Legislatures, after all, are bound by the court’s decisions and cannot, even if they would like to, return to a formerly prevailing view. This consequence for state legislatures formed the backbone of Justice Clarence Thomas’s dissent in Graham v. Florida, in which he lamented that the effect of judicial decisions is to allow evolution in just “one direction.” But Supreme Court precedent is no bar to clinicians and scholars reconsidering the standard for mental deficiency. Researchers are free to advocate a return to the definition of intellectual disability in earlier editions of the APA’s Diagnostic and Statistical Manual. In this way, their ascent into the role of societal bellwether actually promises more flexibility than reliance on the law-bound states. Whether that flexibility will ultimately track the views of broader society is an open question.

The Supreme Court will surely have future opportunities to reconsider Moore and the trend to which it belongs. As soon as professional associations revise their thinking in a manner that would expand the boundaries of intellectual disability, death-row inmates who would benefit from the new guidelines will immediately raise Eighth Amendment claims. Any of those cases could afford the court an opportunity to return to using the states as the “clearest and most reliable” indicators of society’s standard of decency.

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