It has certainly been a momentous week of Supreme Court decisions, and in the massive excitement about upholding the Affordable Care Act and legalizing same-sex marriage, the mixed news in the criminal justice field may have received short shrift. Two overall trends can be noticed: the first was a noticeable signal of openness from the Court to the issue of prison conditions, which was particularly surprising given that the cases did not involve inmate rights directly. And the second was an antiquated clinging to the farcical rationale for the death penalty while encouraging the continuing quibble about the details.“Two overall trends can be noticed: the first was a noticeable signal of openness from the Court to the issue of prison conditions, which was particularly surprising given that the cases did not involve inmate rights directly. And the second was an antiquated clinging to the farcical rationale for the death penalty while encouraging the continuing quibble about the details.” — Hadar Aviram
On Thursday, the Court decided Davis v. Ayala, in which the court examined a voir dire process in which the prosecution disqualified several jurors of color. Finding that the prosecutor provided “race-neutral” explanations for these peremptory challenges , the Court argued that, if there had been an error in jury selection, it was harmless. But what was interesting was Justice Kennedy who, in his concurrence, drew public attention to a “small” side issue: while the conversation turned around the technicalities of a procedure that happened twenty-five years ago, the actual inmate has spent those twenty-five years in solitary confinement. “Too often”, wrote Justice Kennedy, “discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.” and after citing numerous scholarly articles about the horrors of solitary confinement, he threw the following hint: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
“Too often the discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind.”– Justice Anthony Kennedy
Interestingly, Ayala followed Monday’s decision in Kingsley v. Hendrickson, a case involving violence toward a pretrial detainee. Pretrial detention, of course, isn’t “punishment”, and one of the ways in which the state avoids accountability for the way it treats people is by arguing that their situation does not count as “punishment”. Indeed, the Supreme Court has routinely decided that many situations don’t count as “punishment”, and therefore do not merit an intervention, no matter how cruel and unusual the state’s behavior might be. But while the Eighth Amendment does not apply to pretrial detention, the Fourteenth Amendment does, and the Court found, 5-4, that the appropriate test for use of force against detainees is whether a reasonable police officer would deem the conduct appropriate. This standard was favorable to Kingsley, and is much better for detainees in general than a subjective test of intent on the part of the particular officers. But what was even more interesting was that, again, the court provided us with a clue about its openness to hear prison condition cases, this time from Justice Breyer: “We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.” Should the objective standard be applied to convicted prisoners, and not only to detainees, it will mark a more thorough and attentive judicial review of prison conditions.
As a final nugget in this series, the Court’s decision in Johnson v. U.S. on Friday found that the definition of “violent offense” in the Armed Criminal Career Act was too vague to satisfy constitutional standards. In this case, Johnson, a decidedly unsympathetic inmate (a white supremacist with plans similar to those that Dylann Roof put in action so horribly last week), argued that his conviction for possession of a sawed-off shotgun was not, in itself, a “violent offense.” The Justices agreed, 8-1, that the reliance on “risk” in the definition of violence has led to difficult questions of interpretation. The decision seems to signal a loss of judicial appetite for sentencing enhancements and risk-based punishment. And, as a special treat, one of Justice Scalia’s examples of vagueness was an offense of prison rioting, which, as he argues, does not necessarily satisfy the requirements for “violent offense”.
While the actual benefits received by inmates in these cases were mixed, the combination of side commentaries may bode well for future prison litigation, particularly for upcoming
The news on the death penalty front were less encouraging. One case was won, and one was lost, but both were decided in a way that allows the machinery of death to live to kill another day. Ever since Gregg v. Georgia brought executions back into circulation, the litigation around them has focused on technicalities and loopholes, all designed to maintain the farce that the death penalty maintains its constitutionality and worth while quibbling over the details.
“The news on the death penalty front were less encouraging. One case was won, and one was lost, but both were decided in a way that allows the machinery of death to live to kill another day.”– Hadar Aviram
The first one was Brumfield v. Cain, in which the Court decided, in a 5-4 split, that a Louisiana death row inmate deserved an opportunity to prove intellectual disability that would spare his life. Brumfield had been sentenced to death before Atkins v. Virginia, which disallowed the execution of mentally disabled inmates, and the state relied on his original sentencing record to find that his mental capabilities were not a source of concern in this regard. The court disagreed, finding that Brumfield’s estimated IQ of 75 could, within the margin of error expected of such tests, be consistent with a mental disability. Moreover, contrary to the decision that denied Brumfield’s petition, the evidence he presented at the original sentencing hearing suggested significant impairments in several areas of adaptive skills, including language and learning. Not that Brumfield had to positively prove any of these things; all he had to do was show reasonable doubt that they might be true. And given the indications in the original record, he would probably have had a much better chance to prove his disability in a full hearing.
Even assuming that there is some logic in the distinction between killing people with standard and substandard intelligence, and with the utmost understanding of the victims’ families suffering and rage–are we served, as a whole, by the clinging to dogmatic criteria in identifying who is fit to kill and who is not? Suppose Brumfield’s IQ had been 80, not 75–would that really make us more comfortable killing him? Suppose Brumfield’s IQ had been 70, not 75–would that have made the victim’s family’s loss easier to bear? Moreover, while I’m sure that, for some victims, the prospect of the death penalty provides some closure, I can think of nothing more demeaning and tiresome for many victims than the need to suffer through decades-long legal quibbles about the minutiae of their loved one’s murderer’s mental capabilities. The number of executions, even in Louisiana, is in decline. In the last twenty years, they consist of seven executions, the last one in 2010 and the one before that in 2002. Is it really worthwhile to continue tinkering with the machinery of death this way, rather than send convicted murderers, particularly those who might recidivate, to long prison sentences?
The other case that aimed to tinker with the machinery of death fared differently, but affirmed this grim prospect. In Glossip v. Gross, a 5-4 split court approved the new killing protocol from Oklahoma, which features Midazolam as a replacement for Sodium Thiopental. This morning’s decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method. The short history of this case is instructive: after the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce–partly because European countries, disgusted with our retention of the death penalty, stopped exporting it. As a solution to the problem of not being able to kill people, Oklahoma has introduced Midazolam, and the decision is rife with jabs at “abolitionists” who, in their stubbornness, complain about the executioner’s ax but don’t offer to wrap it in silk and velvet for everyone’s moral comfort.
“[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.” — Justice Stephen Breyer
Justice Breyer, of course, is keenly aware of how nonsensical this is. Like a modern-day Blackmun, “[r]ather than try to patch up the death penalty’s legal wounds one at a time,” he states, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
The death penalty’s devil is not in the details; it’s in the very fact of its existence. If anything, the endless quibble about the details, regardless of who comes out the victor at any round, obfuscates the real debate. Whether a particular inmate satisfies the bizarre conditions we have set to satisfy ourselves that we are “ethically” killing people, or a particular new method to kill them finds its way home through the byzantine legal maze of morals and misunderstood science, is beside the point. This week’s decisions allow the machinery of death to live to kill another day, and they have strengthened my conclusion that the death penalty–much like the inmates at San Quentin–will not be executed, but rather die slowly of a chronic disease.
