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Death penalty

Most Americans favor death penalty, but numbers are falling

The majority of Americans – 61 percent – favor the death penalty, according to a new Gallup poll. But that percentage is down from past years.

In fact, the percentage is the lowest since 1972, the year the Supreme Court voided all existing state death penalty laws in Furman v. Georgia.

Just last year, 64 percent of polled Americans voiced support for capital punishment. In 1994, support for the death penalty was at 80 percent, which was the highest level since Gallup began polling on the issue in 1936.

According to the latest poll, 35 percent of Americans oppose the death penalty. In 1994, only 16 percent of Americans opposed it.

Supreme Court grants death row inmate third stay

For the second time in as many weeks, the U.S. Supreme Court has stayed the execution of a Texas inmate.

Just days after halting the execution of Duane Edward Buck just hours before he was to be executed, the Court yesterday once again granted  stay in the case of Cleve Foster, who was sentenced for a the rape and murder of a woman he met in a bar. Buck claims he received ineffective representation from his attorney.

This is the third time the Court granted a stay in Foster’s case, according to the Wall Street Journal’s Law Blog. “Three stays in one year by the Supreme Court is extraordinary,” University of Texas Law School professor Maurie Levin, who represents Foster on appeal, told the Law Blog.

In its brief, the Texas Attorney General’s Office called Foster’s claim “frivolous.”

Supreme Court grants 11th hour execution stay

Just before Duane Edward Buck was set to be executed in Texas Thursday night for a double murder, the U.S. Supreme Court granted a stay of execution while the justice decide whether to take up his case.

Justice Antonin Scalia granted the order on the Court’s behalf, the Wall Street Journal’s Law Blog reported. Buck claims that testimony during the sentencing phase of his trial that he is likely to be more violent because he is black impacted his sentence.

Buck had already eaten his last meal when the stay order was issued.

Supremes halt 2 executions over ineffective assistance claims (access required)

The Supreme Court granted two stays of execution this week, both on claims that the inmates’ attorneys performed ineffectively.

On Monday night the Court issued an order granting a stay at Arizona inmate Daniel Wayne Cook on his claim that his lawyers failed to offer evidence of his troubled childhood and resulting mental illness during his sentencing hearing, reports SCOTUSblog’s Lyle Denniston. The order came one day before Cook was to be put to death for killing two coworkers.

In Texas, Cleve Foster was granted a stay by the Court Tuesday, just hours before he was scheduled to be executed for killing a woman he met in a Fort Worth bar. He claims his lawyer failed to call a blood evidence expert to support his innocence claim.

Court grants Ashcroft review, denies bids by prisoners and reporters (access required)

The U.S. Supreme Court added just one case to its docket yesterday: Ashcroft v. al-Kidd, an appeal by former Attorney General John Ashcroft, will determine whether Ashcroft is immune from a civil suit by a U.S. citizen who claims he was illegally detained as a terrorist.

As is often the case when the Court grants only one cert. petition, more headlines were made over what the Court did not do yesterday.

For example, the Court declined to take up Pitre v. Cain, the appeal of a prisoner who claimed he was punished with hard labor in 100-degree heat for refusing to take his HIV medication. A district court rejected the prisoner’s Eighth Amendment claim, reasoning that he had brought the matter on himself for not taking the drugs.

But Justice Sonia Sotomayor, in a written dissent, opposed the denial of cert., explaining why she believes the 5th Circuit’s ruling affirming the dismissal of the prisoner’s complaint was wrong.

“The Fifth Circuit’s error in requiring Pitre to produce ‘evidence’ in support of his allegations before a responsive pleading was filed, in and of itself, is sufficient reason to reverse the judgment below,” Sotomayor wrote, citing Bell Atlantic Corp. v. Twombly.

“More fundamentally, however, in focusing on Pitre’s own contribution to his health problems, the courts appear to have misunderstood the nature of Pitre’s Eighth Amendment claim,” Sotomayor wrote. “His pro se complaint and attachments…allege not that respondents denied him medical care but that they punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.”

She said the prisoner’s complaint was “more than sufficient to state a claim of deliberate indifference” under the Eighth Amendment’s cruel and unusual punishment prohibition.

The Court also, without comment, took a pass on Simmons v. Galvin, a challenge brought by a Massachusetts prisoner claiming the commonwealth’s law prohibiting prisoners from voting violated the Voting Rights Act because a disproportionate number of inmates are black or Hispanic.

The Court also declined to take up a request by the Reporters Committee for Freedom of the Press to unseal filings in the case In Re Grand Jury Proceedings. That case involves an investigation of a doctor accused of unlawfully prescribing pain medication.

A petition by a Texas death row inmate was also rejected by the Court yesterday. The inmate’s attorney argued in Hall v. Thaler that the man should not be executed because he is mentally impaired.

In stay denial, Stevens again blasts death row appeal process

In an order that hits close to home for many Washington-area residents, the Supreme Court yesterday cleared the way for John Allen Muhammad, also known as the D.C. Sniper, to be executed tonight in Virginia.

Yesterday the Court denied Muhammad’s application to stay his execution, exhausting his judicial remedies. Unless Gov. Timothy M. Kaine intervenes, Muhammad will die by lethal injection tonight, a sentence for the shooting death of Dean H. Meyers in Virginia – one of 10 shooting deaths in and around the Washington area that terrorized the region for three weeks in October 2002.

But in a statement accompanying the Court’s order, Justice John Paul Stevens expressed his frustration with the Court’s decision not to stay the execution pending a full examination of Muhammad’s appeal.

Stevens noted that, after reviewing the case, he did not disagree with the decision to deny certiorari in the case. But, Stevens said, had the Court granted the temporary stay, it would have had the opportunity to fully vet the case at its conference in two weeks. But because state officials set the execution for tonight, the Court wouldn’t get that chance.

“This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded,” Stevens wrote in an opinion joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. “Under our normal practice, Muhammad’s timely petition for certiorari would have been reviewed at our Conference on November 24, 2009. Virginia has scheduled his execution for November 10, however, so we must resolve the petition on an expedited basis unless we grant a temporary stay. By denying Muhammad’s stay application, we have allowed Virginia to truncate our deliberative process on a matter – involving a death row inmate – that demands the most careful attention.”

Stevens renewed his call for automatic stays of death row inmates making their first appeal to the high court. “Such a practice would give meaningful effect to the distinction Congress has drawn between first and successive habeas petitions,” Stevens wrote. “It would also serve the interests of avoiding irreversible error, facilitating the efficient management of our docket, and preserving basic fairness by ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive.”

Sotomayor’s first vote a capital case

Supreme Court Justice Sonia Sotomayor has taken her first vote in her new job, joining a split minority of justices who sought to delay the execution of an Ohio death row inmate.

Yesterday the Court rejected by a 5-4 vote a bid by Jason Getsy to delay his execution, scheduled for today. Getsy, convicted of a 1995 shooting death, argued that the state’s lethal injection method constituted cruel and unusual punishment.

The Court ruled on another death penalty case yesterday, ordering that an evidentiary hearing be held for Georgia death row inmate Troy Davis to examine evidence his lawyer says shows he was wrongly convicted for the death of a police officer. Sotomayor did not participate in that ruling.

Yesterday Sotomayor also got her Circuit assignment. She will be in charge of appeals coming from the 10th Circuit.

Supreme Court: No S@*#!

Today the U.S. Supreme Court upheld a federal rule barring the use of expletives on prime-time broadcast television even if the words are uttered in a fleeting manner.

The case, FCC v. Fox Television Stations, stems from remarks made by celebrities during the 2002 and 2003 broadcasts of the Billboard Music Awards on the Fox network.

Justice Antonin Scalia, who made an unusually long statement from the bench in announcing the case this morning, seemed to have fun recounting the facts of the case including remarks made by Cher and Nicole Richie.

“In the first broadcast, the entertainer Cher exclaimed: ‘I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So eff ‘em!'” Scalia explained in the courtroom, just in case anyone missed the original broadcast.

In the other broadcast. Scalia explained, “Ms. Richie proceeded to ask the audience: ‘Why do they even call it The Simple Life? Have you ever tried to get cow s— out of a Prada purse? It’s not so effing simple.” Too bad opinion announcements don’t count in the Funniest Justice standings, or Scalia would have padded his lead a bit more.

As for the law, the 5-4 opinion of the Court held that the FCC’s decision to cite the television statement for the fleeting expletives was neither arbitrary nor capricious. “Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning,” Scalia explained. “And the FCC’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we [have] sanctioned.”

The Court also granted a new hearing in federal court for a Tennessee death row inmate who was deprived of key evidence at his trial in Cone v. Bell. Justice John Paul Stevens wrote and announced the opinion in that case.

Justices debate death penalty in cert denial

The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.

The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.

jpstevensStevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.

“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”

Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

Stevens went on the say that the existence of such “inescapable” delays “reinforces my opinion that contemporary decisions to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.”

thomas2But Thomas took issue with that characterization.

“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.

Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”

Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.

breyer1Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”

As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”

Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”

The new argument against the death penalty: It costs too much

As states around the nation struggle to stretch their budgets to cover payrolls and expenses in this bad economy, opponents of the death penalty are pushing states to repeal the punishment – to save cash.

In Colorado, Kansas, Nebraska, New Hampshire, Maryland, Montana, New Mexico and other states, the discussion around bills seeking to end capital punishment is focusing on dollars and cents.

New Mexico Gov. Bill Richardson, a longtime supporter of the death penalty, said he is considering signing a bill there seeking to end capital punishment for a number of reasons. But the economic argument is “a valid reason in this era of austerity and tight budgets,” he said, according to The New York Times.

Opponents of ending capital punishment call the economic argument short-sighted, adding that the cost of increased crime down the road could dwarf any savings.