Alabama’s Lethal Injection Protocol Survives Another Challenge

drugs

Today, the United States Supreme Court denied an Alabama death-row inmate’s request to review the constitutionality of Alabama’s three-drug execution protocol. Tommy Arthur argued that Alabama’s lethal injection cocktail violates the Eighth Amendment’s ban on “cruel and unusual punishment” because the method risks severe and unnecessary pain and suffering. The Court’s refusal to review the protocol almost certainly means that Tommy Arthur, who has been on death row for more than 30 years, will likely be executed soon. It also likely means that defendants who hope to challenge Alabama’s method of execution face a massive uphill battle in future fights.

Since lethal injection became the preferred method of execution in the 1980s, almost all states have used a three-drug cocktail to carry out the execution. The first drug administered would be a large amount of a sedative that’s supposed to knock the inmate unconscious and suppress all sensation. The second drug would be a paralytic, which would stop all muscular-skeletal movements, including the diaphragm. The final drug would cause the heart to stop.

Until recently, the first drug used in the three-drug protocol was either sodium thiopental. The manufacturer discontinued production of that drug, so states turned to pentobarbital. That drug also became unavailable in 2013. The states then turned to midazolam, the drug at the heart of recent Eighth Amendment litigation.

According to experts, midazolam doesn’t have the anesthetic effect of thiopental or pentobarbital. This is important because the second and third drugs administered in the the lethal injection process are extremely painful. Reports describe the pain from these drugs as a searing, burning pain spreading from the injection site throughout the body. Again, they literally stop your breathing and your heart. So, without a strong sedative, an inmate is likely facing an excruciating (and often prolonged) execution.

Executions using midazolam have been awful. Defendants executed with the drug in Oklahoma, Arizona, and Alabama died slowly and, apparently, very painfully when midazolam has been the first drug administered. (Justice Sotomayor’s dissent below details these executions.)

In challenging a method of execution as unconstitutional under the Eighth Amendment, a defendant must show a readily available constitutional alternative. Here, Arthur argued that there was a constitutional alternative to lethal injection in Alabama: the firing squad. The lower federal courts rejected this claim because Alabama law doesn’t specifically provide for death-by-firing-squad. Because Arthur couldn’t prove a constitutional alternative, the court wouldn’t review his claim that the cocktail using midazolam was unconstitutional under the Eighth Amendment.

Justice Sotomayor wrote a scathing dissent from the the Court’s refusal to consider this case. The dissent pointed out that Alabama recently amended its laws to allow for the execution of a defendant by “any constitutional method of execution.” See 15-18-82.1(c). Justice Sotomayor argued that Arthur met his burden of showing a constitutional alternative, even if that alternative wasn’t on the books in Alabama.

The dissent here was largely a critique on the lethal-injection protocol itself and the Court’s refusal to consider how screwed up our Eighth Amendment jurisprudence has become when a defendant can show that a method of execution causes unnecessary (and unconstitutional) pain and suffering, but can still be executed with that method because a State doesn’t have another method of execution on the books.

Read Sotomayor’s dissent here.

Alabama’s Lethal Injection Protocol Survives Another Challenge

Trump Narrows His List for Supreme Court Justice Replacement

It appears President Trump is close to naming former Justice Antonin Scalia’s replacement to the U.S. Supreme Court.

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After delivering a list of 21 possible candidates during his campaign, sources close to the selection process said that two names are left in the running, Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania. Some sources report that  Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit may still be under consideration.

Judge Hardiman has maintained a consistently conservative stance on “hot button issues,” most notably in gun cases. Judge Hardiman has shown a robust view of the Second Amendment. Fun Fact: Hardiman has a direct connection to the President as he serves on the same court as Trump’s sister, Maryanne Trump Barry.

Read more about Judge Hardiman here.

The other main candidate left, Neil Gorsuch, was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush in 2006. Many feel that this appointment, along with his similarities to Scalia in terms of legal writing, sets him up well to be appointed to the SCOTUS by a Republican president. His defense of religious liberties in Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Age v. Burwell as well as his pro-life views regarding assisted suicide  help mark him as a “solid conservative.” Cases such as United States v. Games-Perez have given his opportunity to use his extensive knowledge and application of legislative history.

Read more about Judge Gorsuch here.

Judge Pryor’s name has been thrown around for Supreme Court vacancies every since he ascended to the federal bench in 2003. One of his most well-known actions as attorney general for Alabama was removing Alabama Chief Justice Roy Moore after Moore refused to follow a federal court order to remove the Ten Commandments monument from the state’s Supreme Court building. Judge Pryor has spoken out against Roe v. Wade, and drawn much criticism for his position on abortion. He’s consistently ruled in the government’s favor in criminal cases. Although very conservative, Judge Pryor has voted to allow a transgender plaintiff to sue a State of Georgia office for firing her for her gender transition. Judge Pryor has also frequently voted for religious freedom.

Read more about Judge Pryor here.

Trump Narrows His List for Supreme Court Justice Replacement

Alabama Death-Row Inmates Ask for SCOTUS Review

Low wide angle view of the U.S. Supreme Court

Today, the US Supreme Court is considering three cert petitions involving important questions challenging the Alabama capital sentencing scheme. Two challenges involve the Supreme Court’s 2016 ruling in Hurst v. Florida, which held that any fact necessary to expose a defendant to the death penalty must be found by a jury, not a judge.

Two cert petitions involve Tommy Arthur, a man who’s been on Alabama’s death row for 30 years. One petition is a Hurst-based challenge. In that petition, Arthur (1) makes a general challenge to Alabama’s scheme under Hurst; (2) argues Hurst requires a unanimous jury vote for death (his vote for death was 11-1); and (3) claims Hurst applies retroactively.

Arthur’s second petition raises Eighth Amendment claims against Alabama’s execution protocol.

The Court is also considering a cert petition from Jerry Bohannon. While I do not have a copy of Bohannon’s cert petition, I would imagine he is raising claims similar to those he presented to the Alabama Supreme Court in his case that was decided in September 2016. There, the Court rejected a number of Hurst claims, most notably Bohannon’s challenge that Hurst requires a jury to decide the weight of aggravating factors against mitigating factors.

In Alabama, a judge makes the final sentencing determination and must decide that the aggravating factors of a case outweigh the mitigating factors in order to sentence a defendant to death. Under Alabama law (which is grounded in pre-Aprendi/Ring SCOTUS decisions), the weighing of aggravators versus mitigators is purely a job for the judge, not the jury. A fairly clear and long line of cases has held that the Sixth Amendment does not require a jury to conduct this weighing. Hurst calls this thinking into question.

I’m bearish on either case’s chance. I think Arthur has a better shot on the Eighth Amendment issue than the Sixth Amendment issue, but I don’t think he’d have the votes to do anything. Bohannon’s weighing claim is somewhat blunted by the fact that the jury recommended death by a vote of 11-1, so whatever error he claims might be harmless. Moreover, I don’t believe he raised a claim that Hurst requires juror unanimity, which probably would have helped. The Court should wait on a better vehicle – an override case -to take that issue up.

However, should the Court take up Bohannon’s case on the weighing issue, I think there’s a good chance the Court would rule in Bohannon’s favor and hold that the Sixth Amendment requires a jury to determine the weight of aggravators versus mitigators. I think the votes are there. Ginsburg authored Ring, Sotomayor wrote a scathing dissent in the denial of cert in Woodward v. AL, a case that challenged override in the pre-Hurst era, Breyer believes the Eighth Amendment requires a jury to find everything (even if he doesn’t like Ring) and joined Sotomayor’s dissent in Woodward, and Kagan, Kennedy, Thomas and Roberts were in the majority in Hurst.

Even if the Court doesn’t take up one of these two cases, I believe the writing is on the wall that the Court will be forced to take a closer look at Alabama’s capital sentencing scheme either this term or next.

Alabama Death-Row Inmates Ask for SCOTUS Review

US Supreme Court Update – Utah v. Strieff

Background

The Salt Lake City PD received an anonymous tip regarding drug activity at a house. A detective watched the house and saw folks coming and leaving after only a short duration. To him, this evidenced drug activity going on inside. The detective observed Strieff leave the house. He followed Strieff and eventually stopped him. The detective asked for Strieff’s ID and found out that Strieff had an outstanding warrant on traffic tickets. He arrested Strieff and searched him as incident to that arrest. Of course, the detective finds meth and meth paraphernalia.

After being charged, Strieff moved to suppress the drug evidence on the grounds that the detective illegally detained him. The State conceded that the detective did not have reasonable suspicion to stop Strieff, but argued that the “existence of the warrant attenuated the connection between the unlawful stop and the discovery of contraband.” A lower court affirmed denial of the suppression motion, but the Utah Supreme Court reversed.

REVERSED

The Court concluded that the exclusionary rule did not require suppression of this evidence because the discovery of the warranted attenuated the connection between the unconstitutional police actions and the discovery of the drugs.

Long ago, the Court created the “exclusionary rule” to exclude unlawfully seized evidence, also referred to as “fruit of the poisonous tree.” The Court has stressed that it’s to be applied so long as its “deterrence benefits outweigh the societal costs.” There are several exceptions to this rule, one of which is called “attenuation doctrine” which provides that suppression isn’t proper when the connection between the unconstitutional action and the seized evidence is either “remote” or interrupted by some “intervening circumstance.” At question here is the latter concern: was the discovery of a valid warrant an event sufficient to break the chain between the unlawful stop and the discovery of the drugs.

The Court employs a three-part test to answer this question: (1) What is the temporal proximity between the illegal conduct and the discovery of evidence? (2) What are the intervening circumstances?   (3) What was the purpose of the conduct and how flagrant was it?

While the Court found that the short time between the constitutional violation and discovery of the evidence favored suppression, the last two facts strongly favored not applying the exclusionary rule. Under the second prong, the existence of a valid warrant was a significant intervening circumstance. Once he discovered it, he was under an obligation to arrest Strieff. With respect to the final prong, the Court didn’t believe the detective’s actions were flagrant or part of “systemic or recurrent police misconduct”: while the initial detention was “at most negligent,” his actions after the stop were “lawful.”

The dissents in this case are quite strong. Justice Kagan’s dissent states that this decision effectively invites police to make illegal stop.

My Thoughts

If you look at this case objectively, the Court’s decision makes sense: if a police officer happens to learn someone has an outstanding valid warrant for their arrest, that officer has the duty to arrest them. If an arrest is made pursuant to a lawful warrant, police may search the arrestee. Thus, the search extends from the valid warrant.

But if you look at this case subjectively, the Supreme Court has given police officers leeway to engage in unconstitutional behavior. There’s really no way around it. The Court has told officers who would rather investigate outside the boundaries of the Fourth Amendment, “Hey, we’ve got your back in the borderline cases.” Count me in Justice Kagan’s camp.

US Supreme Court Update – Utah v. Strieff

Ninth Circuit Court of Appeals: Second Amendment Ruling

A huge Second Amendment ruling just came out of the Ninth Circuit Court of Appeals. The court has ruled that the Second Amendment does not protect the carrying of concealed firearms by a vote of 7-4, upholding the legality two California counties’ restrictive “for good cause” showing requirements.

There’s a very good chance we’re going to see this case before the US Supreme Court next term.

Read the decision HERE.

Ninth Circuit Court of Appeals: Second Amendment Ruling

The Modern Debtor Prison System

One trend occurring in prisons around the country involves courts receiving revenue from the fining of those who have committed minor offenses. For those in poverty-stricken neighborhoods or cities, the results can be devastating as they end up in prison after not being able to pay these mounting fines.

Last week, the New York Times published an editorial that explored a Justice Department motion in Ferguson, MO, a town that was put in the national spotlight in the wake of the Michael Brown case in 2014. The department said “state and local courts have an obligation to inquire about a person’s ability to pay fines and fees before jailing them for nonpayment.” The Supreme Court has also dealt with such perceived “unconstitutional” issues that violate the 14th Amendment.

The Ferguson plan hopes to secure measures that will help find better alternatives to imprisonment for someone’s inability to pay hefty fines related to minor offenses.

The Modern Debtor Prison System

Is the Supreme Court going to reconsider the constitutionality of the death penalty?

A death-row Pennsylvania defendant has asked the United States Supreme Court to reconsider the constitutionality of the death penalty. Relying upon the Eighth Amendment’s ban on “cruel and unusual punishment,” Shonda Walter contends that the time has come for the Court to end the practice once and for all.

Ms. Walter makes two arguments in petition asking the Supreme Court for review. First, she argues our standards of decency have evolved to a point where the death penalty is no longer “constitutionally sustainable.” Her petition cites the declining frequency in which the death penalty is imposed, the declining number of states where the death penalty is actually carried out, and the growing international consensus against the death penalty.

Second, Ms. Walter argues the legal framework surrounding the imposition of the death penalty is broken. Specifically, she contends that since the death penalty was reinstated almost 40 years ago, our laws have failed to ensure a system that’s reliable, consistent, not-arbitrary and “equally just.”

We could hear very soon whether the Supreme Court is going to revisit whether it’s time to do away with the death penalty in the United States. It only takes four justices to agree to hear a case. Just last term, Justice Stephen Breyer argued in decision that the Court should consider the constitutionality once again.

For anyone interested in this battle, I’d highly encourage you to read Ms. Walter’s petition by clicking HERE.

Is the Supreme Court going to reconsider the constitutionality of the death penalty?