De­spite vote, shift is felt on death penalty

Con­ser­va­tive jus­tices give the go- ahead, but ex­e­cu­tion op­po­nents take Breyer’s dis­sent as a call to arms.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age and Ti­mothy M. Phelps

WASHINGTON — The Supreme Court cleared the way Mon­day for Ok­la­homa to con­tinue us­ing a lethal drug cock­tail for ex­e­cu­tions, but, in a sur­pris­ing dis­sent, two lib­eral jus­tices opened the door to what could be­come a his­toric chal­lenge to the death penalty it­self.

By a 5- 4 vote, the court’s con­ser­va­tive jus­tices gave Ok­la­homa, Florida and other death penalty states the go- ahead to ad­min­is­ter mi­da­zo­lam, a sur­gi­cal seda­tive, as one of the drugs used in lethal in­jec­tions.

But op­po­nents of the death penalty took heart from a metic­u­lously re­searched and un­usu­ally pas­sion­ate dis­sent from Jus­tice Stephen G. Breyer, who openly in­vited a new con­sti­tu­tional as­sault on the very foun­da­tion of cap­i­tal pun­ish­ment.

The death penalty, Breyer wrote, is “un­fair, cruel and un­usual.” Op­po­nents of the ul­ti­mate pun­ish­ment took his words as a call to arms.

“I think this case will be re­mem­bered more for that dis­sent than for the de­ci­sion it­self,” said Richard Di­eter of the Death Penalty In­for­ma­tion Cen­ter in Washington. Breyer “has sort of planted a f lag for the courts to have a dis­cus­sion of the death penalty it­self. This is go­ing to be a blue­print for say­ing the coun­try has turned a cor­ner on the death penalty.”

Jus­tice Ruth Bader Gins­burg joined Breyer’s opin­ion, and the two other lib­eral jus­tices dis­sented strongly from Mon­day’s rul­ing, giv­ing the cam­paign to abol­ish the death penalty its big­gest mo­men­tum at the high court in nearly four decades.

In 1972 the jus­tices sus­pended the use of the death penalty, but re­in­stated it four years later. Mon­day’s dis­sent marked the f irst time since the early 1990s that two sit­ting Supreme Court jus­tices have openly

ques­tioned the le­gal­ity of cap­i­tal pun­ish­ment.

Their move comes at a time when public opin­ion has shifted dra­mat­i­cally from strongly to nar­rowly in fa­vor of ex­e­cu­tions. The share of the public that sup­ports the death penalty has de­clined more than 20 per­cent­age points since its peak in the mid- 1990s, and by 6 per­cent­age points since 2011, ac­cord­ing to a Pew Re­search Cen­ter poll re­leased in April. Sup­port now stands at 56% with op­po­si­tion ris­ing to 38%.

The is­sue has also be­come far more par­ti­san. Most of the rise in op­po­si­tion to the death penalty has come from Democrats and to a lesser ex­tent in­de­pen­dents. Repub­li­can sup­port has also de­clined, but not nearly as much. As a re­sult, to­day about 75% of Repub­li­cans sup­port the death penalty com­pared with 40% of Democrats, Pew found.

A grow­ing num­ber of states are al­ready tak­ing ac­tion. Ne­braska last month abol­ished the death penalty, be­com­ing the 19th state to do so and the sev­enth since 2007.

At the Supreme Court, a ma­jor­ity of the jus­tices still be­lieve cap­i­tal pun­ish­ment is con­sti­tu­tional, in­clud­ing Chief Jus­tice John G. Roberts Jr. and Jus­tices An­tonin Scalia, An­thony M. Kennedy, Clarence Thomas and Sa­muel A. Al­ito Jr., who wrote the opin­ion in the case of Glos­sip vs. Gross.

How­ever, if one of them were to leave the high court, sup­port for cap­i­tal pun­ish­ment there could come into ques­tion, par­tic­u­larly if the next pres­i­dent ap­pointed a more lib­eral jus­tice.

Since the re­tire­ments of lib­eral Jus­tices Wil­liam J. Bren­nan Jr. and Thur­good Mar­shall in the early 1990s, all of the jus­tices had voted in fa­vor of the death penalty. But shortly be­fore he re­tired, Jus­tice Harry Black­mun an­nounced that he had come to be­lieve cap­i­tal pun­ish­ment was un­con­sti­tu­tional. In 2008, Jus­tice John Paul Stevens did much the same, de­cid­ing the death penalty did not work re­li­ably as a de­ter­rent or an ef­fec­tive pun­ish­ment.

Jus­tice So­nia So­tomayor did not join Breyer’s state­ment but wrote the strong­est dis­sent in the Ok­la­homa case. She ac­cused the ma­jor­ity of al­low­ing a “method of ex­e­cu­tion that is in­tol­er­a­bly painful — even to the point of be­ing the chem­i­cal equiv­a­lent of burn­ing alive.” Jus­tice Elena Ka­gan agreed with her.

Pro­po­nents of abol­ish­ing the death penalty said they would use Breyer’s dis­sent as a launch­ing pad to mount what they en­vi­sion as a longterm ef­fort, some­thing akin to the years- long cam­paign for same- sex mar­riage that f in­ally came to fruition with Supreme Court ap­proval Fri­day.

“The time has come to raise a con­sti­tu­tional chal­lenge, to be think­ing about the ways that the death penalty vi­o­lates the Con­sti­tu­tion and how best to prove that,” said Cas­san­dra Stubbs, di­rec­tor of the Cap­i­tal Pun­ish­ment Pro­ject of the Amer­i­can Civil Lib­er­ties Union.

The bit­ter rift among the jus­tices over the death penalty was ap­par­ent in the case of Richard E. Glos­sip, who was con­victed in the 1997 mur­der of his boss. Oral ar­gu­ments in April pro­voked what some observers thought was the sharpest dis­pute the court has seen in many years.

Though it’s un­usual for dis­sents to be read from the bench, on Mon­day both Breyer and So­tomayor read their dis­sents aloud. Then, even more un­usual, Scalia opted to read aloud from his con­cur­ring opin­ion to counter the ar­gu­ments of the dis­senters. “Welcome to Ground­hog Day,” Scalia said de­ri­sively, com­plain­ing that dis­senters were rais­ing fa­mil­iar com­plaints about the death penalty.

Scalia said the court’s lib­er­als had made it im­pos­si­ble for states to carry out the death penalty in a rea­son­able time by re­quir­ing an ex­haus­tive re­view process, and they then com­plain about the long and costly de­lays. “Jus­tice Breyer has been the drum ma­jor in this pa­rade,” he said.

Al­ito’s de­ci­sion fo­cused on the me­chan­ics and chal­lenges states face in car­ry­ing out ex­e­cu­tions. The most ef­fec­tive bar­bi­tu­rates, in­clud­ing sodium thiopen­tal, can no longer be ob­tained by prison author­i­ties be­cause anti- death- penalty ad­vo­cates lob­bied the drug’s Dan­ish man­u­fac­turer to stop selling it for ex­e­cu­tions, Al­ito said.

As a fall­back, Ok­la­homa author­i­ties switched to mi­da­zo­lam, and they ar­gued that a mas­sive dose puts an in­mate into a deep sleep. Only then do of­fi­cials ad­min­is­ter pow­er­ful and sear­ing drugs to stop the heart. Al­ito and four oth­ers re­jected claims from de­fense lawyers that this seda­tive is in­ef­fec­tive and may re­sult in “cruel and un­usual pun­ish­ment.”

“Be­cause some risk of pain is in­her­ent in any method of ex­e­cu­tion, we have held that the Con­sti­tu­tion does not re­quire the avoid­ance of all risk of pain,” he said. “Af­ter all, while most hu­mans wish to die a pain­less death, many do not have that good for­tune. Hold­ing that the 8th Amend­ment de­mands the elim­i­na­tion of es­sen­tially all risk of pain would ef­fec­tively out­law the death penalty al­to­gether.”

The state’s ex­e­cu­tion cham­ber was thrust into the na­tional spotlight in April 2014 af­ter Ok­la­homa botched its f irst ex­e­cu­tion us­ing mi­da­zo­lam. Clay­ton Lock­ett, the con­demned man, awoke in ap­par­ent agony af­ter the drugs were ad­min­is­tered. He died af­ter a long strug­gle, ap­par­ently of a heart at­tack.

Death penalty foes said the grue­some spec­ta­cle con­firmed their view that lethal in­jec­tions should not go for­ward un­less the states f ind an ef­fec­tive bar­bi­tu­rate. But Ok­la­homa prison of­fi­cials blamed the in­ci­dent on a botched ef­fort to in­ject the in­mate’s veins, not a fail­ure of the mi­da­zo­lam.

Kent Schei­deg­ger, le­gal di­rec­tor of the Crim­i­nal Jus­tice Le­gal Foun­da­tion in Sacra­mento, praised the ma­jor­ity de­ci­sion. “The death penalty is sup­ported by the vast ma­jor­ity of the Amer­i­can peo­ple. Jus­tice in these hor­ri­ble cases must not be ob­structed by a con­spir­acy to cut off the needed drugs,” he said in a state­ment.

In Cal­i­for­nia, which has the most peo­ple on death row of any state, Gov. Jerry Brown’s ad­min­is­tra­tion has agreed to pro­pose a new lethal in­jec­tion method within 120 days, as part of a le­gal set­tle­ment in a case brought by Schei­deg­ger’s or­ga­ni­za­tion.

Un­til now, Breyer, who has served 20 years on the high court, never con­tended the death penalty was un­con­sti­tu­tional. He and Gins­burg ar­gued that new ev­i­dence over the last two decades had con­vinced them the death penalty is costly, in­ef­fec­tive and un­re­li­able. More than 100 pris­on­ers con­demned to death had their con­vic­tions or sen­tences thrown out in the last decade, he said.

“Last year, in 2014, six death row in­mates were ex­on­er­ated based on ac­tual in­no­cence. All had been im­pris­oned for more than 30 years,” Breyer said.

While state of­fi­cials com­plain the ap­peals in these cases last decades, Breyer said the re­cent ex­on­er­a­tions show it would be a mis­take to speed up the ap­peals process. Do­ing so would al­most surely lead to ex­e­cut­ing in­no­cent peo­ple, he said.

“In sum, the ad­min­is­tra­tion of the death penalty can take place swiftly but un­re­li­ably or it can take place with long de­lays but with­out sig­nif­i­cant jus­ti­fy­ing pur­pose,” he con­cluded. “We can­not have it both ways.”

Jac­que­lyn Martin As­so­ci­ated Press

NEW ZEALAN­DER Jack Lea­son, 19, at the Supreme Court in Washington, where a ma­jor­ity of the jus­tices be­lieve cap­i­tal pun­ish­ment is con­sti­tu­tional.

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