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SCOTUS Splits 5-4 on Capital Case

Justice Barrett would have denied the stay, but did not join Justice Kagan's dissental.

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Thursday evening, the Supreme Court vacated an injunction entered by the district court in Hamm v. Reeves. The Supreme Court's order allowed the execution of Matthew Reeves to proceed. The Court split 5-4. Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh were in the majority. Justice Barrett simply indicated that she would have denied the application, without a noted dissent. Justice Kagan wrote a three-page dissent, which was joined by Justices Breyer and Sotomayor.

I think this is the first case where the new Roberts Court split 5-4 on a capital case. How do we explain Barrett's vote? I think she is simply opposed to issuing relief on the shadow docket--especially where the Supreme Court is vacating a lower-court injunction. Barrett made this point very clear in John Does 1-3 v. Mills.

Going forward, capital defendants can hope to pick off one more vote to get a favorable ruling.

NEXT: Thursday Open Thread

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  1. A federal law should end capital punishment, perhaps by conditioning funds on its repeal in a state. It is a lawyer rent seeking scam.

    Hi, lawyer dumbass, may I introduce the dose response curve? The strongest poison in the world, when diluted has 700 medical benefits. Water if ingested in quantities more than the kidneys can put out, goes to the head, makes brain cells swell, and cause seizures and death. When someone says anything is good or bad, ask them to specify the dose.

    A dozen executions a year does nothing, since the benefit is incapacitation, and nothing else. Each costs over $million, because of lawyer rent seeking procedure, all of it worthless, with made up, bogus excuses to delay.

    Capital punishment has also been made obsolete by the Chinese fentanyl overdose epidemic. It killed 100000 criminals in 2021, busting records thanks to the pro-criminal policies of the Democrat Party. That prevented 20 million crimes a year cumulative. So if the lifespan of a criminal was 40 more years, it prevented 800 million crimes. Crime is actually disappearing. Individual anecdotes are being sensationalized to justify higher government budgets.

    1. Imagine how bad San Francisco, New York, Chicago or Baltimore would be if we didn't have abortions and fentanyl?

    2. The only reason that capital punishment is a rent seeking scam is that we've allowed lawyers who oppose it to create that scam. All of the legal wrangling is a backdoor attempt to eliminate the death penalty, which unfortunately has been very successful.

      The current situation is case in point. We're wrangling on whether disability law prohibits this execution because the condemned didn't have a fair choice to decide the method of execution? How utterly ridiculous. It's all sophistry.

      1. because the condemned didn't have a fair choice to decide the method of execution? How utterly ridiculous. It's all sophistry.

        Talk to the AL legislature. They gave him the choice.

  2. "...Going forward, capital defendants can hope to pick off one more vote to get a favorable ruling...."

    Josh,
    Just out of curiosity; where do you think such defendants will be able to pick off that last, crucial, vote?

  3. The decision, in its entirety:

    The application to vacate injunction presented to JUSTICE THOMAS and by him referred to the Court is granted. The
    January 7, 2022 order of the United States District Court
    for the Middle District of Alabama is vacated.

    When a 5-4 Court is overturning a district court and a unanimous court of appeals, I feel the Court should probably give a little more than "application granted; injunction vacated", if not for the public's sake, then at least for the lower courts that look to it for guidance.

    1. Right. There’s no dissent below to assume they agreed with. A trump appointee agreed with the outcome on the 11th so you can’t just chalk it up to “liberals being liberals.” The standard of review is “abuse of discretion” and that is supposed to be deferential to the lower court and we have no idea where they supposedly went wrong. They apparently just think federal courts should just never stop executions ever for any reason.

      1. They apparently just think federal courts should just never stop executions ever for any reason.

        No, they just shouldn't stop them for transparently bad faith, contrived, and indefensible reasons.

        1. If it's "transparently bad faith, contrived, and indefensible" why would Judge Huffaker (Trump appointee) issue an injunction that was unanimously affirmed by an 11th Circuit panel that included Judge Branch (Trump appointee)? Why wouldn't Justice Barrett see through those?

          Are you saying these conservative judges can't see through bad faith, contrived, and indefensible reasons? Are you saying a conservative district judge couldn't identify those after seven hours of testimony and oral argument? Are you saying Judge Branch couldn't identify those in the record on appeal? Or that Justice Barrett can't see through them?

          Because I don't think you want to say something is "transparently bad faith, contrived, and indefensible" if plenty of the people you would think would see through them don't.

          1. Unfortunately, in the context of capital punishment the bad faith extends to the bench, and also has resulted in a lot of precedent that makes lower court judges think (sometimes correctly) that they have to engage in it as well.

            In my view, Justice Kagan's articulation of the claims involved is itself an ample demonstration that they are unworthy of a substantive response.

            1. Sounds like you're making bad faith accusations without a real basis tbh. Which is kind of beneath you.

              1. No, I'm not.

                This subhuman piece of garbage didn't care about how the execution he so richly deserved was implemented. His lawyers didn't care about how he was executed. Kagan, Sotomayor, and Breyer don't care about how he was executed. And I doubt you do either.

                Instead, having failed to convince the public, the elected branches, or the judiciary that capital punishment is wrong generally or in this case, they seized on a procedural pretext to try and delay it. Had they succeeded, they would have found another when the new execution date arrived, and so on until justice was ultimately cheated.

                So good for the Supreme Court for stopping the nonsense.

                1. "This subhuman piece of garbage didn't care about how the execution he so richly deserved was implemented."

                  You're starting to sound like Bob. Do I need to remind you of what morals are too? (also if he didn't care....maybe that's because he was so intellectually disabled he couldn't comprehend what was going on and shouldn't have been executed in the first place)

                  "His lawyers didn't care about how he was executed. Kagan, Sotomayor, and Breyer don't care about how he was executed. And I doubt you do either."

                  How do you know this? You think his lawyers want to watch their long time client suffer? You think the justices don't care? What's your basis for thinking I don't care? Sounding like Bob is not a good look.

                  "Instead, having failed to convince the public, the elected branches, or the judiciary that capital punishment is wrong generally or in this case, they seized on a procedural pretext to try and delay it."

                  Read the Eleventh Circuit on this: any delay is attributable to Alabama for not coming up with a protocol.

                  "So good for the Supreme Court for stopping the nonsense."

                  You think its good that the Court denied a preliminary injunction without analysis, when the standard is abuse of discretion, the district court conducted extensive hearings, and the eleventh circuit actually went through the record and affirmed every point? That's not good at all. It's actually nonsense in itself and seems like the Court itself was engaged in some lawless disregard for the standards they are supposed to be using. (Again sounding like Bob, that's not good)

            2. Seriously, read the 11th Circuit opinion, particularly the last paragraph about delay and the balance of equities:

              "Finally, the district court did not abuse its discretion in concluding that the equities in this case weighed in favor of Mr. Reeves. During the preliminary injunction proceedings, counsel for the defendants represented that the nitrogen hypoxia protocol would be "completely ready to go" within "the first three or four months of [2022]." D.E. 78 at 219. Weighing "this arguably short delay against the irreparable harm to [Mr.] Reeves if he is forced to face execution by a method he so greatly fears—and one he would not have chosen absent the ADOC's alleged ADA violation," the district court determined that the equities favored Mr. Reeves. See D.E. 83 at 36.

              There is no reversible error. Notably, this is not a case where a defendant has asked a district court to enjoin a state from executing him altogether, regardless of the method of execution. Mr. Reeves requested only that the court prevent the ADOC from executing him by any method other than the one he would have chosen but for the defendants' alleged violation of the ADA, pending resolution of his ADA claim.

              It is also worth pointing out that the Alabama Legislature agreed on nitrogen hypoxia as a permissible method of execution in June of 2018. Three and a half years later, Alabama has yet to develop, let alone implement, a protocol for this method of execution. Any delay, then, in executing Mr. Reeves and any other death row inmate who elected nitrogen hypoxia is at this point attributable to Alabama. This fact certainly weighs against the defendants, and even if the issue is close the district court did not abuse its discretion in finding that the equitable preliminary injunction factors favored Mr. Reeves. Cf. Doran, 422 U.S. at 932 ("While we regard the issue as a close one, we believe that the issuance of a preliminary injunction . . . was not an abuse of the District Court's discretion.").

              I just don't think you can accuse anyone of bad faith.

  4. Two parts to this case
    A) whether or not either of the two methods of execution have the risk of feeling pain on death.
    B) whether to condemned had the mental capacity to chose the the appropriate method for his execution.

    On the second question - If he lack the mental capacity to chose the choice of method, how did he have the mental capacity to be eligible for the death penalty under existing SC precedent?

    On the first question - The probability of feeling with lethal injection is extremely remote. Anyone that has ever had surgery knows its darn near impossible to feel pain.

    1. You're assuming people who perform executions have the same competence levels as people who put patients under anesthesia for surgery. It ain't necessarily so.

      1. Also, there are several notable counter-examples of lethal injection taking a long and painful time.

    2. The probability of feeling with lethal injection is extremely remote.

      In a completely ideal world, absolutely. The complication in this context is whether the drugs used in the lethal injection are properly formulated and fresh enough to still be effective. Opponents of lethal injection have attempted to shut down the process by fiat by pressuring/threatening the supply chain (from pharmacists all the way up to drug manufacturers) to refuse to supply the drugs to the states.

      Ironically, this has resulted in a number of slow and exceptionally painful deaths due to drugs that were past expiration or improperly formulated by one of the few remaining compounding pharmacies willing to take the political heat (think the lethal injection equivalent of back-alley abortions). Then the opponents use those incidents as further ammunition for why lethal injection should be banned altogether; lather/rise/repeat. It's a very complicated and unfortunate situation.

    3. Just as importantly, whether or not a method of execution has a risk of causing pain is irrelevant. As long as it is not intentionally causing pain or more pain than is necessary to get the job done it's not cruel. Arguments that causing any pain is cruel and therefore prohibited by the 8th are modern stupidity put forward in a back door attempt to ban capital punishment.

      1. Arguments that causing any pain is cruel and therefore prohibited by the 8th are modern stupidity put forward in a back door attempt to ban capital punishment.

        Exactly, and on top of that it's a constantly moving target. Activists complain that a given method (e.g., electric chair) is cruel/unusual; states move to inarguably less painful means (e.g., lethal injection); activists then reset and find reasons why THAT method is cruel/unusual (reasons they often create themselves -- see my above post).

    4. re: "Anyone that has ever had surgery knows its darn near impossible to feel pain."

      Actually, no. More precisely, it depends which drugs they put you under with. Several of the anesthetics used during surgeries don't actually block the pain, they merely block your memory of it. In other words, the patient feels the full immediate pain but the chemicals block your ability to remember it. Those drugs are usually accompanied by a paralytic so you're not thrashing on the operating table (and, again, never remembering it).

      Most surgical anesthetics do the same to some degree or another. In the context of an execution, not being able to remember the pain is a moot point so we re-interpret the obligation to say that we can't cause the pain in the first place. But since it's almost impossible to disentangle the memory blocking from the immediate pain suppression, the re-interpretation becomes a practical impossibility to assure.

      1. Is that really true? I'd have thought that pain like that would cause massive spikes in blood pressure and heartrate, and cause the body to secrete all kinds of hormones. None of that would be good on the operating table, even if the patient were motionless.

  5. "Reeves was convicted of killing Willie Johnson Jr., a driver who gave him a ride in 1996. Evidence showed Reeves went to a party afterward and celebrated the killing."

    "After the dying man was robbed of $360, Reeves, then 18, went to a party where he danced and mimicked Johnson’s death convulsions, authorities said. A witness said Reeves’ hands were still stained with blood at the celebration, a court ruling said."

    Justice finally. Only took 26 years.

    1. If the authorities say that's how it happened, I'm sure they must be right.

  6. The problem here is the desire to sanitize a brutal procedure. The states are trying to make it look like a medical procedure and it isn't. It's blood vengeance, and it should look like blood vengeance. If we are going to have executions they should be public and bloody. The guillotine accomplishes that, while at the same time being humane by virtue of being instantaneous.

    The above comment should not be construed as being sympathetic to murderers. I happen to agree with Bob that the world is a better place for this mope no longer being part of it. I continue to have reservations about the death penalty because I don't trust the state to get right who should live and who should die, but that's a side issue. If we are going to have executions, they should look like executions, not like some sterile medical procedure. Let's be honest about what we're doing.

    1. "blood vengeance,"

      Make no mistake, it's not revenge we are after. It's a reckoning.

      1. Bob, so one of your kids hits another of your kids, the second one hits him back, and then say it’s not revenge he was after but a reckoning. Would you buy that? Me neither.

        Call it whatever you like but intentionally inflicting suffering on someone is revenge. You want him to suffer. And that’s not a motivation that would be considered acceptable in a child.

        1. The point isn't to inflict suffering.

          The point is that a sufficiently civilized society recognizes that some crimes are so heinous that allowing their perpetrators to continue living amongst us, even isolated in a maximum security prison, would be an affront to justice.

          1. The point is to inflict suffering, and your second paragraph is nothing but a rationalization.

            Let us suppose that someone invented a pill that turned Ted Bundy into a decent human being, no longer dangerous, and thoroughly repentant of the crimes he committed. He takes the pill. At that point, what do you think should be done with him?

            My bet is that your answer would have revenge buried in there somewhere, even if you've found nicer language to dress it up in. But I'm willing to be persuaded otherwise. So, what would you do with him?

            1. You are correct that I think that it would be unjust to allow the most heinous criminals to go unpunished, even if there were no risk of them reoffending—although of course in reality there is usually a pretty substantial risk of that, which offers an independent justification for an incapacitating punishment.

              If calling that important principle "revenge" helps you feel better about dismissing it, feel free.

              1. I don't dismiss it. I just think we should call things by their proper names.

                I'm also far from convinced that a relatively quick death is a greater punishment than locking someone in a cage for the rest of their lives. If I were given that option, I might very well choose the needle.

                1. I'm also far from convinced that a relatively quick death is a greater punishment than locking someone in a cage for the rest of their lives.

                  If only it were that clearcut.

                  "Life sentences" often aren't because of 1) perpetual efforts by lawyers to relitigate the merits of the cases (like many things, a useful and necessary tool that is sometimes abused); 2) executive commutation of sentences (ditto); and 3) legislative efforts to retroactively make parole-ineligible sentences eligible after all (ummmm).

                  Given that, rational actors would tend to choose "life imprisonment" and play the odds.

                  1. LOB, I think all of those things tend to happen far less frequently than you claim. (1) Most people doing life don't have the resources to continually relitigate the issues, so once their first round of appeals ends, that's usually it. Of course there are some cases where that happens, and they make news in part because they are rare.

                    (2) That varies state by state but most of the time a lifer won't be taken seriously for commutation until he's very old and has been there a long time. I'm currently representing a lifer who has unsuccessfully been trying for executive clemency since 1972.

                    (3) Legislative efforts -- are you serious? Not in today's tough on crime environment. Give me an example of where that's actually happened.

                    1. LOB, I think all of those things tend to happen far less frequently than you claim.

                      While I didn't claim any particular frequency, my point holds true at any frequency greater than the ~0% odds of surviving an execution.

                      (1) Most people doing life don't have the resources to continually relitigate the issues, so once their first round of appeals ends, that's usually it.

                      Resources? You acknowledge in the very same post you're working with a lifer on clemency, and I strongly suspect you're doing that pro bono just like thousands of practicing attorneys, law professors, and students do every year. Come on.

                      (3) Legislative efforts -- are you serious? Not in today's tough on crime environment. Give me an example of where that's actually happened.

                      Oops -- apparently only one of us actually looked before posting. Exactly which one is left as an exercise for the reader.

                2. I'm also far from convinced that a relatively quick death is a greater punishment than locking someone in a cage for the rest of their lives. If I were given that option, I might very well choose the needle.

                  Since virtually every death sentence generates abuses of the legal system aimed at forestalling it and those sentenced to life in prison never ask to be executed instead, it would seem your preference is not widely shared.

                  1. And I think that's an example of people not always making good judgments about what is actually in their best interest. Are you seriously suggesting that being locked in a cage for the rest of your life isn't severe punishment? I certainly wouldn't volunteer for it.

                    1. 1. And I think that's an example of people not always making good judgments about what is actually in their best interest.

                      Hmm. So people on death row who seek to get their executions deferred, or converted into life sentences are, ipso facto, acting against their best interests ? Would it not then be appropriate for the court to appoint some kind of official agent or guardian who could make the only rational decision for them ? It would certainly save a lot of time on these last minute appeals.

                      Are you seriously suggesting that being locked in a cage for the rest of your life isn't severe punishment?

                      This seems to have been plucked entirely from your own imagination.

                      I certainly wouldn't volunteer for it.

                      But how can we trust your judgement on this matter ? Especially since you seem prone to reading imaginary words in Noscitur's comments.

                      Back on Planet Earth, most people, even in very dire circumstances, prefer life to death.

                      A few do choose death, but normally, when old, arthritic, Mrs Goodworthy is found dead having taken a large dose of barbiturates, having recently filed an application with the court seeking the removal of her son from her house, on the grounds that he is trying to kill her for her money; we tend not to assume that the court application was really just an irrational bout of false consciousness and that in the end she saw sense and swallowed the pills of her own accord. We tend to wonder about the son's whereabouts on the evening in question.

                    2. Lee, my “are you seriously suggesting “ was a rhetorical question not intended to be taken literally. That you did take it literally strongly suggests I’m not the one with problems perceiving reality.

        2. "Would you buy that?"

          IDK Did a jury approve it? How many courts reviewed it before he did it?

          Your argument would apply to any criminal case. Going to prison inflicts suffering too.

          1. Going to prison inflicts suffering but it also serves the other purposes of deterrence and protection of society. The question is whether executing someone does a better job of serving those interests.

            I don't think anything is much of a deterrent because nobody ever expects to get caught. No rational actor is going to think through and decide that going to prison for a long time is worth whatever crime he's planning to commit.

            And I don't think there's any good evidence it protects society. As a general proposition (there are counter examples) states with no death penalty have lower crime rates than states that do. If the death penalty did any good, Houston would be the safest city in the country.

            1. I don't think anything is much of a deterrent because nobody ever expects to get caught.

              Well, it's certainly rational not to expected to be executed. The deterrent effect of the death penalty is significantly reduced by the fact that even if you're caught and convicted, your chance of actually being executed is microscopic. And everyone knows that.

              It's a bit like the deterrent effect of the death penalty for driving recklessly. Mother Nature imposes the punishment very rarely. If she did it 50% of the time, lot more drivers would be a lot more cautious

              And I don't think there's any good evidence it protects society. As a general proposition (there are counter examples) states with no death penalty have lower crime rates than states that do.

              As mentioned above, the fact that even in states that do have the death penalty, it is carried out very rarely, means that you are comparing states with 100% no death penalty with states with 99.5% no death penalty. So even if comparing states with different populations and circumstances were a valid method, the comparison could never show anything useful, because of the unicorn-like population density of the death penalty.

              Meanwhile we do know that murderers who are convicted but not executed can murder again. And do. Whereas there is no recorded case, anywhere, anytime, of an executed murderer killing again.

              1. The death penalty wasn’t a deterrent in Victorian England, when people who gathered to watch people being hanged for pick pocketing had their pockets picked during the execution.

                Criminals don’t expect to get caught. Period, full stop.

            2. "question is whether executing someone does a better job of serving those interests"

              Nice goal post moving.

              1. No goal post move. Rather it pointed out that suffering isn’t the only purpose of incarceration. Try again.

  7. One additional reason may be Justice Barrett's Catholic faith. The Church condemns capital punishment. That may play a role in her vote not to lift a stay.

  8. "Going forward, capital defendants can hope to pick off one more vote to get a favorable ruling."

    Or to get a year reprieve until the Supreme Court can make a ruling on its routine docket.

  9. How do we explain Barrett's vote? I think she is simply opposed to issuing relief on the shadow docket--especially where the Supreme Court is vacating a lower-court injunction. Barrett made this point very clear in John Does 1-3 v. Mills.

    Not clear enough for me. What is the Blackman theory - that she simply opposes any SCOTUS interference with a lower court judgement, except a full merits decision in regular order. SCOTUS should never respond to emergency applications ?

    And looking at his linked comment about John Does 1-3 v Mills, that seems to be about Barrett incorporating a judgement about whether SCOTUS will take the eventual merits question, into her judgement at injunction time, about whether a litigant is or is not likely to prevail on the merits. That works in the Mills case where she was in the majority, but in this case she's in the minority. She can't have any doubts about where the court would go on the merits, since there's a majority to squish the injunction.

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