Today in Supreme Court History: July 18, 1942

7/18/1942: Justice George Sutherland dies.

Justice George Sutherland

Comments

[Dan Schiavetta]

Hamblen v. Dugger, 492 U.S. 929 (decided July 18, 1989): staying execution pending decision on certiorari, with the stay to dissolve if cert was denied. Cert was denied on 6/28/90, 497 U.S. 1031, with Brennan and Marshall as usual dissenting, “adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments”. For some reason execution did not happen then; it happened the day after another application for a stay was denied on 9/21/90, 497 U.S. 1054, with only Marshall dissenting (Brennan had retired by then). According to the AP report of Hamblen’s electrocution, “During his last minutes, he smiled, winked and stuck his tongue out at witnesses in the death chamber. In his final statement, Hamblen made a play on President Bush’s campaign promise not to raise taxes. ‘You know that I had trouble with that four-letter L-word, so like George, read my lips,’ Hamblen said to Judith Dougherty, one of his state-funded attorneys. He then mouthed the words, ‘I love you.’” He had at one point asked his appeals to be dropped and said he was depressed that his execution had been postponed so long. His crime: in the process of robbing a lingerie store, shooting the owner in the back of the head when she pressed a silent alarm button.

[Mr. Bumble]

What "cruel and unusual punishments" were common at the time of the adoption of the Constitution?

[Dan Schiavetta]

As far as I know, we never did things like the French were doing, executing people by drawing and quartering, sealing them up and letting them starve, burning at the stake, etc. For us it was always quick and relatively painless: hanging, firing squad, then later on electrocution and lethal injection.

[defaultdotxbe]

18th and early 19th century hangings were short drop, which was neither quick nor relatively painless. Its definitely cruel compared to other execution methods used in the US, including long drop hangings (where the condemned is dropped a far enough distance to break their neck and kill them instantly)

[Dan Schiavetta]

Thanks for this clarification.

Something else I wanted to mention -- this business about witnessing executions. I thought it was just a TV thing for dramatic effect, but apparently not. Bill Clinton famously (and despicably) refused to stay the execution of a mentally retarded man and personally went back to Arkansas to witness it. Aside from this, who would want to see such a thing? Is there some kind of requirement that there be a witness (aside from the doctor and the guy throwing the switch)?

[Michael P]

https://abcnews.go.com/US/story?id=96440&page=1 discusses the witness process, saying more than a dozen states require (volunteer) citizen witnesses at executions. I can see an argument that impartial witnesses should observe and confirm that the convict is treated with due respect and that the execution is carried out according to law.

It seems to me that anyone who supports the death sentence should be willing to witness at least one execution, if their state calls upon them to do so — something like being called up for jury duty, although vastly less common. I am not sure whether summoning witnesses would be good public policy, only that if someone is unwilling to watch an execution be carried out, they should seriously weigh whether executions should be performed at all.

[Dan Schiavetta]

Thanks for this!

[Mr. Bumble]

A few thoughts on this.
Opponents of the death penalty (such as Brennan and Marshall)
think the act itself is cruel and unusual. Others argue that the manner of execution is cruel and unusual.
As for witnesses I can't find anything as to why and if they're required. Of course at one time, executions were public events.A justification might be to insure that the sentence of the court was carried out (in the same sense that trials are to be open to the public).
As to who would want to witness an execution, the few laws that I found make provision for the family members of victims to be present.

[Mr. Bumble]

Posted this without reloading the page and therefore missed Michael P's comment.

[Mark Regan]

Clinton didn't personally witness Rector's execution, did he? He was in Arkansas to deny any last-minute clemency requests Rector's attorneys filed.

[Dan Schiavetta]

Maybe -- my memory is foggy as to that. I don't know why he would have to be in Arkansas to deny a request -- he simply could have left it unapproved, or have his signature denying the request sent by FedEx.

[Mr. Bumble]

I think he would need to be in the state for his action to be valid.

[Magister]

I think Clinton left the presidential campaign trail for the execution to promote an image of being "tough on crime". Maybe what he had to do to win.

[Dan Schiavetta]

That’s what I remember.

[Frank Drackman]

Where does Saline Abortion rank?

[Dan Schiavetta]

Today's movie review: The Last Place on Earth, 1985

Actually this was a 7-part miniseries, which you can find on youtube. By far the best account of the race for the South Pole, which ended in tragedy for Robert F. Scott of Britain and a hollow victory for Roald Amundsen of Norway. They don't get to Antarctica until Part 4 which is actually a good thing because it shows the complicated social, political and personal interactions in England and Norway that resulted in these two very different expeditions. It's based on Roland Huntford's "Scott and Amundsen", which over-corrected the view of Scott as a hero and Amundsen as deviant and opportunistic. Huntford had nothing but bad things to say about Scott and the miniseries does show his many pigheaded and shortsighted decisions, but Martin Shaw manages to make him somewhat sympathetic, a tortured and insecure man, partly envious of his outspoken wife who rebels against the strictures Victorian society places on women, among other things by swimming nude.

We see how Scott had to degrade himself to get funding, how he double-crossed his men, how Amundsen decided at the last minute to go to the South Pole instead of the North Pole after controversy erupted between Peary and Cook over who got to that place first (nowadays people think neither got there at all), disobeying orders from his sovereign and driving his poor brother Leon (who was arranging the financing) to distraction, etc.

Huntford was a good writer but (like I say) biased. I recommend Susan Solomon's "The Coldest March" for a more objective account. Solomon, who has been to the South Pole as a meteorologist, makes the point that Scott was done in by the unusually cold March of 1912 which made sledging difficult. Also "The Worst Journey in the World" by Apsley Cherry-Garrard, widely regarded as the best adventure book ever written. Poor Apsley, the youngest man on Scott's expedition, was assigned to go to "One Ton Depot" to wait for Scott; the next year when the tent was found he realized that Scott and his remaining men had been freezing to death only 11 miles away! He could have saved them! He lived a long life and eventually went crazy, thinking of this.

Scott made bad decisions and cut things too fine, but March 1912 was a stroke of bad luck. Amundsen made good decisions (though his "expedition" was more like a raid) and also had good luck, getting back before the season advanced. He also became mentally unstable later on, as he did not get the respect given to the heroically dead Scott. He knew that he owed his status as the first to get to the Pole to Scott, obviating any Peary-Cook type dispute. After Scott finally got to the Pole, a month after Amundsen, he wrote: "There is no doubt that our predecessors have made sure of their mark and fully carried out their programme." As Solomon put it, the diary entries and letters that Scott wrote knowing that he was dying "extend our idea of what it means to be human".

[SRG]

I'll bet that the music doesn't beat Ralph Vaughan Williams' music for "Scott of the Antarctic". Here's the symphony RVW constructed from that soundtrack: https://www.youtube.com/watch?v=Mv6YBg7PLag

[Dan Schiavetta]

Thanks! Vaughan Williams is one of my favorites. The music for "Last Place on Earth" was pretty pedestrian. It was Vangelis-style, influenced by "Chariots of Fire".

[SRG]

I am not generally a fan of my countrymen's music and if I never hear the Elgar cello concerto again it will be too soon, but RVW is wonderful.

There's this: https://www.youtube.com/watch?v=ihx5LCF1yJY - which of course has been used in film many times, including in Master and Commander

[Dan Schiavetta]

Hey I’ve played that concerto! (As the stand in for the soloist in rehearsal.)

Thanks for this.

Also I’ve played this:

https://youtu.be/FqYvoP84ecI

[Frank Drackman]

Hmm, trying to remember, something about this date, and a former US Senator, Ned or Red Schmededy or something, seems there was an Asphyxiation (NOT drowning, there's a difference) of a young woman, that may or may not have been pregnant with his child (no Autopsy, as it was a "Natural Causes" death, at least it was with the Schmededy's.) Anyone remember??

Frank

[Mr. Bumble]

Wonder what he would think of Biden being the President and his nephew running for that office?

[Frank Drackman]

He famously said that Senescent Joe was the biggest Idiot in the Senate.

[Dan Schiavetta]

It's Scott's heroic diary that made the difference. And the decision to stay in the tent, which allowed the diary to be discovered when light returned in November 1912. If they had gone further, dying in their tracks, they would have disappeared without a trace.

Scott's feet had become frostbitten and he could not go on. They had run out of food and fuel (to melt snow into water). Bowers and Wilson decided to die with him. The alternative was to abandon him; they probably could have gotten to One Ton Depot, but with the constant south wind they would never have made it back.

[SRG]

FWIW Oates’ words “I am just going outside and may be some time.” are often adapted by Britons familiar with the story – typically when going to the bathroom at the pub.

[Dan Schiavetta]

That's funny.

Huntford believes that Oates probably did not say this, that it's an invention by Scott. Wilson, who was still keeping a diary at that point, does not mention it. But if true it adds to an inspiring story.