Death penalty

  • August 13, 2014

    by Caroline Cox

    The Editorial Board of The New York Times explores the racial history that underlies the Ferguson, Mo. protests and the death of Michael Brown.  Peniel E. Joseph of The Root provides additional perspective in looking at the echoes of the Watts Rebellion in the protests.

    Brian Beutler of the New Republic writes that the claims of Halbig “Truthers” do not stand up to close scrutiny.

    The Washington Post’s Bonnie Berkowitz, Lazaro Gamio, Dan Keating, and Richard Johnson provide a breakdown of those put to death since the Supreme Court reinstated the death penalty in 1976.

    The Editorial Board of the Los Angeles Times argues against religious exemptions to the executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.  

    The Equal Justice Initiative reports on a new study that finds “people were more supportive of harsh criminal justice policies the more African Americans they believed were in prison.”

  • August 4, 2014

    by Caroline Cox

    In The Washington Post, Maurice Possley of The Marshall Project writes that new evidence raises doubts about the 2004 Texas execution of Cameron Todd Willingham. “This case could be the first to show conclusively that an innocent man was put to death in the modern era of capital punishment.”

    Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law for the University of Chicago,  former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, explains in The Daily Beast that the flood of judicial rulings holding bans on same-sex marriage unconstitutional are not the result of public opinion shifts. Rather, the Supreme Court opened the door to these decisions long before support for gay marriage became more mainstream.

    Collin Eaton, writing for The Houston Chronicle, reports that BP has asked the Supreme Court to reverse lower court rulings on the approved settlement class for the 2010 Deepwater Horizon disaster. The petition asserts that claimants should have to show that their losses were directly tied to the spill.

    The Tennessean’s Brian Haas reports on the Tennessee Supreme Court retention election, noting the large amount of money conservative groups have spent to campaign against the justices.

    Christine Vestal of Stateline discusses the challenges many state health insurance exchanges face in light of the Halbig v. Burwell ruling. Consumers in 36 states risk losing future premium subsidies if the Supreme Court rules in favor of Affordable Care Act opponents. 

  • July 25, 2014
    Guest Post

    by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

    The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment.  Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

    The Wood Litigation Seeking Access to Information about the Drugs and Executioners

    In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information. 

    On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment.  In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

    The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

    Was this Just a Gimmick to Delay Litigation?

    Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods.  We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working. 

    With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better.  In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods.  In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation.  What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer. 

  • July 24, 2014

    by Ellery Weil

    At The Week, Andrew Cohen discusses Wednesday’s botched execution of Arizona inmate Joseph Wood, a “state-sponsored, judicially sanctioned human experiment that went terribly wrong.” For more on botched executions, ACS held a call this past May featuring Slate’s Dahlia Lithwick and Megan McCracken, Eighth Amendment Resource Counsel with the U.C. Berkeley School of Law's Death Penalty Clinic, to discuss the execution of Oklahoma inmate Clayton Lockett.

    Matt Ford of the Atlantic discusses the mass incarceration crisis, and its broader effects on the nation.

    Dominic Perella speculates on the probability that this week’s decisions in Halbig and King will result in the Affordable Care Act going back before the Supreme Court on msnbc.

    Writing for The Washington Post, Daniel Hertz explains the legacy of Milliken v. Bradley, and how 40 years later, its legacy continues to haunt our school systems.

  • July 23, 2014

    by Ellery Weil

    Nicholas Bagley argues at The Incidental Economist that the method of statutory interpretation used by the majority in Halbig v. Burwell “leads to a result so manifestly at odds with what Congress actually meant.”

    In Politico, Abbe Gluck looks at Halbig and how the U.S. Court of Appeals for the D.C. Circuit “bent over backwards” to interpret the statute in a way that “no one who followed the enactment of the Affordable Care Act actually thinks Congress intended.”

    Amanda Hess of Slate questions whether Johns Hopkins’ recent settlement in a class-action suit against an abusive gynecologist is trying to provide a quick-fix legal and financial solution in a case where there are far larger issues of class bias and institutional disenfranchisement at play.

    Orin Kerr mentions at The Volokh Conspiracy that the Supreme Court has reversed the Ninth Circuit’s decision on Ryan v. Wood, the Arizona lethal injection case.