Due Process

  • April 30, 2014

    by David Lyle

    A week after the Oklahoma Supreme Court buckled under political pressure, state officials pushed ahead with a controversial execution method to be used on two death row inmates; one of those inmates suffered a grisly death by heart attack after the lethal injection failed to work effectively. After the botched execution of Clayton D. Lockett, detailed in this piece by The Atlantic’s Andrew Cohen, state officials temporarily halted the second planned execution.

    ACS President Caroline Fredrickson blasted Oklahoma state lawmakers for interfering with the judicial process. Fredrickson said:

    One of the fundamental tenets of our democracy, an independent court system that provides checks and balances on the other branches of government, was the victim of a politically motivated execution leading directly to this tragedy tonight. Had the Oklahoma Supreme Court been allowed to render an impartial ruling absent the governor's coercion and political pressure, the state would not have botched today's execution because it never would have taken place. This is sad commentary on the state of fair courts in Oklahoma.

    A week ago, the Oklahoma Supreme Court stayed the execution of two convicts so that the justices could evaluate the legality of the state's injection secrecy law. Just two days later, after Oklahoma Governor Mary Fallin claimed she would not recognize an issue ordered by the state Supreme Court and members of the legislature threatened to recall the justices supporting a stay of execution, the Oklahoma high court bowed to pressure and said the executions could proceed.

    Cohen, also a Brennan Center fellow, stated in The Week, "It was a bad week in Oklahoma - at least for anyone who values a strong and fearless judiciary."

    The nationwide trend of politicizing state courts has accelerated in recent months, as large-spending outside groups have poured huge sums into previously apolitical state Supreme Court races. Now that politicization has cost a life. 

    Fair court reform advocates have warned of the consequences of politically controlled state courts for years, as seen in the “Justice Isn’t Blind – The Influence of Special Interests on State Court” memo published by Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics

  • April 28, 2014

    by Jeremy Leaming

    Missouri recently executed its fourth inmate this year, providing a federal appellate court judge to once again raise disconcerting aspects about the state’s process of carrying out those executions. Earlier this year, The Atlantic’s Andrew Cohen noted that on more than one occasion Missouri had carried out executions of inmates before the appeals process had run its course. State officials have also come under criticism for continually shrouding its means of executing inmates in secrecy.

    The latest inmate to be executed, William Rousan, also raised constitutional concerns about Missouri’s execution process before the U.S. Court of Appeals for Eight Circuit. The entire Eighth Circuit declined Rousan’s appeal. But Circuit Judge Kermit E. Bye lodged a dissent blasting the Court for not hearing the appeal, noting the “viable constitutional claims” raised by Rousan. Circuit Judges Diana Murphy and Jane Kelly joined Bye’s dissent.

    This was not the first time that Judge Bye raised concerns about Missouri’s procedure for executing inmates. In a fall 2013 case, Bye said Missouri has a “well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions." In another death row appeals case, Bye noted the opaque nature of the state’s drugs used to kill the inmates was not helpful in deciding constitutional challenges.

    In his April 23 dissent in the most recent case, Judge Bye again noted the state’s ongoing work to “frustrate the efforts of inmates such as Rousan to investigate the method of execution the State plans to use to end their lives. Missouri shields these shadow pharmacies – and itself – behind the hangman’s cloak by refusing to disclose pertinent information to the inmates.”

    He continued, “So long as Missouri insists on carrying out executions, it is fundamentally important the State is sufficiently transparent about its protocol to allow adequate review of the constitutionality of its chosen method.”

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • October 10, 2011
    Guest Post

    By Joanne Mariner, Director, Hunter College Human Rights Program


    Anwar al-Awlaki, recently killed by a drone strike in Yemen, was a talented terror propagandist. “Intelligent, sophisticated, Internet-savvy, and very charismatic” is how a Yemeni counterterrorism official described him last year.

    The real question, though, is whether his role was much more than that, as the U.S. government has claimed. Al-Awlaki, President Obama said on the day of the strike, “was the leader of external operations for al Qaeda in the Arabian Peninsula,” a man who had taken charge of “planning and directing efforts to murder innocent Americans.” It was al-Awlaki’s operational responsibilities, not simply his oratorical skills, which were said to have sealed his fate.

    But it’s worrying that no one without access to classified information can meaningfully respond to the president’s assertions. Whatever evidence supported the government’s decision to kill al-Awlaki is secret; indeed, even the process by which this evidence was assessed has not been officially explained.

    Unlike the verdict in a criminal case, where the evidence against the defendant has been subject to challenge in adversarial proceedings before a court, the decision to kill al-Awlaki rested on undisclosed and untested grounds. For the American public, with no access to the underlying intelligence, this essentially means taking the administration’s claims on faith.

    One doesn’t have to reflect long on recent history to conclude that this is a problem. It was untested and erroneous intelligence that purported to justify the 2003 invasion of Iraq. It was also, though somewhat less notoriously, faulty intelligence that led the CIA in 2004 to kidnap German-Lebanese citizen Khaled el-Masri and hold him for five months in a secret prison in Afghanistan. And according to several federal judges it was shaky and unreliable intelligence that underlied the Bush administration’s decision to hold innocent men like Turkish citizen Murat Kurnaz in military detention at Guantanamo for years.

  • May 23, 2011

    The U.S. Supreme Court in 2001 and 2005 issued opinions limiting the ability of the federal government to detain people indefinitely because it cannot find other countries to accept them. But House Judiciary Committee Chairman Lamar Smith is preparing to introduce legislation that would circumvent those high court decisions, allowing for prolonged detention. The proposed measure will be the focus of a hearing tomorrow before the House Judiciary’s Subcommittee on Immigration Policy and Enforcement.

    Although the hearing will be stacked with witnesses likely favoring Rep. Smith’s proposal, American Civil Liberties Union of Southern California’s Deputy Legal Director Ahilan T. Arulanantham, is scheduled to provide testimony. Arulanantham has successfully litigated cases involving the detention and deportation of non-citizens. The American Immigration Lawyers Association (AILA) honored Arulanantham with its 2010 Arthur C. Helton Human Rights Award for “his body of innovative litigation and its enormous benefits for countless vulnerable non-citizens for their rights and dignity.”

    Arulanantham, author of the ACS Issue Brief, “A Hungry Child Knows No Politics: A Proposal to Reform Laws Governing Humanitarian Relief and ‘Material Support’ of Terrorism,” will challenge the calls for new legislation that would greatly expand the federal government’s detention authority.

    Arulanantham could note that the Supreme Court in Zadvydas v. Davis and Clark v. Martinez concluded that the federal government does not have the authority to hold someone indefinitely simply because it cannot remove that person to another country. The high court emphasized in its decisions that there is a grave deprivation of liberty involved with potentially permanent detention and that such deprivation of liberty without stringent procedural protections raises “serious constitutional concerns.” 

    Arulanantham's written statement submitted to the panel is available here.

    In a May 23 letter submitted to Rep. Smith and Ranking Member Rep. John Conyers Jr., nearly 100 legal scholars urge Congress “to craft legislation that will promote, rather than undermine, constitutional guarantees of due process and judicial review in this context.”

    Their letter continues:

    Rather than exacerbate current problems in the system, to the extent that Congress contemplates reforms, it should enact legislation that would enhance due process and judicial review of civil immigration detention decisions. All noncitizens who are civilly detained should have access to a hearing where the federal government must establish that their continued detention is justified. Decisions to continue noncitizens’ civil immigration detention should be subject to robust judicial review.