Monday, April 28, 2008

Justice Stevens Renounces Capital Punishment But For Lethal Injection/Cruel and Unusual History

Justice Stevens Renounces Capital Punishment

By Linda Greenhouse

New York Times

April 18, 2008

WASHINGTON - When Justice John Paul Stevens intervened

in a Supreme Court argument on Wednesday to score a few

points off the lawyer who was defending the death

penalty for the rape of a child, the courtroom audience

saw a master strategist at work, fully in command of the

flow of the argument and the smallest details of the

case. For those accustomed to watching Justice Stevens,

it was a familiar sight.

But there was something different that no one in the

room knew except the eight other justices. In the

decision issued 30 minutes earlier in which the court

found Kentucky 's method of execution by lethal injection

constitutional, John Paul Stevens, in the 33rd year of

his Supreme Court tenure and four days shy of his 88th

birthday, had just renounced the death penalty.

In an opinion concurring with the majority's judgment,

Justice Stevens said he felt bound to "respect

precedents that remain a part of our law." But outside

the confines of the Kentucky case, he said, the time had

come to reconsider "the justification for the death

penalty itself."

He wrote that court decisions and actions taken by

states to justify the death penalty were "the product of

habit and inattention rather than an acceptable

deliberative process" to weigh the costs and risks of

the penalty against its benefits.

His opinion, which was not separately announced in the

courtroom, was the culmination of a remarkable journey

for a Republican antitrust lawyer.

During his tenure, Justice Stevens, originally an

opponent of affirmative action, has changed his views on

that and other issues. "Learning on the job is essential

to the process of judging," he observed in a speech in 2005.

But it is on the death penalty that his evolution is

most apparent. He was named to the Supreme Court by

President Gerald R. Ford at a time when ferment over

capital punishment was at a peak. Less than four years

earlier, the court had invalidated every death penalty

statute in the country, and states were racing to draft

laws that would test the court's tolerance for a fresh start.

In July 1976, little more than six months after taking

his seat, Justice Stevens announced the opinion for the

court in Jurek v. Texas , one of the three cases by which

the justices gave their approval to a new generation of

death penalty statutes. The defendant, Jerry Lane Jurek,

had been convicted of kidnapping a 10-year-old girl from

a public swimming pool and then raping and killing her.

The new justice's opinion described the crime in vivid

detail before concluding that Mr. Jurek's death sentence

was constitutional because " Texas has provided a means

to promote the evenhanded, rational and consistent

imposition of death sentences under law."

During the child rape argument on Wednesday, it was the

lawyer for Louisiana who was giving the vivid

description of the crime, recounting in grisly anatomic

detail the injuries inflicted on an 8-year-old girl by

her stepfather, the convicted rapist challenging the

state's death penalty law. As justices and the courtroom

audience cringed, the air seemed to leave the room,

along with any points the defendant's lawyer had managed

to make in his initial turn at the lectern.

Justice Stevens had remained silent during that first

half of the argument, but now he pounced. "Could you

clarify?" he began, interrupting the state's lawyer,

Juliet L. Clark. "Were those injuries permanent?"

He knew the answer, of course: the record of the case

indicated that the girl's physical injuries had healed

in two weeks. His point was to bring the anatomy lesson

to an end and refocus the argument on the legal issues.

If it was also to throw the state's lawyer off stride,

he succeeded in that as well. Ms. Clark, reluctantly

conceding that the injuries had healed, shifted to her

legal arguments. Justice Stevens's mild expression and

tone never changed.

His renunciation of capital punishment in the lethal

injection case, Baze v. Rees, was likewise low key and

undramatic. While reminiscent of Justice Harry A.

Blackmun's similar step, shortly before his retirement

in 1994, Justice Stevens's opinion lacked the ringing

declaration of Justice Blackmun's "From this day

forward, I no longer shall tinker with the machinery of

death." Justice Stevens's strongest statements were not

in his own voice, but in quotations from a former

colleague, Justice Byron R. White, an early death

penalty opponent.

But Justice Stevens was not so restrained last June in

an opinion dissenting from a decision that in retrospect

appears to have been, for him, the final straw. In that

case, Uttecht v. Brown, a 5-to-4 majority gave state

courts great leeway in death penalty trials to remove

jurors who express even mild doubt about capital punishment.

"Millions of Americans oppose the death penalty" and yet

can serve as conscientious jurors, Justice Stevens

objected then, adding that the majority "has gotten it

horribly backwards" in enabling prosecutors to weed them out.

In his opinion on Wednesday, Justice Stevens said the

Uttecht decision was "of special concern to me," and

used it to explain his journey from Jurek v. Texas to

Baze v. Rees. Those who voted to uphold the death

penalty in 1976, he said, "relied heavily on our belief

that adequate procedures were in place" to treat death

penalty cases with special care so as to minimize bias and error.

"Ironically, however," he continued, "more recent cases

have endorsed procedures that provide less protections

to capital defendants than to ordinary offenders."

In other words, capital punishment had become for him,

in the court's hands, a promise of fairness unfulfilled.

One of the court's most frequent dissenters throughout

his tenure, Justice Stevens, an optimist at heart, does

not look back on every loss with such a sense of

stinging disappointment. In 1989, he dissented

vigorously from the court's decision in Texas v. Johnson

that flag-burning is a form of expression protected by

the First Amendment. While he still believes he was

right, he told a Chicago audience of lawyers in 2006, he

sees a silver lining: flag-burning has all but disappeared.

"What once was a courageous act of defiant expression,"

he said, "is now perfectly lawful, and therefore is not

worth the effort."

April 23, 2008

Op-Ed Contributor

Cruel and Unusual History - New York Times


THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky ’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.”

But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation’s landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.

The first of those landmark cases, the 1879 case of Wilkerson v. Utah , was cited by Justice Clarence Thomas, in his concurring opinion in the Kentucky case. The court “had no difficulty concluding that death by firing squad” did not amount to cruel and unusual punishment, Justice Thomas wrote.

Wallace Wilkerson might have begged to differ. Once the Supreme Court affirmed Utah ’s right to eradicate him by rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A sheriff gave the command to fire and Wilkerson braced for the barrage. He moved just enough for the bullets to strike his arm and torso but not his heart.

“My God!” Wilkerson shrieked. “My God! They have missed!” More than 27 minutes passed as Wilkerson bled to death in front of astonished witnesses and a helpless doctor.

Just 11 years later, the Supreme Court heard the case of William Kemmler, who had been sentenced to death by electric chair in New York . The court, in affirming the state’s right to execute Kemmler, ruled that electrocution reduced substantial risks of pain or “a lingering death” when compared to executions by hanging. Kemmler, had he lived through the ensuing execution (and he nearly did), might too have disagreed.

After a thousand volts of current struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He was still breathing. Saliva dripped from his mouth and down his beard as he gasped for air.

Nauseated witnesses and a tearful sheriff fled the room as Kemmler’s coat burst into flames.

Another surge was applied, but minutes passed as the current built to a lethal voltage. Some witnesses thought Kemmler was about to regain consciousness, but eight long minutes later, he was pronounced dead.

Perhaps the most egregious case came to the court more than 50 years later. “Lucky” Willie Francis, as the press called him, was a stuttering 17-year-old from St. Martinville , La. In 1946, he walked away from the electric chair known as “Gruesome Gertie” when two executioners (an inmate and a guard) from the state penitentiary at Angola botched the wiring of the chair.

When the switch was thrown, Francis strained against the straps and began rocking and sliding in the chair, pleading with the sheriff and the executioners to halt the proceedings. “I am n-n-not dying!” he screamed. Gov. Jimmie Davis ordered Francis returned to the chair six days later.

Francis’ lawyers obtained a stay, and the case reached the Supreme Court. Justice Felix Frankfurter defined the teenager’s ordeal as an “innocent misadventure.” In the decision, Louisiana ex rel.

Francis v. Resweber, the court held that “accidents happen for which no man is to blame,” and that such “an accident, with no suggestion of malevolence” did not violate the Constitution.

Fewer than 24 hours before Francis’ second scheduled execution, his lawyers tried to bring the case before the Supreme Court again. They had obtained affidavits from witnesses stating that the two executioners from Angola were, as one of the witnesses put it, “so drunk it would have been impossible for them to have known what they were doing.”

Although the court rejected this last-minute appeal, it noted the “grave nature of the new allegations” and encouraged the lawyers to pursue the matter in state court first, as required by law.

Willie Francis was executed the next morning. Because his case never made it back to the Supreme Court, the ruling lingers, influencing the decisions of today’s justices. In his majority opinion last week, Chief Justice Roberts called Louisiana ’s first attempt at executing Francis an “isolated mishap” that “while regrettable, does not suggest cruelty.”

Justice Clarence Thomas, writing separately, also mentioned the Francis case: “No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction.” In fact, Louisiana did just that. Two weeks after the botched execution of Willie Francis, its Legislature required that the operator of the electric chair “shall be a competent electrician who shall not have been previously convicted of a felony.”

This law would have prohibited both executioners from participating in Francis’ failed execution.

The court’s majority opinion in the Willie Francis case acknowledged, “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Yet the Supreme Court continues to flout that standard.

In its ruling last week, the court once more ignored the consequences of its rulings for men like Wallace Wilkerson, William Kemmler and Willie Francis. The justices cited and applied Wilkerson’s and Kemmler’s cases as if their executions went off without a hitch.

And 60 years after two drunken executioners disregarded the tortured screams of a teenage boy named Willie Francis, the Supreme Court continues to do so.

Gilbert King is the author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”

Copyright 2008 The New York Times Company

No comments: