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Dec. 13 — Alabama put a convicted murderer to death Dec. 8 just hours after the U.S. Supreme Court twice blocked the procedure and then twice cleared the way for the execution to proceed ( Smith v. Alabama , U.S., No. 16-7070, stay denied 12/8/16 ).
The unusual flurry of eleventh-hour petitions and deliberations suggests that the court remains deeply and evenly divided on the question of capital punishment.
The court’s four Democratic appointees—Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan—all voted to extend the temporary stay of execution granted to Ronald B. Smith, but apparently couldn’t persuade a so-called “courtesy fifth” vote from any of their colleagues that would’ve postponed the execution until the court reviewed the merits of his petition.
Just days later, on Dec. 12, the divide revealed itself again when Breyer took his colleagues to task for not reconsidering the constitutionality of the death penalty itself in an unrelated case involving Henry Perry Sireci, a Florida inmate who has been on death row for 40 years.
“When he was first sentenced to death, the Berlin Wall stood firmly in place,” Breyer wrote in his dissent from a denial of certiorari in Sireci v. Florida, U.S., No. 16-5247, cert. denied 12/12/16.
Breyer also pointed to recurring problems with the fumbling manner in which lethal injections are often administered and the struck-by-lightning randomness of death sentences.
“As I and other Justices have previously pointed out, individuals who are executed are not the ‘worst of the worst,’ but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race,” Breyer said.
Shortly before Smith was scheduled to be executed by lethal injection, Justice Clarence Thomas issued a temporary stay, presumably to give the full court an opportunity to review the merits of Smith’s petition.
Four of the justices felt that Smith’s petition warranted further deliberations, but they couldn’t persuade a fifth justice to join them in extending the stay, even under the court’s tradition of a “courtesy” fifth vote.
In the past, the court has employed the so-called “courtesy fifth” whenever there are four votes to hear a death row inmate’s appeal and another justice steps up to deliver the fifth vote needed to stay the execution.
But that’s an informal practice and it isn’t clear why it wasn’t used in this case.
An Alabama jury recommended by a vote of seven to five that Smith be sentenced to life in prison without the possibility of parole for killing a convenience store clerk in 1994. The judge, however, sentenced him to death under the state’s unique capital-sentencing procedure which permits certain judicial overrides.
In 2015, in Hurst v. Florida, No. 14-7505, 2016 BL 7258 (U.S. Jan. 12, 2016), the U.S. Supreme Court invalidated the judicial override procedure used in Florida.
The Alabama Supreme Court three months ago ruled that Hurst didn’t invalidate Alabama’s capital-sentencing scheme by giving judges too much power to ignore the jury’s recommendations because juries—not judges—are tasked with making the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible ( Bohannon v. State, No. 1150640, 2016 BL 325208 (Ala. Sept. 30, 2016)).
Smith’s lawyers got Thomas to issue a second temporary stay, arguing that the court should reconsider its “inconsistent practices respecting 5-4 denials in capital cases,” which clash with the concept of “equal justice under law.”
The four-member vote rule for certiorari grants was designed to increase the likelihood that an unpopular litigant or issue would be heard in the court of last resort, the petition argued. But death row inmates don’t get this benefit of the doubt when the court adheres to the five-vote rule regarding stays of executions.
“In other words, every litigant in the country gets the benefit of the Rule of Four, except those whose claims should have the highest call on the judicial conscience,” the petition said.
Thomas is the justice who has jurisdiction over petitions coming out of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas.
The petition pointed out that Chief Justice John G. Roberts Jr. in November provided the necessary fifth vote to delay a separate Alabama execution—even though he said he thought it should go forward. Roberts characterized his vote as a “courtesy” to his four colleagues who wanted to block the execution until the court decided whether to take the inmate’s appeal.
Lawyers for Smith also argued that Alabama’s lethal-injection protocol violated the ban against cruel and unusual punishment.
The court again denied the motion; but this time there was no recorded discord.
The Federal Defenders for the Middle District of Alabama represented Smith. The Alabama Attorney General’s Office represented the state.
To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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