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July 26, 2007

Death and the Sixth Circuit

I am consistently impressed with the Sixth Circuit work on non-capital sentencing issues (some recent examples are here and here and here and here).  However, everyone else notices the deep and somewhat ugly divisions within the court on death penalty cases.  These divisions were revealed again through the circuit's en banc 8-6 vote to uphold a death sentence in Getsy v. Mitchell, No. 03-3200 (6th Cir. July 25, 2007) (available here), a death sentence that the original panel had set aside as unconstitutionally disproportionate.

Lots of commentary can be found at ODPI and at DotD and at The Volokh Conspiracy and at Infinity Ranch.  Ahh, if only the circuit's (more consequential) non-capital decisions would get so much thoughtful attention.

Related prior post:

July 26, 2007 at 12:17 AM | Permalink


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Since the Constitutional application of the Law to the Death Penalty, AND the responsibility to apply JUSTICE in respect of that, is the single most important task of the 6th Circuit (and all others), it is RIGHT that attention should focus on its death penalty decisions. Especially so since the Supreme Court so consistently ignores the appeals of those whose case apparently raises no unique point of law. While so many judges/justices continue to make or not make decisions based on their political allegiance and leaning rather than a concern for LIFE and JUSTICE, it is right that the legal profession and public try to hold them to account.

Posted by: Peter | Jul 26, 2007 5:25:14 AM

Peter, that's silly. Most people would concede that the death penalty is an important issue, and that the state shouldn't execute someone without proper procedural and substantive safeguards.

The problem is, though, that there are limited resources out there. For every convicted murderer who's lost all of his direct appeals and wants a federal court to let him die in prison instead of in the electric chair, there are hundreds of thousands of other people out there who have stronger claims to the effect that they've been punished unfairly. While every judge on the courts of appeals will spend a ridiculous amount of time looking at the cases in the former category, cases in the latter category get relatively little attention, because there is a limit on our resources. Those other people deserve to have a decision based on "LIFE and JUSTICE" too, and many of them arguably aren't getting it because some murderer needs his tenth bite at the apple.

On which cases the bloggers pay attention to, I note that this is an en banc case with spirited dissents. The bloggers would probably comment on such a case regardless of whether it involved the death penalty or some arcane issue of trust law.

Posted by: | Jul 26, 2007 9:46:41 AM

The dissent's "analysis" in this one is pathetic, and one has to wonder how any positions on the death penalty taken by the dissenters in other cases can be taken seriously. Does anyone really believe that "clearly established law" required that one accomplice get the benefit of an acquittal of another accomplice by a separate jury? Hell, even Stevens probably wouldn't have gone for that one.

This is just, yet again, another example of liberal judges who hate the death penalty trying to overturn it by judicial fiat.

Posted by: federalist | Jul 26, 2007 11:54:39 AM

Getsy is a fairly typical capital case where the question is on the penalty to be imposed on a clearly guilty murderer. That is an important question, to be sure, but I do not understand why so many people think that is more important than questions related to actual guilt or innocence in noncapital cases. Isn't the imprisonment of an innocent person a greater injustice by far than the execution of a guilty murderer, regardless of what mitigation he may offer?

I was wondering, BTW, how the dissenting judges would deal with the fact the other circuits to consider the question have concluded that there is no rule of consistency in the due process clause. The survey of the legal landscape that the Supreme Court says is required shows many decisions consistent with the state court decision in this case, which is generally sufficient under both Teague and AEDPA to preclude a collateral attack. The dissent's brilliant rebuttal: just ignore them.

Posted by: Kent Scheidegger | Jul 26, 2007 6:13:42 PM

For whatever reason, capital punishment gets liberal jurists flustered. That makes them predisposed to buy the most outlandish arguments to save a murderer from the punishment he richly deserves. See, e.g., Breyer's support of the ability of death row inmates to run out the clock. Plus, liberals see capital punishment as the apotheosis of what's wrong in America, i.e., that it's racist and classist, despite the fact that non-Hispanic white murderers are more likely to be executed than black murderers. Finally, it's just sexy to be opposed to capital punishment. How better to morally preen than to stand up for a bunch of killers.

Posted by: federalist | Jul 26, 2007 7:19:28 PM

What is actually "silly" is that the US persists with a Capital Punishment program in the face of the greater legal issues that you describe. Just as the "time" and the "resources" spent on the process of Capital Punishment appear to be disproportionate, so is the policy - which itself is driven by a perceived political advantage. This whole argument comes down to disproportion - something that the US Justice/Political system has allowed to skew to an unprecedented level because of the inadequacy of efforts to implement alternative programs of social/criminal disorder. Efforts to promote and maintain the status quo (the Death Penalty) only hinder the very considerable reforms that are necessary to restore proportion and JUSTICE to the entire legal process.

Posted by: Peter | Jul 27, 2007 3:55:06 PM

Too bad Gilman went over to the dark side.

Posted by: Gray Proctor | Jul 28, 2007 9:50:58 PM

Gray, is following the law, the "dark side"? Actually, if Gilman had voted to uphold the District Court, this likely would have gone to Supreme Court, where Getsy's position may have garnered one vote (and only then if Stevens' law clerks could have figured out a way to make the decision not that embarassing--of course, Stevens' threshhold for embarrassing opinions is pretty high, as his paean to driving on two lane roads showed).

Posted by: federalist | Jul 30, 2007 10:21:07 AM

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