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December 12, 2016

With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt

I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list.  Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list.  Here are excerpts from that dissent:

Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....

Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003).  This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890).  I should hope that this kind of delay would arise only on the rarest of occasions.  But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....

<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances.  On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection.  State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623.  Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624.  The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment?  See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.

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. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)...  Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).

I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay).  Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.

December 12, 2016 at 09:45 AM | Permalink


Reading the tea leaves, Kennedy doesn't appear very enthusiastic about execution procedure cases -- Glossip v. Gloss et. al. From what one can tell from news accounts, the recent execution that a majority of the murderer's jury recommended not occur & four justices wanted to delay (and Thomas held up temporarily) didn't go that well. So, if Kennedy (hard to think if he was open to idea RBG & Sotomayor wouldn't have gone along) didn't think this case, at this point, was worth taking, don't know what one would. Unless there was some other procedural wrinkle or whatever against taking it.

Posted by: Joe | Dec 12, 2016 10:30:39 AM

Breyer clowns himself with this opinion. Here's an excerpt:

"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."

First of all, some are the worst of the worst (as if that were a legal standard instead of a description)--e.g., Cooey, Henry Hays, Arturo Resendiz and various other bad dudes. So, Breyer's statement should read that that some are not "worst of worst" and that some "worst of worst" escape death.

Putting aside that bit of sloppiness, whining about geography? Is he kidding? There is ZERO logical support for the idea that jurisdictions within a state are constitutionally required to have uniform practices for the selection of who catches a DP prosecution or that jury decisions have to have some sort of cross-murderer consistency. Jurors (or often, a single juror) can simply be merciful.

As for prosecutors---Breyer seems to forget the fact that prosecutors are human beings who view different crimes differently. What is the "worst of the worst" to one prosecutor may not be to another. The Constitution clearly does not require robotic unanimity of a thought process.

What points up the sheer idiocy of Breyer's view--if one jurisdiction in a state chose never to seek death, then no other jurisdiction in the state could.

Posted by: federalist | Dec 12, 2016 10:46:20 AM

Will no one defend Breyer? Ha ha ha ha.

Posted by: federalist | Dec 13, 2016 9:55:31 AM

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