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March 8, 2017

Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:

Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....

As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.

“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.

The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.

Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.

Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:

Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....

Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.

If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

March 8, 2017 at 11:58 AM | Permalink


Remember when Breyer was nominated? He was supposed to be this big-time intellectual counterweight to Scalia . . . . Um, not.

This is unadulterated drivel. First of all, even if the long-term solitary violates the Eighth Amendment, Breyer doesn't show how that would require the vacatur of the death sentence.

Second, this idea of "attributable to the State"--what does that even mean? It appears to be borrowed from Speedy Trial jurisprudence, and is the idea to import all of the day counting?

Third, yeah, being on the row sucks. If four weeks is horrible, but ok, why would 20 years be unconstitutional? Simple time delay? But that's built into modern criminal law jurisprudence--appeals take years, so is a decade ok, but two decades not ok? Is the rule that the state has to minimize the time waiting--but if waiting is so bad, then why does what the State does matter?

It will be nice when Breyer leaves the Court. He is a joke.

Posted by: federalist | Mar 8, 2017 1:30:49 PM

It seems there are two issues best not confused. One is solitary confinement in general. Justice Kennedy wrote about this in the past year or two (I don't remember specifically when) hinting that he thought solitary confinement was cruel and unusual. I agree I don't think the remedy for this is vacating the death sentence but, in an appropriate case, a court could order solitary confinement ended.

The other is the length of delay pending execution or, in Justice Breyer's case, the length of delay in solitary confinement. The Ninth Circuit (iirc) raised similar concerns recently. The problem with their argument is it suggests less due process is a better system. Breyer seems to at least distinguish that by referring to delay in solitary confinement. I don't necessarily agree with the argument, but I can see a plausible argument that it's cruel and unusual to hold somebody in solitary confinement awaiting execution for an extreme period of time. Therefore, it would follow that holding someone in solitary confinement awaiting execution for an extreme period of time and then killing them would be worse. The remedy would be to release them from solitary confinement and not kill them. I do think length of delay attributable to the government is relevant since a defendant can't approbate and reprobate. He can't cause a delay and then claim the delay was punishment.

Anyway, I suspect the former argument has a much greater chance of success than the latter.

Posted by: Erik M | Mar 8, 2017 2:16:30 PM

Kennedy on solitary confinement:


The two claims here overlapped: "lengthy [death row] incarceration in traumatic conditions." They can be separated; people in solitary also repeatedly aren't on death row. A person can be in solitary in a LWOP sentence or in some other situation.

[Curiously, various people related to this "hit" were given life sentences, two at least by plea deal, one released in 2011.]

"The problem with their argument is it suggests less due process is a better system."

Not necessarily. Breyer expanded on the point in his Glossip dissent. The long delays arise from various reasons [e.g., repeatedly, the state shows no rush in dealing with appeals and its own misdeeds cause delays including during the appeals process] but ultimately Breyer points out that reducing delays by less due process itself will lead to injustices. It might be a "better system" if a person thought execution was a compelling state interest even with all the problems; Breyer does not.

"attributable to the State"

Breyer cites a lower court opinion. Breyer et. al. has discussed how a long time on death row matters. Multiple Breyer and Stevens dissents from cert. have examined this issue from the 1990s for those who want more citations. For instance, the longer on death row, the less the retributive interest. Also, special harms on the prisoner has long been cited.

Since the 8th Amendment etc. is a bar on the state, it matters that the government is the one causing the harm here. Again, I speak of obvious things, but they keep on coming up. As to how much is too much, that would be a matter of degree like so much would be. When you reach twenty, thirty or so years, it gets harder, especially if the person is in solitary all the time. And, Breyer notes the person is in solitary here merely because he was sentenced to death. So, connected.

Posted by: Joe | Mar 8, 2017 3:19:56 PM

"I do think length of delay attributable to the government is relevant since a defendant can't approbate and reprobate."

But what does it even mean? Breyer says that the court delays are attributable to the State? How? And how does that translate into judicially enforceable rights?

Posted by: federalist | Mar 8, 2017 3:20:15 PM

I agree with Federalist. Breyer is a joke, as are the other liberal justices. We need 9 justices who are exactly like Clarence Thomas. Oral arguments would go for 1 hour with no questions being asked. After all, no need for questions, much less answers.

Posted by: anon | Mar 8, 2017 3:24:31 PM


I agree with you after reading Breyer's dissent that the issues of solitary confinement and delayed execution are separate. It appears Ruiz first brought up the issue of the prison conditions (solitary confinement) only recently in the 5th Circuit and the court claimed the proper avenue for redress of that concern was a 1983 suit. It mentioned that Ruiz is a named plaintiff in a 1983 suit regarding the method of execution but when the suit was filed over a year ago he did not bring up the issue of conditions in solitary, which if he had they could have been litigated. The San Antonio Express News (http://www.expressnews.com/news/local/article/25-years-later-San-Antonio-man-executed-in-10985187.php) reported that in 1999 a group of inmates (it appears death row inmates?) tried to escape and as a result Texas transferred all the death row inmates at that facility to another facility and placed them in 23hr solitary. It seems a bit drastic to go from allowing these inmates to socialize (pre-escape) to placing them in solitary and then never reexamining the decision, even after 25 years. I'm sure the Texas DOC has its reasons, but it would seem that may warrant a 1983 challenge.

With regards to the execution delays I am baffled at what an appropriate solution should be to this issue. In its 3/5/2017 opinion the 5th Circuit wrote: "Ruiz's claims have been heard and, from top to bottom, found meritless. Working in the harness of statutory and settled common law rules, the federal and state courts have done handsprings to protect Ruiz's procedural and substantive rights. This Court has stayed his execution twice before to allow full consideration of his claims. His most recent claims do not warrant a third stay." My eyes started to gloss over trying to make sense of 20 years of procedural history as Ruiz kept bringing up new claims in state and federal courts (after direct appeals) and would then litigate them up and down the line. I fully understand that Ruiz does not want to die. I get it. The will to survive is innate and will result in men doing everything and anything they can to prolong death. But the reality is that the death penalty is legal in Texas (and other states). Whether one agrees with the death penalty or not it is constitutionally allowed in some states. In other words, a discussion on delays of execution requires accepting the premise that the death penalty is currently constitutional and permissible (I omit my own views on the death penalty as they are simply not relevant in this context).

So, if Ruiz is sentenced to death as punishment for his crime, and that sentence is in fact constitutional under the law at the time, then at what point does the interest of due process for the defendant turn into excessive delay on death row? And, most importantly, what role should be assigned to the part of the defendant if part of the delay is because of repeated habeas claims that are found to be meritless but yet litigated through state and federal courts? In other words, but for Ruiz (through counsel) filing repeated habeas and procedural claims he would not have endured such an excessive delay of execution. I am not saying Ruiz should be denied direct appeals of his case and due process, but it seems that the crux of the issue is how we should define "due process" in this context. If I were to place myself in the position of a Governor of a state that had the death penalty I can appreciate the frustration of trying to enforce the jury verdict when the defendant continues to file legal claims, and then 15-20 years later argues that the death penalty is unconstitutional because of how long it has taken. My approach to these questions states as a premise the lawfullness of the death penalty because if one is opposed to the death penalty they are likely to be okay with the procedural delays as they are a means of striking down the death penalty. While those individuals are certainly free to oppose the death penalty and to campaign against it on the merits (and maybe I myself am against it?), I believe it necessary to set aside that belief to prevent attempts to undermine the discussion of process in carrying it out.

Hanging an offender immediately after trial would be at one end of the continuum and would maximize deterrence and efficiency at the cost of due process while allowing limitless habeas petitions until the offender dies in prison would be at the other end and maximize due process at the expense of deterrence and efficiency. Where is the ideal point on that continuum?

Posted by: Sean | Mar 8, 2017 3:40:00 PM

Weak defense, Joe. That the sentence and the solitary connected from a causal standpoint does not mean that vacatur of the death sentence is the appropriate remedy. You're just adding to the idiocy.

As for the length of time on the row and the retributive interest, putting aside the "run out the clock" issue, the "attributable to the state" and "government causing the harm" is really a stretch---first, it's strictly speaking not harm to the condemned that the state's retributive interest declines (even if that's true), and second, the "government causing the harm" argument presupposes that a guy who gets a death sentence overturned won't ever get to get it, as all of the time under which he spent under the original death sentence was "chargeable to the state" (no matter, of course, that he would have been incarcerated anyway). If Breyer is going to throw out this crap, he should at least show that he understands the implications.

We get it---he doesn't like long stays on the row, but given how long it takes to, so to speak, get to death (which includes federal habeas, which is now chargeable to the state????) his position is really one that says no death penalty.

This is dishonest, and it is unbecoming of a Supreme Court Justice. The rest of the Court should call him out in no uncertain terms.

Posted by: federalist | Mar 8, 2017 3:43:10 PM

"That the sentence and the solitary connected from a causal standpoint does not mean that vacatur of the death sentence is the appropriate remedy."

Mere connection alone is not all that is offered to argue that it is the appropriate remedy.

This issue has been raised in the past repeatedly by Breyer (in Glossip joined by Ginsburg) and Stevens. Not to worry. They received some pushback from Scalia and Thomas at the very least. At any rate, an early case here was Lackey v. Texas (Memorandum of Justice Stevens respecting the denial of certiorari). British precedent was cited, but an example, applying comparable rules as found in the US. Now, maybe they all are wrong. But, Breyer is far from alone here.

The "clock" runs for various reasons, including repeatedly because the government puts things on the back burner or acts in various ways that causes delays such as not adequately protecting the rights of the defendant, resulting in extended appeal time. This alone makes it reasonable to attribute things to the state. Even if the state did nothing wrong but a death sentence would take that long for various reasons, the state is still behind the death sentence. Ultimately, it is "attributable to the state" and it is "causing the harm." The question is if the harm is legitimate to the interests at hand.

If the state's retributive interest declines too much, the death sentence might no longer be a legitimate one, which would be a harm to the defendant. What "second" means is unclear to me. The claim here is that at a certain point a long time under a sentence of death especially while in solitary makes the death sentence itself illegitimate. Not that the person can just get out of prison -- it is the state of limbo in solitary here waiting for death that is explained to be particularly cruel and unusual. What Breyer, Stevens, the Law Lords in the Jamaica case etc. is not understanding is unclear to me.

Breyer (with RBG) in Glossip did use this issue along with others to show that the death penalty is unconstitutional. Where is this "dishonesty"? But, it isn't necessarily true that it is always unconstitutional no more than saying those under 14 could not be executed would be. There are plenty of cases where people are executed in much less time -- I have seen repeated cases where it was under 10 years.

Posted by: Joe | Mar 8, 2017 5:24:29 PM

Breyer (with RBG) in Glossip did use this issue along with others to show that the death penalty is unconstitutional. Where is this "dishonesty"?

Because, Joe, to accept Breyer's position here is to accept that the death penalty cannot be administered. So instead of that naked abolitionism, he couches his position with the fake backdrop of having a working death penalty. That's dishonest.

Some other BS:

"If the state's retributive interest declines too much, the death sentence might no longer be a legitimate one, which would be a harm to the defendant."

Posted by: federalist | Mar 8, 2017 6:36:35 PM

"he couches his position with the fake backdrop of having a working death penalty"

Don't think so. Breyer read a dissent from the bench, partially based on this very issue, to send the message that the death penalty is unconstitutional. He doesn't think we have a "working death penalty." He's not hiding the ball.

This is pointed out as a specific problem. And, it isn't even necessarily the case that the death penalty would have to go if it required people on death row for twenty years or something. Three people executed this year was on death row for 13 or less. One of the foreign law examples cited didn't result in the end of the d.p. there.

Mere assertions on why something is b.s. is of limited help. The death penalty is largely in place for retributive reasons. This is key to it being a legitimate penalty. If the the retributive is too small and there are other problems with the penalty (such as the trauma cited by repeated judges, experts etc. in this context, trauma above and beyond simple prison time), it very well might be an unconstitutional harm.

There is obviously disagreement. But, mere assertion is pretty weak disagreement.

Posted by: Joe | Mar 8, 2017 7:43:19 PM

Joe, on this blog, you turn tail and run just about every time---you serve up some pablum, get called out and bail.

With respect to that dim bulb Breyer (and you), you never explain why made-up unconstitutionality about solitary confinement would obviate a death sentence when the remedy would simply be to cease the solitary confinement. If the argument is that when the state steps over the line and inflicts an unconstitutional punishment (in terms of conditions of confinement), then that will have to run in the face of lots of law that doesn't reduce a sentence because a prison guard unconstitutionally beats up a prisoner. In other words, a prison policy or wayward guard doesn't get to undo a judgment. Now, of course, if the court finds prospectively that jail populations must be reduced, then sentences will get reduced (possibly), but there's no substantive right.

Second, the idea that we can have this "must be executed within a certain time" etc. is simply antithetical to a working death penalty. Breyer knows this, and he really ought to just join Brennan and Marshall instead of serving up the nonsense.

As for the retribution thing---good grief. First of all, there are other rationales for death sentences. Second of all, the made-up Eighth Amendment "jurisprudence" speaks to separating out murder simpliciter from capital murder by way of moral culpability, character of defendant and some disqualifying stuff. It doesn't speak in terms of attenuated "retribution" unless we're going to make up more crap. Lastly, even if we accept that the state's interest drops, arguably the victims' family's interest increases. And you still have deterrence and incapacitation. Hey, since we're making stuff up . . . I can bring in the victim's family's interests (9-0 SCOTUS decision by the by stated that victims' families have an interest in enforcement).

As for the attributability to the state---god, that's just stupid. Stupid. If the state's retribution interest drops, it drops whether or not the state has "caused" a delay or not. If being on the row for a long time is so bad, it's bad no matter why the stay is so long.

Joe, this isn't hard. But then again, you cannot support so many of the 'rat stays.

Posted by: federalist | Mar 8, 2017 8:20:24 PM

Pro tip: just because you don't agree with someone and want to keep going in circles rehashing the same words, that person isn't scared of your argument, just through dealing with you. Life skills 101.

Posted by: Mark M. | Mar 8, 2017 8:45:04 PM

Mark, you're an idiot. You've proven that over and over again.

Posted by: federalist | Mar 9, 2017 7:19:59 AM

The data show solitary confinement benefits the prisoner.

Posted by: David Behar | Mar 9, 2017 9:08:29 AM


This is so obvious.

It's not the state's fault. It's no the death penalty's fault.

The judges are the case managers.

Is Breyer unaware?

Virginia has executed 111 since 1976, within 7 years of appeals on average.

Responsible judges can manage appeals of 2-3 years, on average, per court, state supremes, fed district, and fed circuit. SCOTUS cases are more rare.

Why is that not obvious to Breyer?

Judges in Ca, Pa and others are doing all they can to end executions.

Posted by: Dudley Sharp | Mar 9, 2017 2:59:36 PM

Haha! Your best "thinking" came up with that. Cha-ching...

Posted by: MarK M. | Mar 9, 2017 10:59:10 PM

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