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April 21, 2017

Arkansas finally navigates litigation to complete one execution

As reported in this new Washington Post piece, "Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection." Here is more:

The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.

As part of its aggressive scheduling, which the state attributed to expiring lethal-injection drugs, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock.  But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.

Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.

Lee’s execution was confirmed by state officials. His time of death was 11:56 p.m. local time, according to the Associated Press, which had a reporter serve as a media witness. He is the seventh person executed in the United States so far this year....

Appeals filed ... for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.

The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals. Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.

According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later....

Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.

Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire. “I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”

The brief dissents authored by Justices Breyer and Sotomayor in one of the capital cases coming from Arkansas are available here and here.

April 21, 2017 at 01:30 AM | Permalink


Breyer's opinion is a joke. The learned Justice apparently forgot that the state (and victims' families) have an interest in enforcement of criminal judgments. And the intimation that the selection of the inmates for execution was "at random"--good God, does a Supreme Court Justice actually put that nonsense in writing?

This guy needs to retire ASAP. He is a joke.

Posted by: federalist | Apr 21, 2017 9:00:56 AM

And it looks like the execution went off without a hitch

Posted by: federalist | Apr 21, 2017 9:47:10 AM

"The learned Justice apparently forgot that the state (and victims' families) have an interest in enforcement of criminal judgments."

Unclear. Breyer determined these specific criminal judgments were being applied in an unconstitutional way. Judges of all ideologies do that from time to time. Sometimes, like the state judges cited in a past thread, people disagree with judicial decisions. Citing "an" interest to enforce criminal judgments doesn't add much. That's obvious. There is also "an" [obvious] interest to violate the Constitution.

As to "random," yes, judges and justices have said that executions were done in a way (to quote his words) "close to random." Not, "at random," in the sense of taking names out of a hat. So, Justice White in Furman v. Georgia noted the system at the time was applied where "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Close to random. Or, as Justice Stewart said, akin to being struck by lightening.

Lots of judges, lawyers, academics, social scientists, etc. over the last four decades spelled out why this is correct. How it is not "nonsense" that a process where a few really bad people among a large number are executed. It does to many seem a tad random. A stupid joke, yes.

As to going off without a hitch, there has already been numerous cases where it has not. The legitimacy of the Russian Roulette process in question is open to question. This assuming it went off without a hitch (early reports of government action has been a mixed bag), including given the nature of lethal injection where it can possibly be very painful without other people knowing it.

Posted by: Joe | Apr 21, 2017 10:27:11 AM

There is also "an" [obvious] interest to violate the Constitution.

Well, not really. That's the question. One where both states and federal courts have split closely in the last few days.

The passion about the stupidity of the whole thing also has split people. Both ways.

Posted by: Joe | Apr 21, 2017 10:29:17 AM

"Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now?" Um, because Arkansas has an interest in enforcing its criminal judgments.

Nice try on the selected at random nonsense, Joe. Those cases were about the selection of people for the death penalty, not the choosing of which of the condemned gets the big jab.

As for your idiocy (and yes it is idiocy) about the "process" by which a few bad guys get selected out of many--remember, there is a meaningful basis--it just produces end results that look incongruous. And the incongruity results from things like single-juror vetoes, plea bargains, unexplained mercy and what have you. (Kinda like criminal convictions generally, other than the veto.) The gee, all these guys got life and this guy got death therefore the process is unconstitutional is silly argumentation because it ignores the procedural protections that allow for the incongruity, procedural protections which are either required by the constitution or allowed by the constitution.

You can defend Breyer all you want--he's a hack. Seriously, Arkansas is constitutionally barred from executing 8 guys in a short amount of time solely based on the frequency? That's just making it up as you go. Nothing that comes out of those chambers can be trusted.

Posted by: federalist | Apr 21, 2017 12:15:31 PM

Fed. I have to agree with Joe. There is an appearance of a lottery going on. That is why I support mandatory death sentencing guidelines, to be determined by judging robots in accordance with legislatively written algorithm.

Posted by: David Behar | Apr 21, 2017 12:47:46 PM

The last comment has a sort of truth to it though it has a satiric flavor.

Of course, humans run the system in place. Whatever process used will be imperfect. Seeing the various updates, in real time basically, put forth over at by Chris Geidner (found on Twitter) at Buzzfeed, didn't seem idea.

And, no, I don't think it is merely the fault of those against the death penalty, including the defendants and their lawyers here. The time restraints because of the shelf life of the drugs, cited by Breyer, did aggravate the problem.

Posted by: Joe | Apr 21, 2017 1:52:28 PM

In Arkansas, a rush to kill
The Observer editorial board 20 April 2017
The bankruptcy of the death penalty is on full display in Arkansas this week.
State officials there are rushing to execute seven men within 10 days. This potential flurry of state-ordered killings isn’t happening because there’s a significant chance the seven men pose any sort of danger in prison, or that they are on the verge of escaping and committing violence throughout the land.
The reason Arkansas planned to go on a binge of unnecessary killings? The drug it uses in executions is about to expire and the state may not be able to legally buy more.
In 21st century America, a man’s fate could be determined by the “If used by” date stamped on the side of a bottle. Courts have stepped in and delayed the state’s plans, which were to have been implemented beginning this past Monday. That Arkansas tried to do this at all, as disturbing as the plan was, has provided the nation an invaluable gift by making plain the immorality of the death penalty.
State-ordered executions are not an effective deterrent of potential crime. They don’t save lives on some undetermined future date by being carried out today.
A state-ordered execution is not a weapon of last resort – because the state has other options. A life spent in prison, whether in solitary confinement or the general population, is stiff punishment for any crime.
In other words, there is no compelling reason to spend years, or decades, and millions of taxpayer dollars to end a man’s life as punishment for his having ended another’s.
Not only are the killings unnecessary and ineffective, they represent the final word in a system long known to be fatally flawed. There are no do-overs. A study in the Proceedings of the National Academy of Sciences found that at least four percent of the people sentenced to death have been innocent. But that’s not the only reason the death penalty is bankrupt.
The system will never be about true justice or equality as long as men and women are more likely to end up on death row based upon the color of their skin, the race of their victim and the size of their bank account than their guilt or innocence. Those are problems endemic throughout the criminal justice system but particularly egregious on death row, given the finality of an execution.
In the case of the Arkansas seven, a Harvard report noted several of the men have serious mental health problems and had inadequate representation at trial. One of the men, Don Davis, believes he is about to go on a “special mission as an evangelist” instead of being tied down and having poisons pushed into his veins.
Arkansas’s decision to rush executions on the flimsy basis of expiring drugs seems absurd in the extreme. The truth is, though, that this country has long committed to killing people for no good reason. Arkansas is not an anomaly.

Posted by: Claudio Giusti | Apr 21, 2017 2:52:53 PM

"The last comment has a sort of truth to it though it has a satiric flavor." yes, maybe in an off-hand way, but so what--anyone with any ability to think is going to see that a process where there are many many independent actors is necessarily going to produce incongruous results. To say that makes the system arbitrary is deeply wrong, as is the characterization of the process as a lottery.

And the shelf life issues DID NOT aggravate the problems---these guys have had years of appeals and habeas petitions. Arkansas has a strong interest in, as Stringer Bell remarked, "Get[ting] on with it."

Posted by: federalist | Apr 21, 2017 3:29:21 PM

Not sure who is saying something that will "produce incongruous results" alone is what "arbitrary" means in this sense. At some point, maybe the passion is a result of misunderstanding the other side's position. Seems more than one person said this.

The shelf life issue provided a specific reason for the state to feel a need to rush things, drawing an artificial deadline. At least one case involved problems arising for not waiting a specific number of days (forty or some such) to do something. Executing eight by June, or some such day, "gets on with it" too.

But, perhaps, like in "The Taking of Pelham One Two Three," deadlines have some values.

Posted by: Joe | Apr 21, 2017 3:52:35 PM

Not sure who is saying something that will "produce incongruous results" alone is what "arbitrary" means in this sense.

Read Breyer's opinion . . . . he's asserting that the death penalty is arbitrary. In legal-speak, that term has meaning, and it's blinding sophistry to assert that because some guys get off that did worse things than others who didn't that's arbitrary in the legal sense. These guys have had years of appeals and federal habeas.

Posted by: federalist | Apr 21, 2017 6:24:32 PM

Oh, so now we worry about what the victim's family (purportedly) wants? Why didn't we consider the wishes of the victim's family when they didn't want death? At least fake consistency, or admit YOU want to inflict punishment on your fellow human.

Posted by: Mark M. | Apr 22, 2017 1:28:57 AM

Mark, you are incredibly tedious. First of all, there is a 9-0 Supreme Court decision which acknowledges the interest of the victims' families in the timely enforcement of death sentences. Certainly,I can reference propositions from unanimous Supreme Court decisions.

Additionally, the idea that some victims' family members oppose the death penalty so therefore the victims' families interests are a wash is so intellectually dishonest words can hardly describe it. Victims' family members often wait patiently for years while cruel judges willy-nilly issue stays by allowing capital defense attorneys to save claims for the very last minute. Many drive hours to witness justice carried out only to have some judge decide to issue a bogus stay.

Posted by: federalist | Apr 22, 2017 7:42:16 AM

"Arbitrary" in a legal and non-legal sense involves taking various things into consideration & I think the phrasing used by federalist is an overly simplistic paraphrase of the argument. And, appeals help, but won't by themselves do it.

In response to Mark M, at issue here is an objective overall government interest in carrying out sentences that partially in place to further the interests of victims. So, if you punish a thief, you are helping the victim too.

But, that is "an" interest & cannot be done in an unconstitutional way. It is not "cruel" for judges to guard against that. federalist disagrees with the judgments of various judges here, including state judges that in this specific location are elected by the people. So it goes.

In the past, I said that I personally would not use "wash" here, but federalist does only provide one side's position in the reply. Those against the death penalty here also for years are upset and speak against executions they (or maybe even those who were killed) oppose. They go to vigils and drive hours etc. to make their case. And, there is the middle who don't care or are happy to see the people executed, but it simply is not what drives their life. The person (as most do anyway) spending their lives in prison would not change this group's lives that much.

But, bottom line, if taking liberty and life is unconstitutional, the victim not minding isn't the rule.

Posted by: Joe | Apr 22, 2017 12:37:19 PM

Claudio. Hey, Buddy, where have you been? Don't make yourself a stranger. Thanks to your persuasive arguments, I have switched sides. See what happened, here:


Posted by: David Behar | Apr 22, 2017 11:50:33 PM

Thanks Joe; but I'm fully cognizant of the good and bad arguments on both sides in our national debate over death. I will always yank the chain on those I encounter who demonstrate little but hatred for their fellow human and seek to use the criminal justice system to exact their revenge for whatever slight caused them to hurt and hate so bad. There are many such unfortunates; I pick juries in Texas where there's a whole lot of them. Our resident authoritarian attempts to paint his bloodthirst for vengeance with some patina of "justice" shaded with "victim's wishes", so I point out the inconsistent reliance on such justice where appropriate. Specifically, in this forum not long ago, that same person summarily dismissed the wishes of a victim's family as inconsequential where they did not want death.

Posted by: Mark M. | Apr 23, 2017 7:18:03 AM

Our resident authoritarian attempts to paint his bloodthirst for vengeance with some patina of "justice" shaded with "victim's wishes"

Support for the death penalty doesn't make me an authoritarian. If you had any brains, you'd know that.

As for Joe, it's amazing how you elide the issues . . . these are last-minute stay motions filed strategically in particular courts---dressing that up as preventing unconstitutional executions is sophistry

Posted by: federalist | Apr 23, 2017 8:30:37 AM

Doug. Please, ban Fed, Joe, and Mark. They are monopolizing this thread, and are a disgrace.

Posted by: David Behar | Apr 23, 2017 9:19:37 AM

Okay Mark M. Like in a past case involving federalist which later was noted to be a "yank your chain" exercise, not always clear.

Posted by: Joe | Apr 23, 2017 10:41:11 AM

Doug. I cannot get Joe to STFU.

Posted by: David Behar | Apr 23, 2017 12:03:24 PM

David, if I banned commentors on a single request, you would never get to have your fun here.

Posted by: Doug B. | Apr 23, 2017 2:58:51 PM

Funny, Doug, you don't call out Mark for attacking me personally. Are you done playing the politesse police?

Posted by: federalist | Apr 23, 2017 7:25:50 PM

federalist, what "attack" from Mark are you fretting here? Being called a "resident authoritarian" or being said to have a "bloodthirst for vengeance"? These epitaphs did not strike me as all that much different in kind than some you direct toward Joe. But maybe one or the other strikes you as distinctly offensive

If I missed something that offends you greatly, please let me know. I do not seek to police comments at all, but I get so many complaints about SC/DB that I do try to urge him to limit his ranting. And would dislike having you, a frequent and distinctive and informed voice, find this space to be inhospitable for continued commenting.

Posted by: Doug B. | Apr 23, 2017 10:17:22 PM

Doug, I was just busting chops. I don't really care what Mark has to say---if he thinks I am an authoritarian, he's pretty dumb.

Btw, Joe's annoying style is apotheosized by this thread.

Posted by: federalist | Apr 24, 2017 9:20:41 AM

Someone finds a commentor on this blog to be annoying? I am aghast and my opinion of the internet will never be the same. ;-)

Posted by: Doug B | Apr 24, 2017 10:01:30 AM

Doug, Joe's comments in this thread are niggling and twerpy. They don't seek to inform. He serves up a non-defense defense of Breyer and doesn't engage on the merits.

Posted by: federalist | Apr 24, 2017 10:20:22 AM

Wanting the State--in all its infallible majesty--to kill your fellow man in your name and at your behest is nothing short of authoritarian at its most vulgar.

Posted by: Mark M. | Apr 29, 2017 3:10:11 AM

Wanting the State--in all its infallible majesty--to kill your fellow man in your name and at your behest is nothing short of authoritarian at its most vulgar.

Posted by: Mark M. | Apr 29, 2017 3:10:12 AM

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