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June 28, 2018

Some GVRs, summary reversal of the Ninth Cirucit and Justice Breyer dissenting to contend "the death penalty today lacks requisite reliability"

This lengthy final order list finishing up the current SCOTUS Term has its most exciting news for criminal justice fans from the single line  granting cert in Gamble v. United States so the Justices can reconsider the Double Jeopardy Clause's "dual-sovereignty doctrine" (discussed here).  But the order list also includes a number of GVR cases citing Carpenter and Rosales-Mireles and a number of notable summary reversals and statements concerning the denial of cert.   Of greatest interest to sentencing fans are:

 This per curiam summary reversal of the Ninth Circuit judgment in Sexton v. Beaudreaux, No. 17-1106 (which led to Justice Stephen Breyer dissenting without opinion).  Here is how the lengthy summary reversal starts:

In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

This dissent from the denial of certiorari in Jordan v. Mississippi authored by Justice Breyer (which did not garner any additional votes).  Here is how his lengthy dissent starts:

In my dissenting opinion in Glossip v. Gross, 576 U.S. ___ (2015), I described how the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability. Id., at ___ (slip op., at 2).  I write to underline the ways in which the two cases currently before us illustrate the first two of these problems and to highlight additional evidence that has accumulated over the past three years suggesting that the death penalty today lacks “requisite reliability.” Id., at ___ (slip op., at 3).

June 28, 2018 at 10:33 AM | Permalink


I agree with Justice Breyer's, "... as currently administered, [the death penalty] suffers from unconscionably long delays, arbitrary application, and serious unreliability." The remedy, aside from the cheap, certain, and immediate, and far superior Italian death penalty, would have mandatory guidelines or an algorithm run by a judge robot, and written by the legislature.

The third remedy would be to just ignore the Supreme Court. It is in insurrection against Article I Section 1 giving all law making powers to the Congress, and the equivalent Articles in the state constitutions. Supreme Court judicial review violates the constitution. This Court is not qualified to make such policy decisions, empirically. For example, the Court has no awareness of the dose-response curve of all remedies. Too little does not work. Too much is toxic.

Posted by: David Behar | Jun 28, 2018 6:25:19 PM

Marsha Berzon, Clinton appointee, eats another summary reversal.

How weak was it of Breyer to dissent without opinion?

Posted by: federalist | Jun 30, 2018 4:36:37 PM

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