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November 15, 2021

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

November 15, 2021 at 03:36 PM | Permalink


Yes, "largely," since "after a hiatus of 17 years, the federal government executed 13 inmates."

The Administration put in place a moratorium. They didn't "ask a court" to do it. They did it themselves. As noted by a past comment, the moratorium could be broader. But, that is what they did.

Not just commuting the sentences is a sort of loaded gun situation as seen by those 13 inmates after Obama (and Bush43 really after executing three, including Timothy McVeigh).

So, I support making this permanent. Still, unlike let's say Oklahoma, not seeing the Biden Administration executing any one soon. And, in November 2021, it is a bit soon for me to say that the Administration will never do more.

The article links the government's cert request in the Coonce case. As to what the oath requires, I'm unsure if there is some constitutional prohibition for him being on death row as compared to actually being executed if intellectually disabled. As the matter is examined.

It seems to me sensible to allow the process asked by his lawyers set forth here, especially (per Sotomayor) if the normal practice of both sides agreeing being to GVR the case. As long as the person is not executed, I'm not sure how the oath is being violated here. Unlike, in my view, how those 13 executions were handled.

I think it reasonable to think that the Biden Administration -- like the average person in his position -- would rather accomplish something in a more low key sort of way.

The case here -- involving someone who murdered in prison -- does not seem like the case to go the whole hog. Especially while a moratorium & the accompanying study is in place.

I very well do wish more is done, partially since unlike the person who runs this blog, I think the death penalty is unconstitutional as well as bad policy. As to the state of the death penalty with a more conservative court, we shall see how silent it is as states execute people in ways that those who observed executions for quite some time have flagged as blotched.

Posted by: Joe | Nov 15, 2021 7:23:02 PM

"The state of capital punishment in the United States is largely one of modern desuetude." Try telling that to prosecutors in Cuyahoga County. The death penalty is alive and well up here.

Posted by: Cleveland Attorney | Nov 16, 2021 9:56:14 AM

Joe's got good points, as always.

I don't really understand the complaint about the NYT characterization of what happened. For one, Liptak is their SCOTUS reporter. His job is to cover the Court's decisions and other goings-on; he doesn't report on the current presidential administration writ large. Of course, here the Biden admin was involved in the case, so he reported on it to that extent.

And it was very much a "glimpse" into DP matters—as they are happening at the Court, which again is Liptak's focus. One way to define "glimpse" is as a "brief peek." The cert dissent certainly provided a brief peek into DP matters at the Court. It wasn't a full-blown opinion in a full-blown merits case, so it clearly meets the shortness requirement. And likewise it meets the "peek" requirement because a quickie cert dissent—which by definition only relates to a single case for a single death-row inmate—can only give a partial view into how the Court is treating such issues in DP cases.

Of course, because Prof. B. is so in the tank for TP and the Rs, he never misses a chance to make everything a criticism of Biden and the Ds. But to do that, you of course have to conveniently ignore that all 6 R-appointed "Justices"—including all 3 appointed by TP—were so out for blood that they couldn't even begrudge Coonce a remand. Not anything remotely close to an outright reversal, not even a merits hearing, but just a mere GVR. Plus, the remand would have been to a CA8 panel with two TP-appointed reactionaries (as well as Loken, who I guess by comparison is a "moderate" but that isn't saying much) anyway. So was the likely outcome there really in doubt? But again, those 6 R "Justices" needed their death and they needed it quickly. And what was the stance of Biden's (acting at the time) SG? Oh, she was backing Coonce. As were all three D-appointed Justices. But in the bizarro alternate universe that Prof. B. inhabits, Biden and the Ds are the real baddies in this story.

"push for courts to take people off death row"

As Joe helpfully noted, Biden reinstated the moratorium all by his lonesome. But Prof. B. was in such a mad dash to criticize that he failed to mention it. Also, the criticism's not really coherent in the first place. DOJ isn't pushing the courts to do anything. It's the inmate that's appealing his sentence, right? Are you saying he shouldn't do that, and instead just roll over and die while awaiting clemency that doesn't come? Or, since the inmate's obviously appealing his sentence anyway, Biden's DOJ should actually *fight* his GVR request instead of agreeing, like they did here?

Let's get real. Nobody should confuse Biden with a DP abolitionist. Anyone who thinks he is must be delusional or incurably naïve. He's not pro-DP like TP, but at his core he's an institutionalist. I think he'd be fine with abolishing the federal DP, but I suspect he wants to see it done via Congress and the political process. Until that happens, it's still the law in the U.S. Code and I don't think he wants to undermine that. Of course, if he strongly felt the DP was unconstitutional across the board or in particular situations like the mentally ill, he might instruct his DOJ to take that position, but I think it's clear he doesn't feel that way. But still, he's not going out of his way to speed up the DP. And again, he did reimpose the moratorium. Plus he (via his DOJ) is being accommodating in cases like Coonce's.

So yeah, Biden's not gunning for full-blown abolition. But looking at the guy's history of decades in the Senate, plus 8 years as VP to Obama—who approached the DP in a very similar way, and, shocker!, chose a VP with similar views on the issue—why would you expect anything different unless you were in a coma during that time? And yet, Biden isn't even neutral w.r.t. the federal DP. He's taken multiple, concrete steps to diminish it. In contrast, TP is not only gung-ho for the DP, he also took deliberate steps to further and accelerate it. Even when it gave him no political benefit whatsoever, because he just revels in needless killing. But, if you have a pair of Prof. B.'s special prescription bothsides glasses, there's absolutely no difference between them!

"if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled"

But they haven't, right? I mean, there's no evidence to that effect, is there? They agree he should be allowed to offer this newly-arising evidence and make arguments based on that. But that's it. I don't know how you cover the considerable distance from that small point to the idea that the gov't actually did a complete 180 on its view of the underlying merits.

"their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row"

Putting aside the lack of support for the suggestion that DOJ is deliberately pursuing this case while knowing it's a violation of constitutional rights, can we just please give it a rest with these arguments around the oath? I'm not criticizing the OP specifically here, but the oath-based arguments in general. They're feeble and they just don't work.

Posted by: kotodama | Nov 16, 2021 11:40:53 AM

@Cleveland Attorney

Last I checked the Rs have a tenacious grip on both political branches of the OH gov't, plus a majority in the SC. But tell me again how the failure to put a stop to the DP is the Ds' fault? I guess that could sort of make sense if you just ignore the facts.

Posted by: kotodama | Nov 16, 2021 11:45:42 AM

Also, separate and apart from everything else, I noted from SCOTUSBlog that the gov't's response in Coonce's case was postponed for more than a year—from April 2020 to July 2021. That obviously spanned a good portion of TP's administration too even before the election and Biden's inauguration. Does anyone know why that happened and whether it's typical or not? Thanks!

Posted by: kotodama | Nov 16, 2021 12:21:19 PM

I won't be as blunt as kotodama or join every last thing said (as with my comments, don't expect total agreement) but as a whole appreciate the replies.

As to Ohio, there has been an extended moratorium in place, even if they have people in theory scheduled to be executed into 2025. I think the professor might mean actual executions.


The reason given to postpone was "because the attorneys with principal responsibility for final preparation of the government’s response have been heavily engaged with the press of other matters before the Court" and that his lawyers didn't oppose delay.

What the actual reason is can be left for others to answer. I would suppose in part the Justice Dept. at the time was more focused on the people they chose as good execution material.

This might suggest even the Barr Justice Dept. figured this was not something worthy of their immediate focus. Without more, that is supposition, though I realize that is one thing we do here.

Posted by: Joe | Nov 16, 2021 1:14:03 PM

kotodama: last I checked, local prosecutors decide whether to bring capital indictments. Michael O'Malley (Democratic Party) is the Cuyahoga County Prosecutor who assumed office on January 2, 2017 and ran uncontested as a Dem to secure re-election in 2020. So, it would seem that the D's are the prosecutors in Cuyahoga County who are keeping the death penalty "alive and well." Meanwhile, GOP Gov Mike DeWine has had an execution moratorium in place since he took office in 2019, and the GOP led General Assembly is currently having hearings on abolishing the death penalty in the state. So, who is ignoring the actual facts on this matter?

Back to the Times story. And if Liptak said Coonce provided a "glimpse of the state of capital punishment in the Supreme Court of the United States," I would not take much issue with that claim. But he wrote (or his editor revised) that the case was a "glimpse of the state of capital punishment in the United States." That is the phrase that troubled me, especially since the real "glimpse" is that the Biden folks are, for now, content with seeking merely a GVR and a "moratorium" (which just replicates the reality from 2003 to 2020). Critically, I am not calling here for Biden to live up to his campaign promise of DP abolition (his website words "Eliminate the death penalty"). I am just suggesting he might use his undisputed power to take a potentially intellectually disabled man off death row if his administration has good reason to believe this man is intellectually disabled. If they do not have good reason to believe this man is intellectually disabled, why bother to ask for the issue to be GVR'd to be relitigated in this appeal now rather than just via a 2255?

Posted by: Doug Berman | Nov 16, 2021 2:21:33 PM

Yes, O'Malley is a D, although at that local level I'd say party affiliations carry less weight, and he's arguably out of step with where the national party is on the issue. So, no, I'm not particularly supporting his position. Any more than I supported Tim McGinty, who was so vile during the Tamir Rice incident.

But, I do object to a selective and disproportionate focus on Ds. For example, is the Cuyahoga Prosecutor's approach on pursuing the DP particularly out of step with other county prosecutors across the state? I don't know, but I would bet (could be risky, I know!) that it's not, and presumably a good portion of those counties have R prosecutors. So, again, assuming my prediction is right, at worst O'Malley is about the same as his peers. Of course numerically Cuyahoga will have more DP cases than other counties because, all else being equal, it's the second biggest county in the state. So absolute numbers don't mean much.

And again, as long as the DP is an available option, you can't be too surprised that it's going to be utilized on least some occasions. Like I said, I somehow doubt the Cuyahoga Prosecutor is such an outlier on that score. But it's the same objection here. It always seems like the R actors are completely invisible until I mention that they (1) exist and (2) have agency too, just like Ds. If the R-dominated legislature would abolish it or the R-controlled SC would hold it unlawful, that solves the problem just as well. Better actually because it affects the entire state. I just find it puzzling that this aspect tends to get ignored in the first instance.

But, if the General Assembly actually takes concrete steps, as opposed to just having some hearings, I promise I'll be one of the first in line to congratulate them. As for DeWine, it's not that impressive if you take a second to consider the underlying reason. To my knowledge, it's only because the needed lethal injection drugs aren't available. Is there any reason to think executions won't resume once the drug supply is firmed up? That's sort of like if I declared I had imposed a gambling "moratorium" on myself because I was currently out of funds after squandering them all in Vegas. It doesn't seem all that noble to me.

Without getting into all the details of Coonce's case, which I don't claim to know intimately, I would just reiterate the objection above w.r.t. Cuyahoga. The discussion just completely ignores–and thus effectively absolves–all the R players involved (here the CA8 judges/SCOTUS "Justices"), despite them playing a major–and entirely negative–role in things. Whereas in contrast, the Ds (here Biden's DOJ), while potentially capable of doing more, are not only not doing negative things, but also some positive ones.

In closing, when it comes to the political branches, I think some amount of realism is called for. Yes, I appreciate the reminder of Biden's "website words" but you have to take that in context. He didn't literally say he would commute DP cases or tell his DOJ not to pursue them in the first instance. And, if you know anything about the guy, you shouldn't expect that either. What I suspect he has in mind–like I said, an ultimately legislative approach–would fulfill those words just as well.

For this particular case too (Coonce), it was brought under Obama originally, i.e., while Biden was VP. I just don't see any reason to think he would suddenly behave differently from Obama's approach on an issue where I think they have similar views.

Posted by: kotodama | Nov 16, 2021 4:05:31 PM

Some reading for you, kotodama:

From 2019: "Cuyahoga County leads the nation in death-penalty sentences, study finds": https://www.cleveland.com/open/2019/12/cuyahoga-county-leads-the-nation-in-death-penalty-sentences-study-finds.html

From 2014: "When looking at all capitally-indicted murders across Ohio over the history of the current statute, 40% of capital indictments come out of Cuyahoga County" The Death Lottery: How Race and Geography Determine Who Goes to Ohio’s Death Row: http://www.otse.org/wp-content/uploads/2014/04/OTSE-Report-The-Death-Lottery.pdf

I do enjoy your efforts to defend the Ds without knowing the facts. But if it makes you feel better, I agree 100% with your statement that Rs in Ohio "(1) exist and (2) have agency too, just like Ds." And I am not expecting the Rs in charge in Ohio to abolish the state death penalty anytime soon, just like I am not expecting the Ds in charge inside the Beltway will abolish the federal death penalty anytime soon. Notably, though, I am pretty sure Mike DeWine and most other Rs in Ohio did not campaign on a promise to "Eliminate the death penalty." But, as we all know, talk is cheap.

Posted by: Doug B. | Nov 16, 2021 4:49:40 PM

"Last I checked the Rs have a tenacious grip on both political branches of the OH gov't, plus a majority in the SC. But tell me again how the failure to put a stop to the DP is the Ds' fault? I guess that could sort of make sense if you just ignore the facts."

Not blaming any party. In fact the Republican governor in Ohio is no fan of capital punishment. This was no a political observation, just an overwhelmed, boots on the ground, observation of the actual facts.

Posted by: Cleveland Attorney | Nov 18, 2021 3:36:17 PM

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