Posts Tagged ‘Death Penalty’

WHAT HAPPENED:  Defendant was convicted of murder and sentenced to death in Pennsylvania.  Somewhere along the line, a Motion for Post-Conviction Relief was granted in favor of Defendant, staying his death sentence.  That finding was appealed to the Pennsylvania Supreme Court, where it was reversed, thus reinstating the death penalty.

WHY IS THIS BEFORE THE SUPREME COURT:  As luck would have it, one of the Judges who reversed Defendant’s successful appeal used to work for the District Attorney in PA before being appointed to the bench.  While in his previous position, he was at least part of the decision to charge Defendant with death.  This potential conflict of interest is the crux of this case, where the Court has to determine whether or not this judge was biased enough to force recusal for Defendant’s appeal.

WHAT IS THE RULING:  This case is not  yet decided.

WHAT ARE THE RAMIFICATIONS:  There are potentially two different questions here that need to be asked.  (1)  Whether this particular judge should have recused himself on the appeal, and (2)  what are the rules going forward for judges in this position, because this judge is not the first or last person from the District Attorney’s Office to get appointed to an appellate court and hear a death penalty appeal.  Putting the specifics of Defendant’s case aside, this case could pass rules concerning under which circumstances judges should be recused based on previous work, which could affect death penalty appeals most specifically since they are both common and highly scrutinized.

ROOT FOR WILLIAMS IF: You are on-board with the “death by 1,000” cuts approach to dismantling the death penalty.

ROOT FOR PA IF: You watch Judge Dredd and think “maybe Stallone is on to something here…..”

The Breyer Scale

Posted: January 18, 2016 by beguide in Death Penalty, The Breyer Scale

Periodically, we will look at the current state of abolishing the Death Penalty in the Supreme Court.  Last term, Justice Breyer advocated for declaring the Death Penalty unconstitutional in a dissent joined by Justice Ginsberg in Glossip v. Gross.  Following the Hurst v. Florida decision the Breyer Scale stands as follows.

9 Justices Support Abolishing the Death Penalty:   The Full Breyer.

8 Justices Support Abolishing the Death Penalty:   The Cheese Stands Alone.

7 Justices Support Abolishing the Death Penalty:  Thomas, Scalia, or Alito has Retired.

6 Justices Support Abolishing the Death Penalty: The Comfortable Liberal Majority.

5 Justices Support Abolishing the Death Penalty: The Slim Liberal Majority.

4 Justices Support Abolishing the Death Penalty: Somebody Pissed Off Kennedy.

3 Justices Support Abolishing the Death Penalty:  Now We’re Getting Somewhere

2 Justices Support Abolishing the Death Penalty: Breyer on a Loveseat.

Hurst v Florida moved the Breyer Scale very little, as the Justices dealt only with the procedure of administering the Death Penalty and not anything more substantive.  One could also argue that having the jury and the judge work together on making the decision could help the defendant, although in practice that is unlikely.  Breyer himself wrote a concurrence that served only to vaguely affirm his disagreement with the current Court’s position on the Death Penalty.  No other justice joined that concurrence.


1 Justice Supports Abolishing the Death Penalty: The Lone Breyer.

0 Justices Support Abolishing the Death Penalty: Breyer has retired.

Background: Florida’s Death Penalty Statute asks the jury for a recommendation on death after the jury makes factual-findings. The Judge takes those findings and can make any decision within those findings.

Opinion can be found at

Sotomayor – Majority Decision (8-1)



The Florida statute is unconstitutional. Previous Supreme Court cases have required that any finding by the judge has to be supported by factual findings made by the Judge, which this does not. This case also gives too much power to the judge and not enough power to the jury, which is a violation of our decision in Ring. Finally, even though we’ve held that this statute was fine in 2002, logic and subsequent cases have washed away the logic of previous decisions. Kind of like boy bands and white-guy rap metal.

Breyer – Concurrence

Breyer joins the decision here out of practicality and not principal. Breyer sees bigger issues with the judge making the decision over the jury. This opinion reads like Breyer is saving his bullets for bigger decisions later on.

Alito – Dissent

All of this is wrong. Ring v AZ, which required juries make the death penalty decision, was wrong and this extension of Ring is also wrong. The majority is wrong that the judge takes precedence over the jury, and the defendant here is wrong because even if this process was faulty, it doesn’t change the fact that he would have been sentenced to die either way.

Defendant was convicted of murder and sentenced to the death penalty.  Defendant appealed on the basis that the prosecutors engaged in racial discrimination by purposefully removing any non-white jurors from the trial.
The Equal Protection Doctrine extends to peremptory challenges when selecting juries.  By way of background, lawyers are entitled to strike jurors down for any reason after the Court removes jurors who show evidence of bias.   In Batson v Kentucky, the Court held that attorneys could not use their challenges to specifically remove people based on race; however, the test used by the Court to vet this out isn’t perfect and requires to the Court to (1) infer racial prejudice against the attorney, or (2) have the lawyer admit to being racist on the record.  This case falls somewhere in the middle.
This case is not yet decided.
It would be hard to see the Court revamping the Batson challenge all together, as this case really just decides whether or not the facts on the record amount to what the Court feels should result in a violation.  This case could instruct judges to take more deference when finding violations if a Batson challenge is found here, but that holding would have to trickle pretty far down the line to have any real effect.
Believe it is appropriate to make broad accusations of racism based on an hour’s worth of conduct.
Don’t see the irony in the fact that the most famous instance of jury deliberations is called TWELVE ANGRY MEN and based on the picture above could be called TWELVE MOSTLY WHITE GUYS WHO ARE ALSO ALL DRESSED IN WHITE.





The defendant in this case was sentenced to death in Florida. In Florida, the death penalty stage of the trial takes two parts, where the jury must first decide whether an aggravating factor is present to qualify the defendant for the death penalty and then the judge takes the jury’s recommendation to determine whether or not the death penalty should be administered.


The Supreme Court has made rulings on death penalty procedure wherein the Supreme Court has shown a preference for the death penalty to be decided by the jury. In this case, there is a question over whether the decision is truly made by the jury when the judge has final approval over the decision.

AMENDMENT FROM THE PODCAST: In our episode regarding this case, we were under the impression that the judge’s decision only factors in when the jury has made a recommendation of death. This is incorrect, as the judge makes a final decision only after considering the jury’s decision either in favor or against the death penalty.

In addition, the jury may make a ruling in favor of death that is not unanimous, which is generally disfavored by the Supreme Court’s current jurisprudence on the Supreme Court.


This case is not yet decided.


Most States have death penalty statutes where the jury makes the final decision in cases of the death penalty, so Florida’s use of the jury in this case is outdated in the context of national law. Florida’s Death Penalty statute certainly makes it easier to find in favor of death, but in the same token, adding the extra level of judicial review could help the defendant avoid the death penalty in certain cases.


You prefer a more updated, modern Death Penalty statute, where the decision to sentence someone to death is held solely in the hands of citizens chosen randomly through jury duty.


You prefer a vintage death penalty statute, where the decision to sentence someone to death is held in the same Florida public officials which ruined the 2000 Presidential election.

WHAT HAPPENED: The State of Oklahoma uses a drug called Midazolam during the process of administering the death penalty.  The purpose of Midazolam is to ensure that defendants are put into a coma-like state prior to the administration of potassium chloride, which ends the inmate’s life.  The Plaintiffs in this case are suing to stop the use of Midazolam arguing that the drug has a ceiling-effect, which means that the drug stops working at a certain point, making the process of lethal injection horrifically painful for everyone associated, specifically the person sentenced to death.   The Plaintiffs lost at the lower levels before the Supreme Court, but have argued that the lower rulings are based on faulty evidence that is objectively incorrect.  The Defendants, i.e. the State administering the death penalty, argue that the lower court opinions are correct, that Midazolam is fine, and that “there’s nothing to see here folks”, as they gently nudge everyone out of the Courtroom.

WHY IS THIS BEFORE THE SUPREME COURT: The Supreme Court created a test for when the death penalty violates the 8th Amendment, although likely begrudgingly.  This test states that any method of administering the death penalty cannot have an unreasonable risk that the causing the inmate substantial and unjustifiable harm, which is a standard the founding fathers would likely need considerable amount of explaining to understand.  In addition to proving this standard, the Plaintiff is also asking that the Court overrule the factual findings of the lower court, which is something the Supreme Court almost never does.

WHAT WAS THE RULING: This decision is not released yet.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: In the short term, nothing.  Even if this decision is reversed and remanded, the lower court will be forced to have another hearing on this subject, at which the State will likely provide a better expert who will just make their point more clearly and the case will be ruled in favor of the State.  In the grand scheme of things, should Midazolam be banned under the Constitution, it creates another small victory in favor of those looking to ban the death penalty outside of the governmental processes.  Justice Scalia touched on this during the oral argument, which is that this case is part of a bigger movement to ban the death penalty by making all the drugs used in the process either commercially or legally unavailable.  Banning Midazolam would go far in movement, since there are very few drugs that can do this task within the current Constitutional framework

YOU SHOULD ROOT FOR GLOSSIP IF: enjoy seeing haughty government institutions and Supreme Court justices swallow bitter pill after bitter pill until their support of the death penalty is haphazardly put into a coma and then burned alive from the inside using potassium chloride.

YOU SHOULD ROOT FOR GROSS IF: you are gross because rooting for people to die is gross.

WHO WAS RIGHT: This case is not yet ruled on, but both Brett and Nazim believe that the ruling in favor of the State will be upheld by some majority greater than 5-4 but less than 7-2.