Last week, Governor Mary Fallin of Oklahoma admitted that her state had misled the United States Supreme Court.
In a brief statement issued hours before the scheduled execution of Richard Glossip, Fallin said that she was granting him a 37-day stay “due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol.” The state last spring assured the Supreme Court that it stood ready to execute Glossip with a three-drug cocktail consisting of “midazolam, followed by vecuronium or recuronium bromide, then potassium chloride” a different drug with different effects. Glossip had challenged his planned execution on the grounds that the use of midazolam, a sedative, might not render him unconscious before the other two drugs are administered. That, he said, would make the execution “cruel and unusual” punishment, in violation of the Eighth Amendment. “Oklahoma’s lethal injection protocol is not cruel and unusual,” the state argued, “but rather the most humane form of execution available to the State.”
A five-justice majority upheld the three-drug protocol Oklahoma said it was going to use. “We are not persuaded,” that the drugs at issue were likely to cause enough pain to render the execution “cruel and unusual,” Justice Samuel Alito wrote for the majority. After all, “12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems.”
Or maybe not so much. When the state told the Court about its “humane” procedures, it didn’t even know what three drugs it had on hand. Shortly before Glossip’s scheduled execution, in fact, Fallin learned that an autopsy showed Oklahoma had already used the wrong drug to execute another condemned inmate, Charles Warner, in January. Warner was originally a petitioner in Glossip’s case. The Supreme Court denied him a stay, then accepted the case after Warner had been killed.
Justice Stephen Breyer, in a separate opinion for himself and Justice Ruth Bader Ginsburg, announced in Glossip that, in his view, the death penalty could no longer be administered fairly, and thus was unconstitutional. That didn’t sit well with Justice Antonin Scalia, who wrote in a separate opinion that Breyer’s “argument is full of internal contradictions and (it must be said) gobbledy-gook.”
A week after Fallin’s revelation, the Court heard the first of the four death-penalty cases it has granted this term. The hard feelings in Glossip have apparently not healed.
Kansas v. Gleason and Kansas v. Carr challenge Kansas trial judges’ instructions to two juries mulling death sentences for murderers. Under existing precedent, the jury is supposed to consider a statutory set of “aggravating factors,” which the prosecution must prove beyond a reasonable doubt. The defendant may ask the jury to consider “mitigating factors” (such as a defendant’s limited mental capacity or history of mental illness, a past history of abuse, or anything else—including the desirability of mercy—that his lawyers can think of). Unlike the prosecution, the defendant doesn’t have to prove that these factors exist “beyond a reasonable doubt,” and the jurors don’t have to find them unanimously.
Many states, and the federal government, explain these different burdens to the jury; but the courts in Gleason and Carr did not. Since those decisions, Kansas has changed the “pattern instructions” used by its judges; the Kansas Supreme Court ordered the two courts to go back and resentence the defendants using these instructions, because, it said, the instructions used might convince jurors that the defendant also had a “reasonable doubt” burden.
Soon after argument began in Kansas v. Gleason on October 7, Scalia used his best tell-frogface-to-pass-the-salt voice to ask Kansas Attorney General Derek Schmidt whether “Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it.” For that reason, he suggested (“I’m just speculating of course”) that the Kansas Supreme Court had actually lied by claiming that that the Eighth Amendment, rather than their own squishy liberal prejudices, required granting the defendants a new sentencing. Alito seemed to agree: “[P]resumably, the Kansas Supreme Court understood that it had the capability of basing its decision on Kansas law. But if it did that, it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here.” The Kansas court, however, “didn't take responsibility for that. It said ‘it's the Eighth Amendment, and we have to apply the federal Constitution.’”
On Tuesday, the Court will hear Hurst v. Florida, yet another challenge to Florida’s enthusiasm for the injection gurney. Even though the Supreme Court held 13 years ago that “aggravating factors” must be found by a jury, Florida’s Supreme Court validated a state system in which the judge, not the jury, finds the “aggravating factors”—and the jury’s verdict is, in fact, “merely advisory.” The “advisory” verdict also—unlike in the majority of states—need not be unanimous.
After Hurst, the Court in November will hear Foster v. Chatman, which tests the Court’s requirement that all juries—in capital and non-capital cases—be selected without racial discrimination. That rule was announced three decades ago, in a case called Batson v. Kentucky. Under Batson, no party can use race as a basis for “peremptory strikes”—decisions by one side or other to exclude a potential juror. Ordinarily a lawyer need give no reason for a “peremptory”—it can be based on a gut feeling or a dislike of the social characteristics of a member of the pool. If the other party points to a racial pattern of “peremptories,” however, a court is supposed to hold a hearing at which the side using the strikes must explain a “neutral” reason for the strike.
The scandal of Batson is that courts tolerate the flimsiest explanations for seemingly clear use of race by prosecutors. A minority juror may be too old, too young, over- or under-educated, a former crime victim, or a former criminal defendant; almost anything will do.
Foster, however, seems to involve as smoky a gun as will ever be found. Tyrone Foster, an African American, was convicted in 1987 of capital murder for killing Queen Madge White, a white 79-year-old, as part of a burglary in Rome, Georgia. The prosecution had used its strikes to eliminate all four black potential jurors; when challenged, the state’s lawyers offered neutral explanations, and a Georgia trial court accepted them. In closing, the prosecution argued that the jury should order Foster put to death in order to “deter other people out there in the projects.”
Seventeen years later, Foster’s lawyers won the right to inspect the prosecution’s notes—and what they found indicated that the “neutral” explanations were a sham. The word BLACK on each black juror’s form was circled; they were coded “B1,” “B2,” etc., and highlighted in green. One investigator wrote on the forms that “[i]f it comes down to having to pick one of the black jurors, Ms. Garrett, might be okay.”
In 2013, a Georgia trial court rejected the Batson claim. “[T]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination,” wrote the (elected) judge. That result shocks the conscience; true, the prosecution did not write on the forms “MAKE SURE TO EXCLUDE THESE JURORS BECAUSE THEY ARE B-L-A-C-K AND LET’S NOT WORRY ABOUT VIOLATING B-A-T-S-O-N,” but the notes show everything short of that.
Whatever the justices decide, the “neutral” explanations in Foster seem a bit like assurances from Oklahoma; desperate attempts to shore up an institution that is in collision with what Chief Justice Earl Warren once called “the evolving standards of decency that mark the progress of a maturing society.” Any criminal penalty that can’t be administered without the lies and incompetence that mark capital punishment today seems to me, well, cruel and unusual.