And Now, All Eyes are On the Governor - Will Virginia's Tim Kaine Stop the Execution of John Muhammad, the DC Sniper?

Virginia executes more people in this country than any other state than Texas, so the statistics seem to sway us toward a prediction that Governor Tim Kaine will allow the upcoming execution of John Muhammad, the DC Sniper. 

And Kaine is the only barrier betweeen John Muhammad and death. 

That's because the United States Supreme Court officially declined to hear Mr. Muhammad's appeal yesterday -- and what is unusual about that is they did so long before anyone expected them to do so.  As Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor explained in a joint statement authored by Stevens, under standard operating procedure the high court would have taken this matter under consideration during its November 24th Justices' conference. 

By declining to stay the execution in order to maintain that SOP Justice Stevens wrote, "...we have allowed Virginia to truncate our deliberative process on a matter -- involving a death row inmate -- that demands the most careful attention." 

Importantly, the Justices' statement points out a crucial problem in this case, something of which we all need to be aware:  Virginia scheduled John Muhammad's execution before all of his legal avenues had been exhausted. 

That's right -- Virginia scheduled a man for death before the legal processes had been completed, those legal safeguards that are in place to insure that no legal errors had been made.  To quote the Statement, " '[t]his case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."

Perversity indeed. 

We're watching, Governor Kaine.

Considering the Importance of Sonya Sotomayor and Capital Punishment, looking back to Furman v. Georgia and its 5 -4 vote

The news has been filled this week with the questioning of the Latina who may well be our next U.S. Supreme Court Justice, and some may be wondering why all the hoopla. Well, let's look back to 1972, where one single justice's vote successfully halted capital punishment in this country for four years.

Furman v. Georgia, 408 U.S. 238 (1972)

This was a case of a robbery gone bad. Billy Furman was robbing a house in the middle of the night and the homeowner woke up. The homeowner challenged the burglar, and ended up dead. Billy Furman gave two versions of what happened: in one statement, he was trying to escape, tripped, and his gun went off, killing the homeowner. In another statement, Furman shot blind into the darkness, trying to get away, and inadvertently shot the victim.

Either way, someone died during the commission of a felony and under Georgia law, Billy could die for this. And after a jury trial, Bill Furman was sentenced to death for killing the person whose home he was trying to rob.

The case made its way through the appellate courts to the U.S. Supreme Court. Furman's lawyers' question to the high court: does imposing the death penalty constitute cruel and unusual punishment under the 8th and 14th Amendments of the U.S. Constitution?

One page opinion - death penalty was unconstitutional

After reading briefs from the Furman team as well as the State of Georgia and various interested parties in their "friend of the court" briefs (amicus curaie), a majority vote of 5 to 4 held that the death penalty violated the United States Constitution.

One vote, by a single justice was the deciding factor. A very, very important swing vote.

Lots of written explanations by the Justices

Of course, that one page opinion didn't get filed of record all by itself. The justices wrote to justify their positions on the vote, filing concurrences with the majority opinion and formal dissents to the outcome.

Every single justice wrote his own explanation of why he voted the way he did in Furman v. Georgia:

Justice William Brennan voted yes, believing that the death penalty was unconstitional, period. "...Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the [Cruel and Unusual Punishment] Clause, however, was left behind with the 19th century. Our task today is more complex. We know "that the words of the [Clause] are not precise, and that their scope is not static." We know, therefore, that the Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ... That knowledge, of course, is but the beginning of the inquiry."

Justice Thurgood Marshall agreed with Brennan. "...The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. Hence, we must proceed with caution to answer the question presented. By first examining the historical derivation of the Eighth Amendment and [408 U.S. 238, 316] the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint. Candor is critical to such an inquiry. ... Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error."

Justice Potter Stewart didn't believe that the way that the death penalty was imposed was constitutional. He voted yes. "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Justice William Douglas had problems with an apparent arbitrary imposition of the death penalty and on those grounds, found capital punishment to be unconstitutional. He also voted yes. "The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

Justice Byron White agreed with Justice Douglas on the arbitrariness concern. Another yes vote. "The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment."

Justice William Reinquist voted no. "The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded."

Justice Burger voted no. "If we were possessed of legislative power, I would either join with [Justice Brennan and Justice Marshall] ... or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment."

Justice Blackmun voted no. "...I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided."

Justice Powell voted no. "It is the judgment of five Justices that the death penalty, as customarily prescribed and implemented in this country today, offends the constitutional prohibition against cruel and unusual punishments. The reasons for that judgment are stated in five separate opinions, expressing as many separate rationales. In my view, none of these opinions provides a constitutionally adequate foundation for the Court's decision."

The Elusive Memo by U.S. Supreme Court Nominee Sonia Sotomayor -- What is Her Position, Today, on the Death Penalty?

As I'm sure you know, Sonia Sotomayor has been nominated by President Obama to replace retiring Supreme Court Justice David Souter. For those concerned about capital punishment, it hasn't been that easy to determine exactly what the nominee's position is on the death penalty.

The Elusive Sotomayor Memo.

Judge Sotomayor did not include something she wrote over 20 years ago as part of her confirmation submission. While that may have been oversight, some are suggesting that it means something more - particularly when, for a time, it was hard to find the memo itself to read its full text. (It's been found.   Here's a copy if you would like to review it, provided by the folks over at Crime and Consequences.)

Prosecutors worry about her.

Check out 22-year law enforcement veteran Bruce Castor's concerns, as he discusses the Pennsylvania case of Joseph Kindler in an editorial he wrote for The Patriot News.

Defense attorneys worry about her.

Check out Jeff Gamso's concerns - which also include a review of Sotomayor's precedent and past history dealing with the police - at his blog, Gamso for the Defense.

And, over at Crime and Consequences, they try and take an undecided approach to the issue - viewing the memo as neither a supporter nor an opponent of the death penalty - to see what this memo tells us. It's a lengthy analysis, and worth the read.

 
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