Delay and Failure to Accept Responsibility For It
Along with the two Arizona capital cases decided yesterday (see this post), the Supreme Court turned down another, the case of one of the longest-term residents of death row.
Justice Breyer penned another of his opinions lamenting how awful it is for these murderers to have death sentences hanging over their heads so long. And once again he failed to acknowledge how much the Supreme Court itself is at fault for this situation.
The opinion begins with this:
Joe Clarence Smith was first sentenced to death in 1977, more than 44 years ago. Pet. for Cert. 2. The Arizona Supreme Court vacated that sentence as unconstitutional and remanded for resentencing in 1979.
From that truncated description, you might think that Arizona had grievously wronged Smith by violating some fundamental rule of capital trials written in to the Constitution when the Bill of Rights was adopted in 1791 or when the Fourteenth Amendment was adopted in 1868. You would be wrong.
The supposed unconstitutionality of Smith’s 1977 sentence is not based on anything actually in the Constitution. In the 1977 trial, the state court “violated” a pseudo-constitutional rule that the Supreme Court conjured up out of thin air the following year in its disastrous decision in Lockett v. Ohio.
After Furman v. Georgia in 1972, the Arizona Legislature adopted a capital sentencing system in which the jury was limited to defined lists of both aggravating and mitigating circumstance. It did so in the well-grounded belief that that was what Furman required. The judgment seemed vindicated when the Supreme Court approved a similar law in 1976 in Proffitt v. Florida. But no. The Court flipped yet again and banned the kind of law it had apparently approved.
For the long version of this history, see my article, Tinkering with the Machinery of Death: Lessons from a Failure of Judicial Activism, 17 Ohio St.J.Crim.L. 131 (2019).
But Justice Breyer goes on and on. He writes again and again on this issue and never once addresses the degree to which the Court itself has caused it.
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This might be one area where Justice Breyer’s replacement is better than he, but I wouldn’t bet the rent just yet.
Interesting coming from the author of the proposition that has basically shut down the death penalty in California by creating a new system for habeas corpus appeals (adding a layer of appeal that did not previously exist) without providing funding for counsel. Of course funding counsel would have revealed to voters the actual cost, which is why Prop 66 did not do that.
This comment is wrong in every statement.
First, I am not “the author” of Proposition 66. I am the primary author of some portions of an earlier initiative that were copied into the initiative that became Proposition 66. I was also consulted in the final editing of the initiative. But the decisions as to what went into the proposition and what stayed out were not mine to make, and I did not agree with all of them.
Second, Proposition 66 did not shut down the death penalty in California. Newsom’s misuse of the reprieve power has shut down the death penalty. Proposition 66’s moving the initial habeas review to the trial court, with review on appeal, does add an additional layer, but that would have been much more than counterbalanced by the near-elimination of successive petitions if the successive petition provision had been correctly interpreted and implemented.
Third, these cost issues were considered by the Legislative Analyst. Nothing was hidden from the voters.