Tag Archives: eighth amendment

Don’t Shoot

Utah has decided to bring back the firing squad. This decision was motivated by a shortage of lethal injection drugs, whose European manufacturers refuse to sell them to U.S. prison officials for the executions.

Screen Shot 2015-03-27 at 9.08.23 PMIt’s no surprise that European drug companies aren’t on board with the whole execution thing: the only country in Europe still executing people is Belarus (2 people were executed in Europe last year). In contrast, the only countries that use the death penalty more than the U.S. are Saudi Arabia, Iraq, Iran, and China. Woof.

The death penalty is on the decline nationwide; 2014 had the smallest number of execution in 20 years with 39 people executed, and fewer death sentences were handed down as well. Changing public sentiment may be guiding the shift. One widely shared concern relates to the alarming rate of false convictions: 150 people on death row have been exonerated nationwide, and the National Academy of Sciences estimates that 1 in 25 death row inmates are likely innocent.

But some experts believe that the decline is largely due to unavailability of lethal injection drugs, which became a significant issue for prison officials in 2011 when the European Commission blocked exports of all known lethal injection drugs with the explicit purpose of “abolishing the death penalty worldwide.”

Screen Shot 2015-03-27 at 10.20.59 PMSo what to think about Utah’s archaic “solution” to the shortage? Sister Helen Prejean, human rights leader and anti-death penalty activist, thinks it’s a good thing. “I think the firing squad is more honest in a way and transparent, that you’re actually killing a person,” she opined. “You’re going to see the blood dripping from the chair. I think, in a way, it’s more transparent. I think it’s going to help end it quicker.”

I agree that lethal injection seems to put an incongruously “humane” face on killing a person. But I worry that we’ve simply gone too far down the road of dehumanization to be much moved by watching someone get shot to death and bleed onto the floor.

Corrections officers, prison administrators, and even prison medical personnel have witnessed (and caused) incredible pain and suffering, both physical and mental, to people in their custody and dismissed it as faked, provoked, or deserved. A couple of weeks ago Missouri executed a 74-year-old man with severe brain damage for goodness’ sake. And, like every other problem associated with the criminal justice system, this is some racist shit: death sentences are more likely to be given to Black offenders, and they’re most likely when the victim was white.

Like Sister Prejean, I hope that this alarming move on Utah’s part will serve as a well-needed wake up call, but until we recognize the people we’re killing as people, I’m skeptical that society will be “up in arms” about it.

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Supreme Court Decision Will Affect Thousands Serving Life Without Parole Sentences

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The incomparable Bryan Stevenson, arguing Miller v. Alabama. Credit: Art Lien, Supreme Court artist.

The Supreme Court agreed on Monday to consider retroactive application of Miller v. Alabama, a crucially important case about justice for youth in America. Although the 2012 Miller decision made mandatory life without parole sentences for minors unconstitutional (in violation of the eighth amendment ban on cruel and unusual punishment), the court has yet to rule on retroactively applying the decision.

Granting certoriari for this case (lawyer-speak for agreeing to hear it) is a huge step forward for the thousands of people who were given mandatory life without parole sentences as children, and who are incarcerated in states that have refused to retroactively apply the law. The plaintiff in the current case, Henry Montgomery, has been in prison since 1963, when he was seventeen years old. The law that imposed the mandatory life without parole sentence for Mr. Montgomery has been invalidated by the Miller decision, but Louisiana has thus far resisted reconsidering pre-2012 mandatory sentences.

Life without parole sentences for children are applied with frightening frequency. In 2013, roughly 2,500 people were serving life without parole sentences that they were given as minors. This is a population we don’t trust with drinking alcohol, smoking cigarettes, or voting. Yet somehow we’re prepared to give up on them completely as a society? Here’s a gem from the Miller opinion, written by Justice Kagan:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him–and from which he cannot usually extricate himself–no matter how brutal or dysfunctional. It neglects the … extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores … his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Should this ruling in Miller be applied to those sentenced before 2012? From a moral standpoint, of course it should (none of Kagan’s points magically sprang into being in 2012). The legal argument will hinge on whether the new rule is substantive (those are retroactive) or procedural (those aren’t). Basically, Montgomery’s team is arguing that since Miller applies to the type of punishment that can be applied to a class of people, it’s substantive. Louisiana will argue that the change was procedural – in Louisiana specifically, the procedural change was a new hearing where minors can present evidence to reduce their sentence – and therefore should not be retroactive. The substantive nature of Miller strongly speaks to the substantive nature of Montgomery’s claim as well – how can a finding of cruel and unusual punishment be categorized as “procedural”?  

So – good for the Court for granting cert on the retroactivity issue. And shame on Louisiana (and Minnesota, Michigan, and Pennsylvania) for requiring Supreme Court intervention. Best wishes to Mr. Montgomery and his team for another step toward thoughtful, humane criminal justice.

Photographs of young people sentenced to life without parole (all taken within a year of conviction). Courtesy of Human Rights Watch, available here: http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offenders-serving-juvenile-life-without-parole

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