The Death Penalty is Political: Florida Edition (Part I)

Perhaps there is no better reminder of just how political the death penalty is than Florida's recent decision to seek death for child rape. But for those hoping for another chapter in the "Ron Desantis Is Using the Death Penalty for Politics," you will be disappointed. The current episode reminds me not of Ron Desantis but of Bill Clinton and Barack Obama. 

Some background on the current moment.The Florida legislature, at the urging of Governor Desantis passed a law that authorized, as a matter of state law, the state to execute a person for the rape of a child. Guess who opposed such laws: people who work with victims of child rape. I was surprised at first to learn this, but their concerns are incredibly reasonable. Proving such crimes are incredibly difficult. The victims are overwhelming sympathetic, but inherently unreliable. It's not that kids lie. It's that they are simply unreliable and uncertain. 

On top of proof problems, there's the issue of who actually commits such crimes. The fear of a stranger attacking a child is huge. As a parent myself, I worry about the same daily. But the reality is that the person most likely to assault a child is someone they know. That means that putting execution on the table dramatically raises the stake of any accusation. Is it worth accusing Uncle X of Y if it means he will die? Kids, their caregivers, and their advocates have all made the calculation that having execution on the table is counterproductive to getting kids out of harms way. 

So have legislatures. Back in 2007, almost nowhere allowed for execution for such a crime. But Louisiana did. And, this is where Barack Obama comes in. During Obama's historic campaign, the United States Supreme Court in Kennedy v. Louisiana noted what an outlier Louisiana was in its execution practices and held that executing a person for the rape of child, as Louisiana allowed, was unconstitutional. 

Then-candidate Obama saw an opportunity. Let me pause for a moment. I am grateful that Barack Obama was our president. In some ways, I don't think we as a nation were ready for or deserved him. He is brilliant. He speaks in paragraphs (essays really) and seems like a kind and empathetic person who is incredibly hard working, thoughtful, and shares many of my own values. I'd love to play basketball with him, e.g. 

But, that same guy, while on the campaign trail, received word that the Supreme Court had held that the Eighth Amendment prohibited executing someone for the rape of a child. Did Professor Obama take the opportunity to explain why this was a sensible decision in light of the law as it existed and in light of the dynamics outlined above? No. He denounced the decision in no uncertain terms, opining that executing a person convicted of raping a child does not violate the constitution. 

Does this person, who also admitted uncertainty on the deterrent value of the death penalty really object to the Court's conclusion that the outlier practice of execution in such circumstances is per se cruel and unusual? I do not know and highly doubt this blog post will prompt a clarification. 

But his position was reminiscent of the democrat preceding him as president: William Jefferson Clinton. When then-Governor Clinton was campaigning for president, he hailed from the Arkansas Governor's mansion, a domicile now occupied by Sarah Huckabee Sanders. As he campaigned, he no doubt had on his mind the experience of Michael Dukakis, whose cerebral response to questions about capital punishment arguably doomed his candidacy for president. 

Clinton would not make the same mistake. While on the campaign trail, the case of Ricky Ray Rector reached Clinton's desk. Rector was profoundly impaired. After concededly committing a terrible crime, Rector tried to kill himself, firing a gun into his own head. He failed to take his own life, but was profoundly impaired as a result. 

On the night of his execution, Mr. Rector was provided the last meal of his choosing. As part of the meal, he requested pecan pie. As he was finishing the main course, he told the guards that he'd like to save the pie "for later." They did not explain to him, and apparently he did not grasp, that there would be no "later." The pie was thrown out after he was executed.

Clinton could have let the entire episode unfold without his presence. Or he could have stopped the execution altogether. But he chose a third way: returning from the campaign trail to Arkansas to oversee the execution. By all accounts, that choice cemented his reputation as a tough guy, someone willing to kill. 

With Clinton and Obama, it's hard to see either decision as principled in any way. Louisiana was an outlier, and Obama doubted the practical import of the death penalty. Clinton, the Rhodes scholar, was no fool, and surely knew that Rector need not be executed to do justice. But both men, now icons on the left, chose politics over principle.

Which brings me back to Florida. Desantis, a Yale grad like Clinton, knows that Florida's law is unconstitutional. It's not that he does not care. It's that he knows that railing against child rape is a good headline, even if the on-the-ground realities are far more complex and even if the law he endorsed is plainly unconstitutional. And, to be clear, I don't think it's even that Desantis proposed the law as some test to overturn Kennedy v. Louisiana. I think that like Clinton and Obama, he's using the death penalty to burnish his own reputation, regardless of who suffers as a result. 

SOC, the DP, and Habeas Corpus

I was in law school when Justice O'Connor announced her retirement. In an only-in-law-school moment, a student group put on a mock confirmation hearing and one of my classmates volunteered to read up on and mimic her proffered replacement: then-Judge Sam Alito. I remember little about the exercise beyond thinking, even then, that the undertaking was audacious for a twenty-two-year-old. 

Justice O'Connor's tenure on the Court entirely preceded my time as a lawyer. But I very much have grappled with her jurisprudence on capital punishment. And her passing ultimately affected the adjudication of one of my pending cases at the Court.

In Tison v. Arizona, Justice O'Connor all but overruled Enmund v. Florida, which had excluded from execution those guilty of felony murder. In Justice O'Connor's view, if a person was a major participant in the felony and had acted with a reckless disregard for human life, then that person could face death, even if they did not intend to kill. Tison thus greatly limited the reach of Edmund and made many death-eligible who would not otherwise be. 

When I teach Tison, I always get deep into the facts of the case because they are so bad. The murders (plural) were brutal and on the heels of a prison escape, in which the defendants had managed to smuggle a cooler full of guns into a high security facility. Among many others, I end up positing a couple of questions to my students: (1) given how heartless the murders were, why didn't the state just charge intentional murder and (2) is this a prime example of bad facts making bad law? As I see it, Tison represents a retrenchment from the Supreme Court's willingness to insistent on a robust and doctrinally consistent approach to the administration of the death penalty. 

As part of my Tison discussion, I also urge my students to listen to a young Alan Dershowitz arguing the case on behalf of the condemned. (Available here.) My students largely think of Dershowitz as a pro-Trump Fox News personality, so I enjoy making them think more broadly about who people are and can be. 

But to return to Justice O'Connor's work, I'll mention two other of her cases which loom large in my own practice: Teague v. Lane and Penry v. Lynaugh. In Teague, the Court had to decide whether its holding in Batson v. Kentucky that the state's decision to eliminate jurors for racist reasons could serve as the basis to attack convictions that were on the books prior to Batson being decided. Prior to Teague, the rule was basically that "important" protections would be applied to final convictions. 

I don't know what motivated Justice O'Connor, but many think of her as a pragmatist, and I imagine issuing a ruling that Batson was not "important" was unappetizing. I also imagine the conservative pragmatist was not inclined to delve into jury selection practices in every single existing conviction. So, rather than denigrating Batson outright, she--and the Court--adopted a formalistic approach to when new decisions would apply to final convictions. That approach, as articulated in Teague, would be the beginning of another retrenchment, this time on the federal courts' role in enforcing constitutional rights in state criminal proceedings (i.e. habeas corpus). To be sure, the current Court has taken the ball and run with it, but O'Connor started laying the groundwork in Teague. 

Penry has played a smaller role in my own practice, but has been an object lesson in both perseverance and resistance. On the same day that the Court held it was constitutional to execute juveniles, it held, in Penry  that it was constitutional to executed the intellectually disabled. Fifteen years later, the Court would have disavowed both decisions. But it was a bad day in 1989 for the intellectually disabled facing execution when Justice O'Connor issued her decision in Penry. 

The later disavowal of Penry, in the landmark decision of Atkins v. Virginia, is only one of a few lessons about perseverance from the case. The other major holding in Penry is that Texas's capital sentencing scheme failed to give effect to intellectual disability in weighing whether death was the appropriate sentence. That question would come before the Supreme Court again and again. It took repeated intervention by the Supreme Court because the State of Texas and the lower state and federal courts failed to abide by the narrow protections Justice O'Connor demanded in her majority opinion. 

Unfortunately, similar acts of resistance still plague capital punishment. Arizona refused to apply a 1994 case until the Supreme Court insisted it do so in 2016. And even then, the state invented procedural barriers to review so unpredictable that the Supreme Court this year held those barriers could not stand in the way of reviewing whether the 1994 precedent was violated. So the Penry-type resistance lives on.

With Justice O'Connor's passing, I decided to review the cases occupying her final days as a Justice. And in one instance after another, she confronted requests to halt executions. Largely she denied those requests, along with her other colleagues on the Court. But in at least one instance, she stopped an execution. With that vote, she set the briefing schedule for the case that now provides the standard for whether stays of execution should be granted. 

Which brings me to how her passing affected my own practice.  As I've already blogged about, the Supreme Court last May halted one of my client's execution date. The case has been pending at the Supreme Court ever since. He will get a decision immediately following one of the Supreme Court's conferences, probably on the Monday immediately following the Court's conference. 

The Court was scheduled to meet this last Friday, December 1 to, among many other things, discuss his case. But with Justice O'Connor's passing, the Court cancelled conference. So our case was rescheduled for the Court's next conference on December 8. 

Even in her passing Justice O'Connor's legacy lives on in capital cases.