Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Capital Cases

Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Capital Cases

Description

I want to talk about a body of United States Supreme Court decisions that offend humanity and reason. They forsake fairness, orderly procedure, intelligence, and judicial efficiency for no stated reason and no rational purpose. Insofar as their results are explained in opinions, the opinions are delusory in the double sense of being built upon delusion and promoting it. Their delusiveness is what I chiefly want to explore. This involves a kind of warping of reality that can allow civilized people to conceal from themselves and others that they are engaging in atrocities. It is a principal ingredient in getting American judges—who, after all, include a great many very decent individuals—to feel and sound self-righteous as they play their necessary, mindless part in killing human beings under the language of obedience to the largely self-made rules of capital punishment jurisprudence. The specific cases I examine are those in which the Supreme Court vacates a stay of execution that a lower federal court has issued pending judicial consideration of a condemned prisoner's claims that his or her conviction or death sentence violates the Constitution of the United States. The cases come up at various procedural stages, but the basic scenario is this: A person has been sentenced to death for murder, and his or her date of execution is set. S/he files a petition for habeas corpus in a federal district court, which has jurisdiction to determine whether the conviction or sentence was obtained in disregard of the guarantees of individual rights embodied in the federal Constitution. The federal district judge concludes that he or she cannot practicably give appropriate consideration to the petitioner's claims before the hour set for execution, so s/he issues an order temporarily forbidding (“staying”) the execution until the district court has time to deliberate about the merits of the claims. (Or a federal district judge—or a judge or judges of a federal court of appeals—may issue a similar, temporary stay to give the petitioner time to appeal to the court of appeals from an adverse decision on the merits by the district court. Or any of these judges may issue a similar, temporary stay to give the petitioner time to seek the United States Supreme Court's discretionary review of an adverse decision by the court of appeals. The state's lawyers then ask the Supreme Court to set aside (‘vacate”) this stay order so that the execution can be carried out without delay. The Court does so, after summary review of the papers filed by the state's lawyers and any response to them that the condemned prisoner's lawyers are able to file quickly. The first time the Court did this was on August 10, 1982, in the case of a Virginia prisoner named Frank Coppola. A word of historical background will be useful: In 1965, the NAACP Legal Defense Fund began to coordinate a national effort to challenge the death penalty throughout the United States on federal constitutional grounds. It developed a number of substantive constitutional arguments, embodied them in form pleadings that included applications for a stay of execution, instructed local lawyers on the arguments and the procedures for presenting them, and undertook to represent any condemned inmate for whom no other competent representation could be found. After June 2, 1967, no executions occurred in the United States for almost ten years. In 1972 a divided Supreme Court invalidated virtually all then extant capital punishment statutes by a series of decisions of uncertain scope. The state enacted new statutes, and in 1976 a divided Supreme Court sustained some kinds of statutes while invalidating others. Again the scope of the Court's decisions was unclear; difficult questions about the constitutionality of various capital trial and sentencing procedures and their applications persisted. These were taken up and decided—some going one way, some another—in dozens of additional Supreme Court rulings and in hundreds of rulings of the lower federal courts on habeas corpus petitions for the next two decades. The Court's 1972 and 1976 cases marked a new beginning for constitutional analysis of a wide range of issues, including the shape that capital punishment statutes could take,10 the validity of particular features of such statutes, the nature of the conduct for which a death sentence could be imposed, whether sundry procedures were permissible in the trial of capital cases, and whether sundry other procedures were required. The first person to be executed while this body of issues was shaking down was Gary Gilmore. Gilmore fired his lawyers and waived his appeals. When his mother instituted proceedings questioning his mental competence, he joined the State of Utah in opposing them. The U.S. Supreme Court sustained his right to die as a volunteer with the constitutionality of his conviction and sentence unresolved; and he was killed by a firing squad on January 17, 1977. Five and a half years later, by midsummer 1982, only three additional people had been executed—two of them, like Gilmore, volunteers.

Source Publication

The Killing State: Capital Punishment in Law, Politics, and Culture

Source Editors/Authors

Austin Sarat

Publication Date

1999

Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Capital Cases

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