[U] To Be Certain, There Will Be No More Federal Executions — After 13 Rushed Ones, In Trump’s Waning Hours…

Continuing with our King Day 2021 theme — of changes Mr. Biden will implement immediately — and to be sure, these are changes that Dr. King long fought for. . . we will offer the wise Latina Justice Sotomayor’s blistering dissent, in the latest death penalty case, along with (at right) the case that completely convinced me to abandon the machinery of death, forever.

We may be certain that we will now return to the time when the federal death penalty had effectively been abolished, and life without parole was the effective outcome. And given the ongoing racial disparities in death-penalty eligibility, that can be the only. . . remotely just outcome. Here is that dissent (beginning at page 4), in pertinent part:

. . .JUSTICE SOTOMAYOR, dissenting.

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth.

To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes. One source of confusion has been the Federal Death Penalty Act (FDPA), which Congress enacted in 1994 to guide the imposition and implementation of federal death sentences. Pub. L. No. 103–322, Tit. VI, §60002(a), 108 Stat. 1959 (codified as amended at 18 U. S. C. §3591 et seq.). Prior to last July, the Federal Government had executed just three people since the enactment of the FDPA, two in 2001 and one in 2003. Many questions about the FDPA remain unanswered. . . .

The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale. . . .

This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not. Because the Court continues this pattern today, I dissent. . . .

It seems a scant victory, to return to avoiding killing people before their credible claims are exhausted, but we must start to return to honoring our higher principles — and quiet the howling mob’s cries for. . . blind blood-lust vengeance. That is about all these last 12 were.

We will now open on a better future, come Wednesday afternoon. That is all, go be of service, here on King Day 2021.

[Updated, from the case in the image, above right:]

“. . .A renowned example of racism infecting a capital sentencing scheme is documented in McCleskey v. Kemp, 481 U.S. 279 (1987). Warren McCleskey, an African American, argued that the Georgia capital sentencing scheme was administered in a racially discriminatory manner, in violation of the Eighth and Fourteenth Amendments. In support of his claim, he proffered a highly reliable statistical study (the Baldus study) which indicated that, “after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey’s life had his victim been black.” 481 U. S., at 325 (emphasis in original) (Brennan, J., dissenting). The Baldus study further demonstrated that blacks who kill whites are sentenced to death “at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks.” Id., at 327 (emphasis in original).

Despite this staggering evidence of racial prejudice infecting Georgia’s capital sentencing scheme, the majority turned its back on McCleskey’s claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism. . . . Faced with the apparent failure of traditional legal devices to cure the evils identified in Furman, the majority wondered aloud whether the consistency and rationality demanded by the dissent could ever be achieved. . . .”

I and many others now submit that it cannot. Here endeth the update.


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