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Supreme Court Condones Executions as Public Opinion Shifts

July 15, 2020, 8:50 AM

The Supreme Court’s middle-of-the-night clearance of the first federal execution in 17 years on Tuesday is the latest example of the high court’s strict stance toward death row defendants’ claims.

The court’s tendency to rule in favor of the government in capital punishment cases, which has become more pronounced since Justice Brett Kavanaugh replaced Anthony Kennedy, comes as U.S. public approval of the death penalty reaches historic lows.

The Republican-appointed majority paved the way to resume federal executions less than a week after ending a term in which the court consistently rejected capital defendants’ claims.

The justices this term denied multiple defendant stay requests, ruled 5-4 along ideological lines in the only argued death penalty case, and then allowed federal executions to resume, a record that contrasts to some rulings favoring defendants by lopsided margins in other contexts, like public corruption.

Kent Scheidegger, legal director of crime victim advocacy group the Criminal Justice Legal Foundation, said it was a “good term” that showed the court “is fortified on carrying out what the law is rather than making it up.”

There are more federal executions to come. The Justice Department has scheduled a second federal inmate to die by lethal injection on Wednesday with two more to follow on July 17 and next month. All four men were convicted of killing children.

The majority’s per curiam opinion on Tuesday brushed aside an Eighth Amendment cruel and unusual punishment claim that the federal appeals court in Washington hours earlier said merited serious consideration.

Justice Sonia Sotomayor called the majority’s move “dangerous” in an exchange of opinions that echoed the 5-4 ruling in Bucklew v. Precythe.

In the Bucklew case last term, the justices split along familiar lines in rejecting another inmate’s Eighth Amendment challenge. Kennedy had voted to grant Russell Bucklew a stay, but retired before the case was decided. Kavanaugh joined fellow Trump appointee Neil Gorsuch’s opinion against Bucklew, in which the majority warned against last-minute defense claims.

The majority cited the case on Tuesday in chastising what it deemed the last-minute relief granted July 13 to Daniel Lee and other inmates by a Washington trial court. The judge and the inmates blamed the government for setting the execution dates too quickly.

This is the second recent death penalty appeal that highlighted the difference replacing Kennedy with Kavanaugh has meant for the court’s approach to capital punishment. On July 8, the court declined to block Texas from executing Billy Joe Wardlow, who sought to expand a 5-4 ruling authored by Kennedy that sided with death row inmates.

When it comes to Kavanaugh, it’s “going to be hard to get him to a place where Kennedy was on those issues,” said death penalty expert Margery Koosed, professor emeritus at the University of Akron School of Law.

Justice, Morality

In a statement Tuesday on Lee’s execution, Attorney General William Barr said “the American people have made the considered choice to permit capital punishment.”

Unlike his previous statement in setting Lee’s and the other impending federal executions, Barr’s didn’t reference “the families left behind.” Some relatives of Lee’s victims opposed to the execution unsuccessfully tried to halt it.

They’re not alone in opposition.

A May 2020 Gallup poll shows the percentage of Americans who said they believe the death penalty is morally acceptable fell six percentage points in one year, to 54%, the lowest level since Gallup started asking in 2001.

Robert Dunham, the Death Penalty Information Center’s executive director, said “the majority of the Court is increasingly out of step with the rest of the country on death penalty issues.”

Pandemic Appeals

Ministers to Wesley Ira Purkey and Dustin Lee Honken, the two federal inmates scheduled for execution Wednesday and July 17, respectively, have pending legal claims trying to halt the executions. They argue the pandemic is putting the ministers in danger and thus at odds with their duty to spiritually advise the inmates at the execution.

The justices, who heard arguments remotely in May due to the pandemic, haven’t shown much sympathy thus far for Covid-19-related claims by death row inmates and their supporters.

The family of Lee’s victims cited Covid-19 issues in saying they wanted to travel to the execution but worried about the potential health risks of traveling to the federal execution site in Terre Haute, Ind. The government revealed over the weekend that a prison staffer there had caught the virus.

The justices denied the family’s claim simultaneously with the protocol appeal and another of Lee’s claims. No justices recorded dissents from Lee’s other claim or the family’s.

The denials cleared the way for Lee’s execution, the third in the U.S. since the pandemic hit. The justices likewise enabled Missouri to carry out the country’s first pandemic-era execution in May. They rejected inmate Walter Barton’s claim that restrictions imposed due to the virus prevented his legal team from gathering evidence that he said could help prove his innocence.

Wardlow’s Texas execution was the second in the U.S. during the pandemic that’s killed more than 135,000 Americans.

Kavanaugh, Roberts

While the term was a tough one for inmates, some fracture in the Republican appointed majority continued to show. Kavanaugh and Chief Justice John Roberts didn’t always joining their three colleagues - Gorsuch, Samuel Alito and Clarence Thomas - who take a stricter approach to capital cases.

Kavanaugh authored the only decision in an argued case this term that squarely dealt with a death penalty issue, McKinney v. Arizona. The justices decided along 5-4 lines the sentencing case from Arizona impacting 20 inmates in the state.

But only Alito, Thomas, and Gorsuch dissented from an unsigned opinion last month sending a capital case back to Texas for further review on ineffective assistance of counsel grounds. The defense lawyer whose performance was at issue “performed virtually no investigation of the relevant evidence,” the court said. Koosed said the case, Andrus v. Texas, was a bright spot in the term for defense litigators.

Writing for the trio in dissent, Alito said that his colleagues cleared “this case off the docket,” but did so “on a ground that is hard to take seriously,” arguing that the majority didn’t give due weight to the state court’s analysis in rejecting the inmate’s claim.

Spiritual Advisers

Still left unresolved are requests pending in a federal appeals court from ministers for two of the federal inmates scheduled to be executed.

The issue of spiritual advisers in the context of executions is a familiar one for the court, having generated caustic exchanges among the justices.

In early 2019, a Republican-appointed majority condoned the execution of a Muslim inmate without an imam in the chamber, prompting widespread public backlash. Kavanaugh suggested in a subsequent case from Texas that the state could either let in advisers of all faiths or none at all.

The state took the court’s junior justice up on the idea, barring all advisers.

That led to a challenge this term from a Christian inmate.

The justices granted him a stay last month. An unsigned order directed the Texas district court to “promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”

That litigation is still playing out in the lower courts, and could come back to the justices for a final say.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at