Saturday, November 12, 2016

It's Alive! It's Ah-live!!

The title of this post was uttered by the irreplaceable Gene Wilder in the 1974 Mel Brooks classic, Young Frankenstein. It is meant as dark humor on the Death Penalty in the United States. When we awoke on Tuesday November 8, 20016 there was reason to believe the Death Penalty was on it's own death gurney. By midnight, the Death Penalty was not only off that gurney, but ready for a metaphorical marathon run.

To understand why, start with the liberal utopia of California.

California has not executed anyone in more than 10 years. There are 741 people on California's death row, nearly three times the 254 in Texas. Dueling propositions Prop 62 and Prop 66 were on the California ballot on Tuesday, November 8, 2016. Prop 62 proposed to replace the Death Penalty with Life Without Possibility of Parole (LWOP). Prop 66, in opposition to Prop 62, proposed to speed up executions by designating trial courts to hear petitions challenging death row convictions, limiting successive petitions and expanding the pool of lawyers who could take on death penalty appeals

What better chance could there be for abolitionists to underscore their narrative that a growing consensus against the Death Penalty exists in this country? Had not recent polling showed national support for the Death Penalty at the lowest level since the 1970s? What better venue than California to translate these polling numbers to popular referendum that this growing consensus exists to end the Death Penalty? 

Ah, but a funny thing happened on the way to Herr Frankenstein's castle.

  Prop 62 lost badly, mustering a meager 46% of "yes" votes to eliminate the California Death Penalty, while Prop 66% hung on to pass with a 50.9 "yes" vote. Prop 66 will likely wreak chaos on state and federal habeas petitions in that befuddled state. Sorting out the fallout is for later. It is enough to write that Californians have spoken rather decisively: They favor the continued option of the Death Penalty.

Next up, Nebraska. Last year, their unicameral state legislature took the Death Penalty off the books as a punishment. The reason? All the fiscal and moral reasons Death Penalty abolitionists trumpet - costs of prosecution, length of appeal, and error rates among those given the ultimate penal penalty. There was also the added value argument that eliminating the Death Penalty through an elected legislature was democratic evidence of this growing consensus.

Unfortunately, there was such a popular outcry over the legislation that a referendum was placed on the Nebraska ballot to repeal the legislative action. And, alas, Igor, November 8, 2016 was not a good night for the bleeding hearts in the heart-land. Over  61% of Nebraskans voted to re-instate the Death Penalty. That folks is a abolitionist butt kicking.

So much for a popular consensus against the Death Penalty.

Finally, of course, is President-elect Trump. He will soon be nominating a Justice to the Supreme Court of the United States (SCOTUS). That appointment will not tip the current ideological balance on SCOTUS - but Justices Ruth Bader Ginsberg (83 years old) and Anthony Kennedy (80 years old) are the two oldest members of SCOTUS. If President-elect Trump replaces either, or both, SCOTUS will be conservative in ways not seen since before Franklin Roosevelt was President.

This means  the machinery of death will not only continue to engage, but a SCOTUS more focused on federalism and individual State's rights will allow States to operate that machinery with much, much less federal judicial intervention.

For example the Death Penalty case Moore v. Texas currently set for oral argument on November 29, 2016. Moore challenges the way Texas determines if capital defendants have Intellectually Disability (ID) for purposes of existing constitutional exclusion from the Death Penalty. Texas has defined ID in such a way that a capital defendant may be clinically ID, but not too ID for Texas to sentence them to death.

My sense is Texas will be called to heel by SCOTUS in Moore. However, this SCOTUS leash will get much, much longer if President-elect Trump and a GOP Senate replace Ginsburg and/or Kennedy. A state-rights oriented SCOTUS would look at the State legal chicanery at work circumventing ID exclusion from the Death Penalty in Moore and collectively shrug their shoulders.

Translation? A Constitutional right with neither remedy nor enforcement.

And the Rule of Law? A Frankenstein. 

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