death penalty – Page 2 – Prof. Zachary Wolfe, Esq.

The Court has issued decisions in a number of cases since my last post, but several of the most highly anticipated cases still remain. In addition to the typical Monday decision day, the last of which is next week (the 29th), the Court has added two decision day on Thursday and Friday this week. There are now 7 cases that were heard this term but still undecided. It’s possible that the Court will wrap up this week and not use Monday, but probably more likely that it will spread decisions over the 3 days that are currently on its calendar.

So an updated recap of what remains (ordered by date of oral argument):

Disparate impact under the Fair Housing Act, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (argued Jan 29). The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.” Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.” But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic? Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case involves the allocation of tax credits and the impact on housing voucher programs. Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers. The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers. Hence this suit, alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods.
Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2). Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
Affordable Care Act (“Obamacare”), King v. Burwell (argued March 4). Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state. Useful details in this article.
Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25). Important issues about what the EPA must consider when it regulates power plants. Fuller analysis is here.
Criminal law, Johnson v. US (argued April 20): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
Same-sex marriage, Obergefell v. Hodges (argued April 28). One of the most high-profile cases of the term.
Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

I’ve attended the last two decision days, walking into the Court at about 8:30. Last Thursday, there was barely any public line at that time, but yesterday, the line was getting close to capacity. With only three days left and so many significant cases, I would expect attendance to become more popular, so would suggest getting there as early as possible. (The lawyer section has not been full, if you happen to be a member of the Supreme Court Bar. But that may well change soon.)

The last two weeks in April will close oral arguments for the term. Along with the highly anticipated marriage equality cases, the Court will hear important criminal law cases, including the first death penalty case since 2007.

Several days in the closing weeks have only one case scheduled.

Monday, April 20

The Armed Career Criminal Act provides for stricter punishment for certain offenses, and the Court in Johnson v US will decide whether possession of a short-barreled shotgun constitutes a “violent felony” within the meaning of that Act.

Tuesday, April 21

In McFadden v US, the Court wades into the confusing area of regulating “designer drugs” developed by “underground chemists” — new substances that are not listed illegal drugs but produce the same effects, which Congress intended to regulate with the Controlled Substance Analogue Enforcement Act. This case raises the issue of whether the government must prove that the defendant knew the drug he had was an analogue to a listed drug.

Wednesday, April 22

Another one-case day, this time involving the takings clause, which is relatively rarely addressed by the Court, although this specific dispute was before the Court last year on a preliminary standing issue. It involves a Department of Agriculture program to stabilize raisin prices, which requires producers to surrender some of their supplies each year and be compensated when and if the government sells those raisins. The Court must decide whether this raises a Fifth Amendment issue (“taking” raisins rather than real property), and if so, whether the just compensation requirement can be satisfied with this sort of system.

Monday, April 27

Kingsley v. Hendrickson is an excessive force claim against jail officials. The jury was instructed that for the prisoner to win, he would have to prove, among other things, that “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.” The Court has accepted cert on the limited question of whether it should instead be enough to show that the officials “deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Tuesday, April 28 – marriage equality cases

In contrast to the one-case days, the Court has accepted cert. in four cases that raise questions related to marriage equality. The cases are all consolidated for argument together, with a total of 2 1/2 hours allotted (but I wouldn’t be surprised if it runs a little long).

Unlike the procedural, technical, and somewhat peripheral issues that kept us from true resolution of the overall issue last time, the Court this year has accepted cert. on questions that cut to the core:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?

A total of ninety minutes is allotted for oral argument on question 1. A total of one hour is allotted for oral argument on question 2.

Much has been written about these cases (Scotusblog has a set of links to recent stories here) so I won’t duplicate efforts. Suffice to say it will be a fascinating and historic day–get to the Court if you can, whether to try to make it in (which likely will require at least one overnight stay for the public line) or just to take in the demonstrations and press conferences out front.

Wednesday, April 29

Although the marriage cases are getting the bulk of public attention, an extremely important death penalty case is up for argument today, Glossip v. Gross. The first question presented speaks for itself:

(1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious;

In addition to considering the constitutionality of this sort of lethal injection cocktail, the Court has also accepted cert. on two further questions, involving the technical requirements for blocking executions that may violate constitutional requirements:

(2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

No further arguments this term, but decisions will be announced on Mondays

The Court will continue to sit and announce decisions on Mondays through the end of June, or until it has announced decisions in all cases argued this term. It may announce sittings on other days, as decisions get finalized. These sessions, too, are open to the public. We don’t know which cases will be issue on which days, but in recent years, the Court has announced its most high-profile cases in the last few seatings (which seems likely to recur, given the arguments being heard in the final week). Even then, the lines were relatively short and it is very interesting to hear the Justices announce and summarize the decisions (and sometimes even more interesting when there’s a spirited dissent!).

Barring unusual circumstances requiring an expedited hearing, the Court will then go on recess and not hear any more arguments until the first Monday in October.

Tag: death penalty

Final Decision Days – full recap

Final Arguments of the Term