Will Justices Breyer and Kennedy Allow An Execution They Know (or Should Know) is Unconstitutional?
[Update - July 14, 2015, 7:30 p.m. PST]
The Supreme Court allowed David Zink to be executed tonight. Nevertheless, virtually all of what follows remains relevant. Texas is scheduled to execute Clifton Williams this Thursday, July 16th. Mr. Williams's attorneys will (or at least should) ask the Court to declare the death penalty unconstitutional. Perhaps over the next few days or weeks, the Court will rethink the wisdom of continuing to allow this barbaric practice. Otherwise, the next month could be ugly; after Mr. Williams, Texas plans to kill two other prisoners by August 13th.
[Original Post]
Today, the Supreme Court will face a decision of historic significance, and yet few outside the Court are talking about it.
On July 14th at 6PM, the State of Missouri insists on executing David Zink, convicted of murder in 2004. Thankfully, a team of lawyers—dedicated to Mr. Zink and his essential human dignity, and dedicated to Justice more broadly—is right now (and for weeks has been) working furiously night and day to save his life. Mr. Zink's would be the first execution since the Supreme Court issued its decision in Glossip v. Gross—in which two justices expressly questioned the constitutionality of the death penalty per se. Mr. Zink's trial was not just unfair, it was a farce. The jury that sentenced him to death was not told that Mr. Zink suffers from severe organic brain damage. Mr. Zink's execution places us at a crossroads—what the Supreme Court does now, in light of the signals it sent in Glossip, will portend something important for us as a society.
At the turn of the century, the United States was killing about 80 of its own citizens every year. Then, it was a sad but unremarkable fact that the heroic efforts of lawyers like Elizabeth Carlyle, Richard Sindel, and Kay Parish (Mr. Zink's lawyers) passed largely unnoticed by the general public.
But this is not the 1990s, and it would be passing strange were David Zink's fate to be decided absent substantial public scrutiny.
The United States of America "is undergoing a period of social transformation as profound and rapid as any it has seen since the 1960s." Among the great questions of social identity our country faces at the moment is whether we should be a people with a government that kills its own citizens. We are in the midst of a historic national debate over the legitimacy of capital punishment.
Although the public conflagration over capital punishment has been spreading for nearly a decade, Justice Breyer's soon-to-be legendary June 29th dissent in Glossip poured gasoline on the flames. In Glossip, Justice Alito gave his stamp of approval on Oklahoma killing its citizens through what Justice Sotomayor and three other Justices correctly characterized as "the chemical equivalent of being burned at the stake." Justice Breyer (joined by Justice Ginsburg) dissented from Justice Alito's decision in Glossip—and not just because Oklahoma's particular method of killing its own citizens is inhumane. Justices Breyer and Ginsburg dissented because they rightly (and finally) acknowledged what virtually all other Western nations have understood for decades: the whole notion of a government killing its citizens is beyond the minimum level of basic decency required for a society to call itself civilized.
But there is more. Many experts in reading the High Court's tea leaves (including distinguished legal scholars like Brandon Garrett, Lee Kovarsky, Christian Turner, and Robert J. Smith) say that Justice Breyer's dissent likely reflects the view of a MAJORITY of the Court. Numerous less-renowned commentators—including one particularly persistent blogger who has been shouting about this on a near-constant basis for more than two weeks—agree.
Although Richard Glossip lost his case in the Supreme Court, he remains alive. Unless the Supreme Court stays today's execution, David Zink will be the first person executed in this country since June 18th. Given that a possible majority today exists to question the constitutionality of the death penalty, executing Mr. Zink today—before the justices have a chance to consider the claim fully on its merits—would substantially undermine the American public’s confidence in our system of criminal justice, and raises the question of whether actors in the system are actively working to thwart the Court’s own ability to adjudge the constitutionality of our law.
The Supreme Court should stay David Zink's execution and thereby take one small step to realizing the evolved standard of decency that we have promised ourself as a people—as well as protecting its own authority to decide whether the execution is legal. An influential article by Professor Lee Kovarsky persuasively shows that no technical barrier stands in the way of the Supreme Court granting a stay.
Of course, the Supreme Court may validly decline to exercise its power in many circumstances, but this is not one of them. No issue in all of jurisprudence has "percolated" more systematically than the constitutionality of the death penalty, and no case is more worthy of the Court's time than one which would prevent an execution that five Justices already know would violate our fundamental law. Nor should any institutional concerns deter the Court from halting (at least temporarily) what it knows would be an unconstitutional execution. Justice Breyer's opinion in Glossip caused little public outcry. Few heads exploded (save for those of Justices Scalia and Thomas). And as we continually reach new historic lows in violent crime, there is little likelihood of the backlash that was seen after Furman v. Georgiatemporarily halted the death penalty in the 1970s (when our society was not yet prepared to take this step).
Moreover, the Court would irreparably undermine its own authority as constitutional arbiter if it fails to act now. It is clear from this Term’s opinions that the Court will review the death penalty on the merits in the not-distant future, and that decision can go either way. It would be a grave mistake to rush to kill now before the Court decides.
The Court that Justice Anthony Kennedy controls may be Burkean, inasmuch as Justice Kennedy believes social change should come only gradually. But there comes a point when even the most committed Burkean must acknowledge that change is long overdue. This—the first execution since the dissent in Glossipsounded the alarm—may be that opportunity.
This post has been edited/updated in response to comments. Contact the author of this piece at leejoshr@gmail.com.
[Update - July 14, 2015]: The original writ and the cert. petition are also included below.
Both documents raise as their question presented:
Whether the death penalty today violates evolving standards of decency and concepts of human dignity embodied in the prohibition against cruel and unusual punishment and the Eighth Amendment as applied to the states by the Fourteenth Amendment?
Petition for Certiorari
Original Writ (Part 1)
Original writ (Part 2)
[Update 2 - July 14, 2015]: The petition for certiorari in the Eighth Circuit case, and the motion for stay in the Supreme Court, are included below.